WP/34923/2006 of ANNAI K.K.K.SAMPOORANI AMMAL Vs BHARATHIYAR UNIVERSITY on 22 December 2006

1. By an order dated 4.1.2006, the National Council forTeacher Education granted recognition to the petitioner to start aB.Ed. degree course for the academic year 2005-2006 and the StateGovernment also issued a No Objection Certificate on 1.3.2006 for thesame academic year 2005-2006.

https://hcservices.ecourts.gov.in/hcservices/2. But on an application dated 5.1.2006 submitted by thepetitioner for the grant of affiliation, the Syndicate of theUniversity, in its meeting held on 24.3.2006, decided to grant affiliation only for the academic year 2006-2007 on the short groundthat there would be lack of adequate term days, for the academic year2005-2006. The said decision communicated by the University by itsorder dated 18.4.2006, is under challenge in this writ petition.

3. I have heard Mr.V.Ayyadurai, learned counsel for thepetitioner and Mr.M.Sekar, learned Special Government Pleader(Education) for the respondent.

4. The sum and substance of the case of the petitioner inthe writ petition is that since NCTE had granted recognition for theacademic session 2005-2006, the University has to sign on dottedlines granting affiliation for the same academic session and that itshall have no concern of its own and no independent judgment of itsown.

5. As stated above, the Syndicate decided to grantaffiliation for the academic year 2006-2007, on the only ground thatthe students admitted to the institution would not be in a positionto complete the requisite number of term days. An academic year as isnormally understood commences from June of a particular year and endswith May of the next year. Such a pattern is actually distorted inthe case of admission to Professional Courses, on account of the factthat the admission procedure to Professional Courses has becomehighly complicated and time consuming. Therefore, in many of theProfessional Institutions, the academic year commences in July/Augustand sometimes in September also of a particular year. This is why,the Supreme Court said that admission to Medical Colleges shall notbe made beyond 30[th] September of a year, for that academic year.

6. Even in respect of Teacher Training Institutes offeringB.Ed., Degree, the admissions commence in October/November, in viewof Single Window Counselling, but in any case, they can not spillover beyond the first of January. Therefore, the reason stated in theimpugned order that if affiliation is granted in March 2006 for thatparticular academic year (2005-2006), the students would not be ableto complete the requisite number of term days, is a genuineapprehension on the part of the University. Hence what remains to beconsidered is, as to whether the University was bound to close itseyes to the lack of term days, and grant affiliation, for the sameacademic year, merely because the NCTE had granted recognition for aparticular academic year.

7. Mr.V.Ayyadurai, learned counsel appearing for thepetitioner contended -(a) that since the NCTE granted recognitionby its order dated 4.1.2006 for the academic year2005-2006, the University was bound to grantaffiliation for the same academic year, in viewof the mandatory provisions contained in Section14(6) of NCTE Act, 1993 r/w Sections 17(3) and 17https://hcservices.ecourts.gov.in/hcservices/(4) of the Act; (b) that the format of undertaking to beexecuted by the applicant institute in Appendix 1-D Form under NCTE Regulations 2002 and theformat of undertaking to be executed in Appendix2-C Form by the University under the NCTERegulations 2002, make it clear that an instituteis entitled to admit students immediately afterrecognition and that the restriction placed bythe University Act and Statutes that admissionsshall be made only after affiliation is granted,is an encroachment into the occupied field of aCentral Legislation;

(c) that in view of the judgments of theSupreme Court in Union of India vs. ShahGoverdhan L.Kabra Teachers' College ((2002) 8 SCC228) and in State of Maharashtra vs. SantDnyaneshwar Shikshan Shastra Mahavidyalaya andOthers (2006 (3) Scale 675), the field of TeacherEducation is fully occupied by the NCTE Act,1993, enacted by the Parliament under Entry 66 ofList-1 and any encroachment made by any of theprovisions of the relevant University Act shallbe deemed to be inoperative; andd) that after the judgment of the DivisionBench of this Court in Vinayaka Mission's Collegeof Nursing and Para-Medical Sciences vs. The T.N.Nurses and Midwives Council (2006 (4) CTC 162),the University has no power to reject anapplication on the ground of a cut off date or onthe ground that it is belated, once an expertbody under the Central Legislation had grantedrecognition.

8. All the above contentions basically stem from the lawnow settled that the field occupied by NCTE Act, 1993, shall not beencroached by the University, in view of the relevant Entries in theSeventh Schedule to the Constitution. Entry 66 in List I (Union List)relates to "co-ordination and determination of standards ininstitutions for higher education or research and scientific andtechnical institutions." Entry No.25 in List III (Concurrent List)relates to "Education, including Technical Education, MedicalEducation and Universities".

9. Therefore, it is the stand taken by the petitioner thatonce the Parliament enacted a Legislation relating to a particularfield of education, the expert body constituted under the saidLegislation shall have supremacy over the affiliating bodies like theUniversities, which are created only by the Acts of the Legislaturesof the States.

10. In order to test the reach of the said contention, itis necessary to take a bird's eye view of the provisions of the NCTEAct, 1993, and the Regulations framed thereunder, as well as thehttps://hcservices.ecourts.gov.in/hcservices/University Act and Statutes.

11. The NCTE Act, 1993, came into force on 1.7.1995 and the object of the Act as stated in the preamble is as follows:-

"An Act to provide for the establishment of aNational Council for Teacher Education with aview to achieving planned and coordinateddevelopment of the teacher education systemthrough out the country, the regulation andproper maintenance of norms and standards in theteacher education system and for mattersconnected therewith."

Thus, the Act was enacted with the twin objects of:- (a) Achieving planned and coordinateddevelopment of teacher education system throughout the country and (b) Regulation and proper maintenance ofnorms and standards in the teacher educationsystem.

12. For the purpose of achieving the above objects, the Actprovided for the establishment of a National Council, whose functionswere laid down under Section 12 of the Act. Section 12 imposed a dutyupon the Council to take steps to achieve the twin objectives of theAct and empowered the Council to do certain things for the purpose ofperforming its functions under this Act. Interestingly, one of thefunctions imposed upon the National Council under Section 12 (m), is"to take all necessary steps to prevent commercialisation of teachereducation." This duty imposed upon the Council, is to be kept in mindwhile deciding the issue, since the main grievance of the petitioneris that the huge investment made by them in the infrastructure, wouldnot get a return for the year 2005-2006, if affiliation is postponedto 2006-2007.

13. Chapter IV of the Act dealing with "Recognition ofTeacher Education Institutions" makes provisions for recognition ofinstitutions offering courses or training in teacher education,permission for any new course or training, the affiliation to begranted, the contravention of the provisions of the Act and itsconsequences and appeals.

14. The sheet anchor of the case of the petitioner is onthe basis of the tone and tenor of sub Section (6) of Section 14,which reads as follows:- "(6) Every examining body shall, on receiptof the order under sub section (4) -(a) grant affiliation to theinstitution, where recognition has beengranted; or(b) cancel the affiliation of theinstitution, where recognition has beenrefused."

https://hcservices.ecourts.gov.in/hcservices/

15. The word "examining body" appearing in the aforesaid Section 14(6), is defined under Section 2(d) to mean "an University,Agency or Authority to which an institution is affiliated forconducting examinations in teacher education qualifications."

16. Therefore the contention raised on behalf of thepetitioner is that once an order of recognition is granted by NCTE,the University (which is the examining body) is obliged to simplyfollow suit, on account of the clear mandate of the Section that it"shall grant affiliation".

17. Other than Section 14, there are also other provisionsin the Act, to which my attention was drawn by the learned counselfor the petitioner. Section 16 of NCTE Act, 1993 reads as follows:-"16. Affiliating body to grant affiliationafter recognition or permission by the Council:-Notwithstanding anything contained in anyother law for the time being in force, noexamining body shall, on or after the appointedday, -(a) grant affiliation, whetherprovisional or otherwise, to anyinstitution; or (b) hold examination, whetherprovisional or otherwise, for a course ortraining conducted by a recognisedinstitution,Unless the institution concerned has obtainedrecognition from the Regional Committee concerned,under Section 14 or permission for a course ortraining under Section 15."

Sections 17(3) and 17(4) of the NCTE Act, 1993, read as follows:- "17. Contravention of provisions of the Actand consequences thereof.-- (3) Once therecognition of a recognised institution iswithdrawn under sub-section(1), such institutionshall discontinue the course or training inteacher education, and the concerned Universityor the examining body shall cancel affiliationof the institution in accordance with the orderpassed under sub-section(1), with effect fromthe end of the academic session next followingthe date of communication of the said order.(4) If an institution offers any course ortraining in teacher education after the cominginto force of the order withdrawing recognitionunder sub-section(1), or where an institutionoffering a course or training in teachereducation immediately before the appointed dayhttps://hcservices.ecourts.gov.in/hcservices/fails or neglects to obtain recognition orpermission under this Act, the qualification inteacher education obtained pursuant to such course or training or after undertaking a courseor training in such institution, shall not betreated as a valid qualification for purposes ofemployment under the Central Government, anyState Government or University, or in anyschool, college or other educational body aidedby the Central Government or any StateGovernment."

18. A combined reading of Sections 14(6), 16, 17(3) and 17(4) shows that what is primarily required by NCTE Act, 1993 is thatthe National Council and the University should act in tandem and notat a tangent. The plain and simple message that is sought to beconveyed by these Sections of the NCTE Act, 1993, is that theUniversity shall grant affiliation only if NCTE grants recognitionand shall refuse affiliation if NCTE refuses recognition. Similarlyif NCTE withdraws recognition, the University shall also withdrawaffiliation and the qualification acquired from an unrecognisedinstitute shall not be treated as a valid qualification foremployment in any State or Central Government or Government Body. Inother words, the decision of the University to grant or not to grantor to withdraw affiliation, should coincide with the decision of theNCTE to grant or not to grant or to withdraw recognition. What isactually sought to be achieved by Sections 14(6), 16, 17(3) and 17(4)of NCTE Act, 1993, is an identity of mind and uniformity of objectiveto ensure that there is proper maintenance of norms and standards, asspelt out in the Statement of Objects and Reasons. The same cannot bestretched to such an extent, as to make affiliation, a merecounterfoil to an order of recognition.

19. The object of the above provisions of NCTE Act, 1993,is only to ensure coordination and co-existence with mutual respectbetween NCTE and the affiliating University and I am unable to seeany intention on the part of the Parliament, to dwarf theUniversities, by incorporating these Sections, in NCTE Act, 1993.

20. Coming to the case law on the issue, it is seen that inState of Tamil Nadu vs. Adhiyaman Educational and Research Institute(1995 4 SCC 104), the Supreme Court had an occasion to consider therole of the All India Council for Technical Education (AICTE) vis-a-vis the role of the University, with reference to Entry 66 of theUnion List and Entry 25 of the Concurrent List. After comparing theCentral Act viz., AICTE Act, and the Madras University Act, theSupreme Court found that there was a conflict between and overlappingof the functions of the AICTE and that of the University. Therefore,after listing out the "field occupied by the Central Act", in para-30of the judgment, the Supreme Court sustained the role of theUniversity in so far as the grant of affiliation is concerned. Thefollowing observations in para-30 of the said judgment, is ofsignificance:- https://hcservices.ecourts.gov.in/hcservices/"The Central Act has been enacted byParliament under Entry 66 of the List I tocoordinate with and determine the standards of technical institutions as well as under Entry 25of List III. The provisions of the University Actregarding affiliation of technical colleges likethe engineering colleges and the conditions forgrant and continuation of such affiliation by theUniversity shall, however, remain operative butthe conditions that are prescribed by theUniversity for grant and continuance ofaffiliation will have to be in conformity withthe norms and guidelines prescribed by theCouncil in respect of matters entrusted to itunder Section 10 of the Central Act."

21. While elucidating the ratio laid down under the saidjudgment, the Supreme Court made it clear in para-41(iv) that thequestion whether there was any repugnancy will have to be analysedfrom the facts of each case. Para 41(iv) of the judgment inAdhiyaman's case, reads as follows:-

"(iv) Whether the State Law encroaches uponEntry 66 of the Union List or is repugnant to thelaw made by the Centre under Entry 25 of theConcurrent List, will have to be determined by theexamination of the two laws and will depend uponthe facts of each case."

22. The next case arose under the Indian Medical CouncilAct, 1956, in Thirumuruga Kirupananda Variyar ThavathiruSundaraswamigal Medical Educational and Charitable Trust vs. State ofTamil Nadu ((1996) 3 SCC 15). The Supreme Court held in that casethat after the introduction of Section 10-A in the Indian MedicalCouncil Act, the provision contained in Section 5(v) of the TamilNadu Dr. M.G.R. Medical University Act, requiring prior permission ofthe State Government for establishing a Medical College, becamerepugnant.

23. In Jaya Gokul Educational Trust vs. Commissioner ofSecretary to Government (2000 (5) SCC 231), the Supreme Court againreiterated the principles laid down in Adhiyaman's case. But evenwhile doing so, the Supreme Court did not reduce the role or statusof the University, in so far as matters not covered by the CentralAct were concerned. As a matter of fact, the Supreme Court took notein para-28 of the said judgment that under Regulation 8 of AICTERegulations, the University is one of the Agencies consulted by theCouncil and hence the University had an opportunity even at thatstage, (before the grant of recognition) to bring to the notice ofthe AICTE any default on the part of the college seeking recognition.Unfortunately, there is no provision in NCTE Regulations 2002, whichis analogous to Regulation 8 of the AICTE Regulations. Therefore, noconsultation takes place with the University, before the grant ofrecognition by NCTE. In para-30 of the judgment, in Jaya Gokulhttps://hcservices.ecourts.gov.in/hcservices/Educational Trust's case, the Supreme Court held that the "Universityshould have acted on the basis of the permission granted by AICTE andother relevant factors in the University Act or Statutes, which are not inconsistent with AICTE Act or its regulations." In other words,the Supreme Court not merely directed the University to go by thepermission granted by AICTE, but also take into account "otherrelevant factors in the University Act or Statutes which are notinconsistent with the AICTE Act or Regulations." In para-31 of thesame judgment, while issuing necessary direction to Mahatma GandhiUniversity, the Supreme Court made matters explicitly clear in thefollowing terms:- "The direction to Mahatma Gandhi Universityto consider the application of the appellant forfinal affiliation or continuance of affiliationis confirmed and this has to be done on the basisof the approval granted by AICTE dated 30.4.1995or any other relevant factors in the UniversityAct or its Statutes, which are not inconsistentwith the AICTE Act or its Regulations."

24. Thus, it is clear that the University need notnecessarily act as an invalid creature, simply following the dictatesof its Master namely NCTE. All the judgments of the Supreme Courtarose out of cases where either the State Government insisted upon aprior approval from them or the University Acts contained a provisionfor prior approval from the State Government. The repugnancy noticedin almost all cases was only in the matter of the requirement of NoObjection Certificate from the State Government and not with respectto the academic standards prescribed by the University.

25. Much reliance is placed upon the judgment of theSupreme Court in State of Maharashtra vs. Sant Dnyaneshwar ShikshanShastra Mahavidyalaya and Others (2006 (3) Scale 675). My attentionwas particularly drawn to paragraphs 6,32, 35, 51, 52, 61, 62, 67,73, 76 and 77 of the said judgment. As seen from paragraph 6 of thejudgment, the case before the Supreme Court arose out of theUniversity insisting upon a permission from the State Government, asa condition precedent for the grant of affiliation, by relying uponthe provisions contained in Maharashtra Universities Act, 1994. Thepermission to be obtained from the Government had nothing to do withthe maintenance of norms and standards or for attaining theexcellence in the field of education. It is in this background, whichis made out very clearly in paragraph-6 of the judgment that we haveto read the contents of the other paragraphs of the said judgment.While paragraphs-32 and 35 extracted the provisions contained in theAct and the Regulations, paragraphs-51 and 52 of the judgment dealtwith the law laid down in St. John Teacher Training Institute's case.In paragraph-61, the Supreme Court held that in so far as thecoordination and determination of standards in institutions forHigher education and Research, Scientific and Technical Institutionsare concerned, the subject is exclusively covered by Entry 66 of ListI of Schedule VII to the Constitution and State has no power toencroach upon the legislative power of the Parliament. In paragraph-https://hcservices.ecourts.gov.in/hcservices/62, the Supreme Court laid emphasis that "it is thus clear that thefield is fully and completely occupied by an Act of Parliament andcovered by Entry 66 of List I of Schedule VII." But the last line of paragraph-62 made it clear that the law laid down by the SupremeCourt therein, was in the context of State Government refusingpermission by relying upon a State Act.

26. In paragraph-67, the Supreme Court again held that thefinal authority vested with the NCTE. But again in the last line ofthe said paragraph, the Supreme Court made it clear that the absenceor non-production of NOC was immaterial and irrelevant so far as thepower of NCTE is concerned.

27. In paragraph-74, the Supreme Court held that "inaccordance with the provisions of 1993, Act, final decision can betaken only by NCTE and once a decision is taken by NCTE, it has to beimplemented by all authorities in the light of the provisions of theAct and the law declared by this Court". But the context in which thesupremacy of NCTE was upheld by the Supreme Court in the said case,is made clear in paragraphs-76 and 77 of the said judgment, byholding Sections 82 and 83 of Maharashtra Universities Act, 1994, tobe inconsistent with the provisions of NCTE Act, 1993. Thus, theState of Maharashtra case entirely related to the insistence by theUniversity, of permission from the State Government to start aTeacher Training Institute, by taking umbrage under Sections 82 and83 of the Maharashtra Universities Act, 1994. In that case, theSupreme Court was not concerned with a tussle between NCTE andUniversity in the implementation of academic standards or any othermatter connected with the improvement of norms and standards in thefield of teacher education. As a matter of fact, if there is anyprovision in the University Act, the application of which would aidthe process of achieving the twin objects for which NCTE was created,those provisions cannot be looked at, as being repugnant but shouldbe looked at as being supplemental and supportive to the NCTE Act.For example, if the Univesity prescribes certain number of term daysfor a particular curriculum, it cannot be said that the absence ofsuch an prescription under the NCTE Act, would make it repugnant tothe NCTE Act.

28. Once the NCTE Act has made it clear that its object isto achieve planned and coordinated development of teacher educationsystem and to regulate and maintain the norms and standards, theprescription of a specified number of term days would only aid NCTEin achieving those norms. To hold otherwise, would tantamount toridiculing the very object of the NCTE Act.

29. In so far as the judgment of the Supreme Court in Unionof India vs. Shah Goverdhan L.Kabra Teachers' College ((2002) 8 SCC228) is concerned, the same arose under different circumstances. Inthe said case, the validity of Section 17(4) of the NCTE Act, was putto test on the touchstone of the independence of the State Governmentto prescribe its own standards for employment to the State Services.It was argued in the said case that Section 17(4) of the NCTE Actamounted to a law dealing with employment, infringing upon the righthttps://hcservices.ecourts.gov.in/hcservices/of the State Government. In paragraph-8 of the said judgment, theSupreme Court made it clear that any interpretation to any Act,should actually subserve the object for which the Act was enacted, in the following words:-"Both Entries 65 and 66 of List I empowerthe Central Legislature to secure the standardsof research and the standards of highereducation, the object behind them being that thesame standards are not lowered at the hands ofthe particular State or States to the detrimentof the national progress and the power of theState Legislature must be so exercised as not todirectly encroach upon power of the Union underEntry 66".

30. If we do not loose track of the objects for which NCTEAct was enacted, we would find that any provision contained in theUniversity Act that would improve the norms and standards of teachereducation, cannot be held to be repugnant to the NCTE Act. If byapplying the doctrine of pith and substance, we find that aparticular provision in the University Act is intended for improvingthe quality of teacher education, it should be taken as subservientto the cause sought to be achieved by NCTE and not subversive of theobjects sought to be achieved.

31. Applying the above test, I find that the insistence byUniversity for a particular number of term days, is only to improvethe quality of education and hence it cannot be taken to be anencroachment into a field occupied by NCTE Act, 1993.

32. Coming to the Division Bench judgment in VinayakaMission's College of Nursing and Para-Medical Sciences vs. The T.N.Nurses and Midwives Council (2006 (4) CTC 162), it is seen that thesaid case arose out of the blind refusal of the PondicherryUniversity to grant affiliation on the ground that the cut off datefor submission of application prescribed under Clause 5(a) of theAcademic Ordinance was over. The University did not apply its mind tothe number of term days available, at that time of the year.Therefore, the Division Bench was not prepared to accept a cut offdate, not supported by any valid reason. Hence, the said judgment hasto be understood only in the context of the reason stated in theorder impugned in the said case.

33. Looking from a more practical angle, I am unable tofind an answer to a hypothetical question viz., as to what wouldhappen if the NCTE grants recognition for a particular year, on aparticular date, which falls within a month or so of the date ofcommencement of examinations by the University for that particularyear. Can it be said even under that situation that the University isbound to give affiliation for the same academic year, despite thefact that only 30 days or so are left behind for the commencement ofthe examination schedule itself. NCTE itself does not appear to haveany scientific basis for determining the academic year in respect ofwhich recognition is to be granted. I have come across several ordershttps://hcservices.ecourts.gov.in/hcservices/of NCTE, granted even in February and March of a particular year, forthe academic year which had already commenced 6 to 8 months earlier.Therefore, to say that the University should throw to the wind, the requirement of a prescribed number of term days, would tantamount toconverting Teacher Education into a Correspondence Education or OpenUniversity System of Education.

34. An identical situation as in the present case arose inRahul Dhaka Vikas Society vs. Guru Gobind Singh IndraprasthaUniversity and Others (AIR 2001 Delhi 154). In the said case, thepetitioner therein was granted recognition by the NCTE. Though GuruGobind Singh University provisionally granted affiliation for 1999-2000, the University refused to continue the affiliation for 2000-2001. The refusal of the University to extend the affiliation waschallenged on the ground that once NCTE has granted recognition,University cannot refuse affiliation. The argument in the said casewas also advanced on the basis of the language used in Section 14(6)of the NCTE Act, 1993, with particular emphasis on the word "shall"appearing in Section 14(6). In paragraphs-11 and 12 of its judgment,the Division Bench of the Delhi High Court looked at the consequencesof such an argument in the following words:- "11. It is, keeping in view the provisionsof the Indraprastha Vishwavidyalaya Act, 1998that provisions of Section 16 of the NCTE Actare to be given an interpretation. If theinterpretation as suggested by Institute isgiven, following would be the consequences:a) Grant of recognition wouldmean grant of automatic affiliationwith any University.b) Depriving the University ofits power to give affiliation orrefuse affiliation.c) Possessed with the order ofrecognition and institution can go toany University for affiliation. Inother words, it would be the soleprerogative of the institution todecide the University with which itwants to be affiliated and suchUniversity has no choice but to grantaffiliation.d) University will have to grantaffiliation even if the particularinstitution does not conform to thestandards or meets the requirements ofthe Act, Statutes, Ordinances andRegulations of that University.12. Naturally, such an interpretation assuggested by the Institute which leads to theaforesaid appalling and blighting consequencesand may have effect of destroying the veryautonomy of an University and may give licencehttps://hcservices.ecourts.gov.in/hcservices/to an institution to violate the provisions ofthe Acts, Statutes, Ordinance etc. of theUniversity with impunity, cannot be accepted.

Merely because the NCTE Act is a CentralStatute, does not mean that it has to beinterpreted in a manner which destroys the veryfabric and edifice of the University. Thereforeneed is to interpret the provisions of the twoActs, one Central and other State, harmoniouslyso that both are able to survive in theirrespective fields and also able to achieve theirrespective objectives. It is only when theprovisions of the State Act are repugnant tothat of Central Act that the provisions of StateAct have to give way to the provisions ofCentral Act. Article 254 of the Constitution ofIndia deals with the situation where there isinconsistence between laws made by theParliament and laws made by the legislatures ofStates interpreting the principle of repugnancycontained in this Article, following principlescan be culled out from various judgments:-

1. The State law does notbecome void and soon as the UnionParliament legislates with respectto the same subject. There isnothing to prevent the Statelegislature to legislate withrespect to a Concurrent subjectmerely because there is a Union lawrelating to the same subject.Article 254(2) is attracted only ifthe State law is 'repugnant' to theUnion Act, which means that the twocannot stand together. The doctrineof 'occupied field' has noapplication in the interpretation ofthe present Article.2. There is no question ofapplying Article 254, unless theState law is, in its 'pith andsubstance' a law relating to theConcurrent List. If it is covered byan Entry in the State List, but onlytouchestheConcurrentListincidentally,thereisnoapplication of Article 254.3. The onus of showing the'repugnancy' and the extent thereofis on the party who attacks thevalidity of the State law."

35. In paragraph-13 of the same judgment, the DivisionBench of the Delhi High Court also made it clear that if anhttps://hcservices.ecourts.gov.in/hcservices/institution is refused recognition by NCTE, the University has nodiscretion except to refuse affiliation. But the reverse was not trueviz., that there would not be an automatic affiliation if there was recognition by the NCTE.

36. Dealing with the word "shall" appearing in Section 14(6) of the NCTE Act, 1993, the Division Bench of the Delhi High Courtheld in paragraph-14 as follows:- "No doubt once the word 'shall' is used in aprovision, it raises a presumption that theparticular provision is mandatory. However, thisprima facie inference may be rebutted by otherconsiderations such as object and scope of theenactment and the consequence flowing from suchconstruction. Keeping in view this considerationwe are of the opinion that the word 'shall'occurring in sub-section (6) of Section 14 shouldbe construed as merely directory and not mandatoryas the context and the intention of legislaturedemands this construction. Instances are notlackingwhereCourtshavegivensuchinterpretation to the word 'shall' appearing inthe provisions of a Statute by carefully attendingto the whole scope of the Statute."

37. In conclusion, the Division Bench of the Delhi HighCourt upheld the role of the University in the following words inparagraph-15 of its judgment as follows:- "Therefore normally affiliation should notbe refused on the grounds which are covered bySection 14(3) of NCTE Act and Council hasalready satisfied itself that the Institutemeets these requirements. However, this wouldnot be an absolute rule and the University shallstill have the right to satisfy itself about thefulfillment of conditions for affiliation by theInstitute in accordance with its Act, Statutesetc. But if the affiliation is refused on any ofthese grounds, it will be for the University tojustify its decision that notwithstanding the'recognition by the Council, the institutionlacked any of the aforesaid facilities and theCouncil had not acted properly in granting therecognition.Moreover,apartfromtheconsiderations mentioned in Section 14(3) of theNCTE Act, there may be other validconsiderations which may compel the Universityto still refuse affiliation. After all it is theUniversity which confers the degree. It is thecredibility, reputation or the goodwill of theUniversity which is at stake."

https://hcservices.ecourts.gov.in/hcservices/The above dicta, in my considered view, applies in all force to thecase on hand.

38. In Bharathidasan University vs. Dhanalakshmi Srinivasan(2005 W.L.R. 368) also it was held that the Central Act covers theentire field of teacher education. In paragraph-24 of the saidjudgment, the Division Bench of this Court held that the Universitybeing one of the agencies under NCTE Act, is obligated to grantaffiliation on receipt of the order of recognition in terms ofSection 14(4) and Section 14(6) of the NCTE Act. Therefore it wascontended that as per the decision of the Division Bench of thisCourt, affiliation should be automatically granted, once NCTE grantsrecognition.

39. However, it is seen from paragraph-23 of the samejudgment, that the emphasis made by the Division Bench was only withregard to the No Objection Certificate insisted upon by theUniversity to be obtained from the Government. After quoting apassage from the judgment of the Supreme Court in St. John's TeacherTraining Institute's case, the Division Bench held in paragraph-23 asfollows:- "It is clear from the above decision thateven if NOC is not granted by the StateGovernment or Union Territory concerned and thesame is refused, it is for the RegionalCommittee to take a decision on the applicationfor recognition irrespective of the decision ofthe State Government or Union Territory. Theabove decision also makes it clear that theRegional Committee is empowered to consider theclaim for recognition even in a case where theState Government has refused to NOC. In view ofthe said position of law as stated supra, ifthis Regional Committee is satisfied with regardto the fulfillment of requirements for grant ofrecognition, it is the duty of the examiningbody, namely, Universities to grant affiliationwithout insisting upon the institutions toproduce the prior permission of the StateGovernment. Inasmuch as the Universities passedorders requiring the education institutions toget prior permission of the State Governmentbased on the resolution of their Syndicate inaccordance with their respective University Actand Statutes and Tamil Nadu Private Colleges(Regulations) Act is illegal and contrary to thelaw laid down by the Supreme Court of India."

40. Thus, the judgment of the Division Bench inBharathidasan University's case has to be understood only in thecontext of the condition imposed by the University for obtaining NoObjection Certificate from the State Government. To be precise thegrant of No Objection Certificate by the State Government, was nothttps://hcservices.ecourts.gov.in/hcservices/one of the functions of the University intended to achieve excellencein the particular field of education. The act of obtaining NOC fromState Government had nothing to do with the functions to be performed by the University, with regard to the grant of affiliation and hencethe provision relating to the requirement to obtain No ObjectionCertificate alone was held to be repugnant to the NCTE Act andnothing more can be read into the judgment of the Division Bench, toscale down the role of the University in so far as the maintenance ofnorms and standards in institutions are concerned.

41. The matter relating to affiliation and approval ofcolleges is dealt with, under Chapter XXIV of the Statutes of theBharathiyar University. Clause 31 of Chapter XXIV of the Statutes ofthe University reads as follows:- “31.Affiliationcannotbegrantedretrospectively.-----Affiliation or approval shallin no case be granted with retrospective effect.Attendance at courses of instruction provided incolleges or in subjects before the grant ofaffiliation or approval shall not qualify for thegrant of certificates of attendance; and suchattendance shall not entitle any candidate toexemption from the production of certificates ofattendance."

42. That a college does not have the right to admitstudents even before the grant of affiliation, has been clearly laiddown by the Division Bench of this Court in The University of Madrasvs. Loordhu Ammal Educational Trust (2005 W.L.R. 395). In para-18 ofthe said judgment, the Division Bench held as follows:- "18. We are of the opinion that any college orinstitution admitting students for a degree in aUniversity even before the University accords itaffiliation is really committing fraud on thosestudents and is cheating those students who aregiven admission, because those students can be leftin the lurch if ultimately affiliation is notgranted".

43. In Sree Arumugam Teacher Training College vs.Thiruvalluvar University, W.P.Nos.8685, 8687, 8869 and 8186 of 2006dated 4.4.2006, Mr. Justice D.MURUGESAN, considered the effect ofClause 46 Chapter XXVI of the Statutes of the Madras University andheld that there cannot be any retrospective affiliation and that theattendance before affiliation would not be taken into consideration.In para-12 of the said judgment, the learned Judge referred to theprovisions of Section 14 of the National Council for TeacherEducation Act and held as follows:- "12. The power to grant recognition to startTeacher Training Course including the degree levelshall vest only with the National Council forhttps://hcservices.ecourts.gov.in/hcservices/Teacher Education (in short NCTE). The NationalCouncil for Teacher Education Regulations and theconditions on which the recognition is granted in

terms of Section 14(1) of the National Council forTeacher Education Act are binding on theinstitutes availing such recognition. ConditionNo.3(a) of the conditions of recognitioncontemplates that the institution shall ensurethat eight exclusive faculty members duly approvedby the affiliating University are in a positionfor an intake of 100 students and a report to thiseffect shall be sent to the Southern RegionalCommittee immediately and in any case beforecommencement of admissions for the course. A plainreading of the above condition shows that beforeadmission to the course is commenced, theinstitution should get the approval of theaffiliating University as to the faculty members.The fact of approval shall be communicated to theNCTE by the colleges by way of reports. Unlessthese two conditions are complied, the institutioncannot admit the students. Condition No.4 furthercontemplates that the recognition is subject tothe fulfillment of all such other requirements asmay be prescribed by other regulatory bodies likethe State Government, etc. So far as the grant ofaffiliationisconcerned,therespondentUniversity is alone empowered. The grant ofaffiliation entitles the colleges not only toadmit the students but also enables the studentsso admitted to write the examination subject tothe training in the prescribed syllabi andfulfilling the attendance norms. If both theCondition Nos.3(a) and 4 are read together, it isobvious that even as per the conditions ofrecognition, no student can be admitted before theapproval of the faculty members and a report tothat effect is sent to the NCTE, and further nostudent would be entitled to write the examinationunless he/she earns the minimum attendance as perthe norms. As per Condition No.4, grant ofaffiliation is also one of the requirements andwithout which a mere attendance in the classwithout there being a conferment of degree wouldbe of no use."

44. Again in paragraph-14 of the judgment, the learnedJudge held as follows:- "A mere grant of recognition or NOC would beof no use as students cannot be imparted trainingand consequently, obtain degree in the absence ofaffiliation. A University which is obligated to itsstatutes shall ensure as to whether the studentshttps://hcservices.ecourts.gov.in/hcservices/had put in minimum attendance and had undergone thecourse in the prescribed syllabi and had beenimparted training by qualified teachers before allowing such students to write the examination. Itwould be only in conformity with the regulations ofthe University if the attendance secured bystudents, after the affiliation was granted istaken into consideration to arrive the minimumrequired number of days to writ the examination.Any other conclusion shall not be in tune to theobject requiring affiliation from the Universityfor registering the candidates to write theexamination."

45. Regulation 8 of NCTE Regulations, 2002 prescribes theNorms and Standards for various Teacher Education Courses, as perAppendices 3 to 14. Appendix-7 therein relates to the Norms andStandards for Secondary Teacher Education Programme. Clause 2(a) and4(a) of the Norms and Standards for Secondary Teacher EducationProgramme read as follows:-

"2. Duration and Intake.-- (a) The B.Ed.programme shall be of a duration of at least oneacademic year.""4. Curriculum Transaction and Requirement ofTeaching Staff.--(a) There shall be at least 150teaching days in a year exclusive of period ofadmission, examination, etc. Besides, every teachertrainee shall be required to undergo internship-in-teaching (including practice teaching and skilldevelopment) for at least 30 days in nearbysecondary/senior secondary schools."

46. There can be no dispute that the NCTE itself isconcerned with a particular number of term days, which is referred toin Appendix-7 Clause-4 under Regulation-8 of NCTE Regulations 2002 as"at least 150 teaching days in a year". This prescription is inaddition to an internship in teaching for at least 30 days.Therefore, it is clear that NCTE also wants the candidates admittedto teacher training institutions to undergo the curriculum for aprescribed number of days. What is referred to in NCTE Regulations as"teaching days" is referred to as "term days" by the University.Hence the concern expressed by the University under the impugnedorder that the students of the petitioner-institute may not be ableto complete the term days, is perfectly in tune with the requirementunder NCTE Regulations 2002.

47. By referring to the clauses contained in the format ofundertaking to be executed in Appendix-1D Form by the applicant andAppendix-2C Form by the University, learned counsel for thepetitioner contended that the petitioner is entitled to admitstudents immediately after recognition and the same need not bepostponed beyond the date of recognition. In other words, thecontention of the learned counsel for the petitioner is that thehttps://hcservices.ecourts.gov.in/hcservices/prescription under the University Statutes that attendance would becounted only from the date of affiliation, would militate against theclauses contained in the undertakings executed by the institute and the University.

48. I am unable to countenance the said contention of thelearned counsel for the petitioner. Clause-4 of the undertaking inAppendix-1D Form reads as follows:-"(4) That admission to the classes will bemade only after recognition is granted by theconcerned Regional Committee of the NCTE."

Similarly, Clause-4 of the undertaking in Appendix-2C Form reads asfollows:- "(4) That admission to the Course will bemade only after recognition is granted by theconcerned Regional Committee of the NCTE."

49. The aforesaid Clauses are only enabling provisionsindicating the date on which the institute becomes eligible. But thateligibility is also subject to other conditions. This is why theorder of recognition itself contains a condition in paragraph-4 whichreads as follows:- "Further, recognition is subject tofulfillment of all such other requirements as maybe prescribed by other Regulatory Bodies like theAffiliating University, U.G.G., State Governmentetc."

Thus, the recognition granted by the NCTE is made specificallysubject to the fulfillment of all such other requirements as may beprescribed by other Regulatory Bodies. Therefore, the enablingprovision contained in Clause-4 of the undertakings in Appendix-1Dand 2C Forms will have to be read in the context of Condition No.4 inthe recognition order itself.

50. Interestingly, the argument that the petitioner gets aright to admit students immediately after the grant of the order ofrecognition, does not appear to be correct even from the otherClauses contained in the undertaking itself. For example, Clause-2 ofthe undertaking in Appendix-1D Form to be executed by the institutereads as follows:- "(2) That admission of students satisfying theeligibility conditions will be made either on thebasis of marks obtained in the qualifyingexamination or in the entrance examination conductedby the State Government/University as per itspolicy."

This undertaking clearly indicates that after an order of recognitionis granted by NCTE, admission of students can be made only on thebasis of merit determined on the basis of the qualifying examinationshttps://hcservices.ecourts.gov.in/hcservices/or in an entrance examination conducted by the State Government orUniversity. Suppose, there is a system of conducting a commonentrance examination, how is it possible for the institute to admit students immediately after recognition, on the basis of Clause-4 ofthe undertaking in Appendix-1D Form, ignoring the aforesaid Clause-2in the same Appendix 1-D undertaking.

51. The question in the previous paragraph is not raisedmerely on hypothetical lines. As we have seen above, the NCTERegulations 2002 prescribes the Norms and Standards for variousTeacher Education Programmes under Regulation 8 r/w Appendix 3 to 14.Appendix-7 relates to B.Ed., Courses. Para-3(b) of the Appendix-7Norms and Standards also reiterates that the University or StateGovernment is entitled to hold an entrance examination for admissionto B.Ed., degree course and admission shall be made on the basis ofthe marks obtained in the said examination. The said para-3(b) readsas follows:- "Admission should be made either on the basisof marks obtained in the qualifying examination orin the entrance examination conducted by theUniversity/State Government as per the policy ofthe State Government/University to which theinstitution is affiliated."

Therefore the right to admit students is not meant to be theimmediate consequence of an order of recognition, but can beinterrupted by a process of selection prescribed by the University.If this is so, it is unthinkable that even before affiliation, astudent can be admitted.

52. As a matter of fact, the reference made to Appendix-2Cundertaking has no relevance at all, since the said undertaking is tobe executed by a University under Regulation No.3(ii) of the NCTERegulations 2002, where the University makes an application forrecognition. Even then, I have considered the effect of para-4 of theundertaking and found that it does not confer a right to admitstudents even before the grant of affiliation, merely because of thegrant of recognition.

53. It is interesting to note that Appendix-7 Norms andStandards prescribed for B.Ed., Course under Regulation 8 of NCTERegulations 2002 prescribes the qualifications of teaching staffunder para-5(a) and (b). In para-5(d), the NCTE Regulations give aleverage to the other Regulatory Bodies, even to prescribe such otherqualifications apart from the qualifications prescribed in para-5(a)and (b). Thus, it is clear that the petitioner has a right to admitstudents only after an order of recognition is granted by NCTEfollowed by an order of affiliation by the concerned University. Theabsence of any one of the two would vitiate the admission of astudent.

54. Learned counsel for the petitioner advanced an argumentthat the Vice Chancellor of the Bharathiyar University has the powerhttps://hcservices.ecourts.gov.in/hcservices/to exempt students of unaffiliated collages also to take theexaminations. It is true that Section 13(8) of the BharathiyarUniversity Act, 1981, confers powers upon the Vice Chancellor to exercise such other powers and perform such other duties as may beprescribed by Statutes. But Chapter VI of the Statutes of theUniversity Act, does not appear to contain any provision conferringpowers upon the Vice Chancellor to grant exemption. However, in sofar as admission of a person to University Course is concerned, theSyndicate of the University has the power to grant exemption foradmission of a person to a Course of study in the University, underSection 38(2) of the Act. But, the said power of exemption is to beexercised only on the recommendation of the Standing Committee onAcademic Affairs. Similarly, the Syndicate has the power to grantexemption to a person from the requirement of enrollment toaffiliated or approved college, under Section 39 of the Act. This isalso subject to the recommendation of the Standing Committee onAcademic Affairs. Section 39 Reads as follows:- "39. Admission to University examination –No candidate shall be admitted to any Universityexamination unless he is enrolled as a member ofa University college or laboratory or of anaffiliated or approved college and has satisfiedthe requirements as to the attendance requiredunder the regulations for the same or unless heis exempted from such requirements of enrollmentor attendance or both by an order of theSyndicate passed on the recommendation of theStanding Committee on Academic Affairs made underthe regulations prescribed. Exemptions grantedunder this Section shall be subject to suchcondition, as the Syndicate may think fit."

55. In order to highlight the power of the Vice Chancelloror the Syndicate to grant exemption, learned counsel for thepetitioner relied upon the judgment of the Supreme Court in Bhartiya Homoeopathy College, Bharatpur vs.Students' Council of Homoeopathy Medical College, Jaipur and Others((1998) 2 SCC 449).

56. There is no difficulty in accepting the propositionthat any order of exemption issued by the Vice Chancellor or theSyndicate in exercise of the power conferred by the Statute or theAct, cannot be assailed, if the power to grant exemption had beenexercised in a proper manner. But in this case, the petitioner hasneither sought for exemption nor was given exemption under Section 38or Section 39 of the University Act. Therefore, that question doesnot arise for consideration.

57. In fine, I summarise the conclusions as follows:- (a) Any requirement or prescription in theUniversity Act or Statute, which has the effect ofimproving the Norms and Standards and which alsohttps://hcservices.ecourts.gov.in/hcservices/seeks to achieve the objects of NCTE Act, 1993,cannot be taken to be repugnant to NCTE Act, 1993.(b) The prescription by the respondent- University that the institute should be able towork for the required number of term days afterthe grant of affiliation, is perfectly in tunewith the object sought to be achieved by the NCTEAct, 1993 and it is intended to attain excellencein Teacher Education. Hence, it is not repugnantto the provisions of NCTE Act, 1993.

58. For the above reasons, the writ petition fails and itis dismissed. However, it is open to the petitioner to approach theVice Chancellor or the Syndicate of the University for the grant ofexemption and if the petitioner chooses to do so, the AppropriateAuthority may consider the same in accordance with law. No costs.Consequently, connected miscellaneous petitions are also dismissed.

SvnSd/Asst.Registrar/true copy/

Sub Asst.Registrar

ToThe Registrar,Bharathiyar University,Coimbatore-641 046ONE CC TO MR.V. AYYADURAI, ADVOCATE SR 64541ONE CC TO MR.M. SEKAR, ADVOCATE SR 64570ONE CC TO G.P, SR 64987

Orderin WP 34923/2006

VC(CO)BP/22.1222.12.2006