Holding

The power to grant recognition and permission for teacher‑education institutions rests exclusively with NCTE under the 1993 Act, and a State’s policy refusal to issue an NOC is ultra vires and cannot override NCTE’s decision.

Summary

The petitioners, a public trust seeking to start a B.Ed. college, obtained recognition from the National Council for Teacher Education (NCTE) under the National Council for Teacher Education Act, 1993, but the Maharashtra Government refused to issue a No‑Objection Certificate (NOC) based on a policy decision not to grant any new B.Ed. colleges for the 2005‑06 academic year. The State challenged NCTE's permission, arguing that the policy decision was lawful and that the State could withhold the NOC. The Supreme Court held that teacher‑education is a field exclusively covered by Entry 66 of List I of the Constitution, making the NCTE the final authority, and that the State cannot refuse permission on policy grounds or encroach upon the central legislation. Consequently, the Court affirmed the High Court’s order allowing the colleges to proceed, but limited the effect of NCTE’s permission to the next academic year (2006‑07). The appeals filed by the State were dismissed.

Issues considered

The constitutional competence of the State to refuse a No‑Objection Certificate for a B.Ed. college under the National Council for Teacher Education Act, 1993.
Whether the final authority to grant recognition and permission to start teacher‑education courses lies with NCTE notwithstanding the absence of a State NOC.
The applicability of Sections 82 and 83 of the Maharashtra Universities Act, 1994 in the context of NCTE‑granted recognition.
The validity of the State’s policy decision under Article 19(1)(g) and Article 21A of the Constitution.

Legislation cited

Constitution of Indias. Article 19(1)(g), s. Article 19(6), s. Article 21A, s. Entry 66 of List I, Schedule VII
Maharashtra Universities Act, 1994s. 82, s. 83
National Council for Teacher Education Act, 1993s. 14, s. 15, s. 6

Subjects

teacher educationNCTENo Objection Certificatestate policyconstitutional competenceEntry 66 List IArticle 19Article 21Auniversity affiliationrepugnancycentral vs state legislation

Judgment

A STATE OF MAHARASHTRA
v.
-
SANT DNY ANESHWAR SHIKSHAN SHASTRA
MAHA VIDY ALAYA AND ORS.

MARCH 31, 2006
B
[Y.K. SABHARWAL, CJ., C.K. THAKKER AND
P.K. BALASUBRAMANY AN, JJ.]

•
National Council for Teacher Education Act, 1993;
c
Section 14-lnstitution intending to offer a course or training in teacher
education-recognition, grant of-State Government taking a policy decision
not to grant 'No objection certificate' to any such intending institution--·
Held. the subject of planned and coordinated development of the teacher-
D education system throughout the country, the regulation and proper
maintenance of norms and standards in the teacher-education system and
matters connected therewith , fullv covered by Entry 66 of List I of Schedule
VII-not .open to the State legislature to encroach upon the said field as
Parliament alone could have exercised the power by making appropriate
law and, thus not open to State Government to refuse permission relying on
E a State Act or on 'policy consideration-Entry 66 of List I of Schedule VII
of the Constitution of India.

Constitution of India 1950;

Article 19(1) Clause (g)-Right to practise any profession, or to carry
F on any occupation, trade or business subject to reasonable restrictions under
Article 19(6)-Applications made by colleges to NCTE under 1993 Act and
after complying with the provisions of the Act-Permission granted by NCTE-
State Government ciling a policy decision refi1sed to grant 'No obiection
certificate'-Held, the State thereafter could not have interfered with the said
G decision.

Article 21 A--Held, would cover primary as well as secondary education.

Maharashatra University Act 1994;

H 638
STATE OF MAHARASHTRA" SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA 63 9

Sections 82 and 83-applicability-grant of affiliation to an A
institution-Held, once recognition has been granted by NCTE under Section
14(6) of the Act, every University ('examining body') is obliged to and
sections 82 and 83 of the University Act do not apply to such cases-Section
14(6) of the National Council for Teacher Education Act, 1993.

The petitioner, a public trust, desired to impart education for B.ED. course. B
To meet the requirement of infrastructure, library, staff etc., it spent more than
rupees one crore. The petitioner then made an application to SNDT Women's
University, Mumbai on October 30, 2004 by paying the requisite affiliation fees.
A copy of the said application was forwarded to the Principal Secretary, Higher
and Technical Education, Mantralaya, Mumbai. An application was also made by C
the petitioner to NCTE, Western Region Office, Bhopal on December 30, 2003
in the prescribed format for grant of permission to start B.ED. college for women
in accordance with the provisions of the National Council for Teacher Eduction
Act, 1993 (hereinafter referred to as 'the Act') and the National Council for
Teacher Education (Norms & Conditions for recognition of Bachelor ofElementary
Education) Regulations, 1995 (hereinafter referred to as 'the Regulations'). The D
Expert Committee of NCTE visited the petitioner's campus on June 6, 2005 and
verified the adequacy of infrastructure, staff and other norms. The report was
submitted by the Committee to NCTE which approved and granted recognition
for B.Ed. College to be opened by the petitioner from academic year 2005-06 with
an intake capacity of 100 students. After receipt of the said letter, the petitioner E
applied to the Government of Maharashtra on July 4,2005 for grant of permission
to start the college and\or inclusion of the name of the college in the Central
Admission Process for the year 2005-06. The State Government neither acted
on the said letter nor even replied. Under the Maharashtra Universities Act, 1994
(hereinafter referred to as 'the University Act') only after permission from the
Government, B.Ed. College can be opened. Since the admission process was to be F
delayed and the petitioner had undertaken every exercise by getting necessary
permission from NCTE and had invested huge amount of more than one crore on
development, infrastructure and appointment of staff etc., it was constrained to
approach the High Court by filing a petition for appropriate relief. An affidavit
was filed by the State authorities asserting that the petitioner had to obtain NOC G
from the State Government The State Government had an important role to play
in the process of grant of permission by NCTE. It was stated that the State
Government had been assigned an important task of development and improvement
of teacher's education and thus it was vitally interested in education and specially
in professional courses in the State. It was only the State Government which could
correctly assess and know the extent of requrirment of trained manpower and H
640 SCPREME COURT REPORTS [2006] 3 S.C.R.

A supply of trained teachers keeping in view the requirements, change of occupation
and demand of such teachers. The input from the State Government through NOC
was thus vital for enabling NCTE to exercise its powers and discharge its
functions properly and without involvement of the State Government and
availability of necessary input by the State Government, NCTE could not grant
B permission. Being of the view that there were sufficient B.Ed. colleges and intake
capacity taking into account the need for teachers. A conscious decision was,
therefore, taken by the Cabinet Sub-Committee on December 28, 2004 not to
grant approval or issue NOC for starting any new institution or to increase intake
capacity of existing institutions imparting B.Ed. course for the year 2005-06. In
spite of the above decision, NCTE forwarded the recommendation for grant of
C permission in favour of certain institutions. But, as policy decision had been taken
by the State Government, the proposal of the petitioner institution for grant of
NOC was not forwarded to NCTE. The State also made a complainy in the affidavit
that NCET had not clarified in what circumstances it has issued permissions to
the petitioner and other institutions without NOC from the State Government It
was, therefore, prayed by the respondent State that its decision was a policy decision
D which was in consonance with law and the petition was liable to be dismissed. The
State had also challenged, by liling Writ Petition No. 6172 of 2005, the action of
NCTE of granting permission to open new B.Ed. college ignoring the policy
decision of the State dated December 28, 2004 praying that the action of NCTE
was illegal and unlawful and was liable to be set aside. The NCET also filed a
E counter before the High Court Relying on various provisions of the Act, NCTE
stated that necessary sanction had been granted any i'ICTE and the said decision
was legal, valid and in consonance with law. It was stated that since the final
authority for granting such permission was only NCTE under the Act, SNOT
University as well as the State Government ought to have respected the order
passed by the NCTE by taking consequential actions and that the decision of the
F State Government was not binding upon NCTE and accordingly NCTE had decided
to grant permission to open 16 new B. Ed. colleges.

The High Court, therefore, was called upon to consider the role played by
the State Government in the process of consideration of application by the
G institutions seeking recommendation of opening B.Ed. colleges by NCTE in the
light of the provisions of the Act in juxtaposition to the extent of trained manpower
required by the State and to take policy decision on the basis of output of teachers
by such colleges. The Court was also called upon to consider whether in absence
of any material being made available by the State Government to NCTE whether
the latter can process the application and take a decision contrary to the decision
H of the State Government. A question had also arisen as to whether the State --
'
ST ATE OF MAH:\ RASHTRA 1•. SANT DNY ANtSHWAR SHIKSHAN SHASTRA MAHA. VIDYALA YA 64 J

Government can refuse permission to an institution which had been granted A
permission to start B.Ed. college by NCTE under the Act and whether policy
decision of the State Government not to grant NOC would bind NCTE in the light
of the provisions of the Act The High Court allowed the writ petition filed by the
Institutions and dismissed the writ petition of the State Government Hence, these
appeals by the state. B
The appellant\state contended that the policy decision taken by the State
Government was in consonance with law and could not have been ignored by NCTE.
It was also submitted that it was within the power and authority of the State to
take into account relevant and germane considerations. On a serious
consideration, the Cabinet Sub-Committee took a conscious decision that for the C
year 2005-06, no NOC would be granted to open new B.Ed. colleges. It was also
submitted that the Regulations framed and Guidelines issued by NCTE under
the Act empowered the State Government to consider certain matters. The legality
thereof came to be challenged before this Court in St John Teachers Training
Institute and they were held valid. When in exercise of the power conferred by D
NCTE on the State Government, an action was taken and decision has been arrived
at, it is neither open to NCTE nor to a college to question the legality thereof,
particularly when the State has taken into consideration planned and combined
development of teacher education in the State. It was also contended that the
provisions of the University Act and in particular Sections 82 and 83 would apply
when the State grants NOC and NCTE permits new B.Ed. college to be opened or E
allows increase in intake capacity and the university will act in accordance with
the decision of the State and NCTE. In the absence of grant of NOC, a college
cannot insist on implementation of provisions of Sections 82 and 83 of the
University Act merely on the basis that NCTE had granted permission under the
Act. It was finally submitted that even if this Court is of the view that all the F
submissions made by the State are ill-founded and the decision of the High Court
does not deserve interference, no permission may be granted to the colleges at
least for the year 2005-06 since minimum requirement is presence of 180 days
which would be impossible to comply with since B.Ed. Examination is scheduled
to be held in March - April 2006. It was stated that the course is of one year only G
after graduation and as such there is no supplementary additional examination
for B.Ed.

It was contended by the NCTE that it is the final authority and has primary
voice in establishing technical educational institutions. The Act has been enacted
by Parliament in exercise of power under Entry 66 of List I of Schedule VII to the H
Constitution and the State has no power in such matters. It was also submitted
642 SUPREME COURT REPORTS (20061 3 S.C.R.

A that like the State, University has also no power, authority or jurisdiction to ignore
the decision taken by NCET or refuse to take action in pursuance of permission
granted by NCTE. Sub-section (6) of Section 14 of the Act expressly requires
university to act in accordance with the decision of NCTE and State Government
cannot direct the university nor can university overlook the statutory scheme. It
B was also submitted that the policy decision of the State Government dated 28th
December, 2004 was not legal and valid. Several aspects and relevant
considerations were not kept in mind while taking the said decision. In the
circumstances, NCTE was constrained to take an action in consonance with law.
A decision was taken by NCTE to grant permission to new B.Ed. colleges which
was legal and valid. Regarding Regulations and Guidelines framed by NCTE and
c the role to be played by the State Government in such cases, it was submitted that
it is merely in the nature of supply of necessary data\ materials and is
'consultative' in character. As it may be difficult for NCTE to get necessary
information before power is exercised by NCTE one way or the other the State is
requested to furnish requisite details. That, however, does not mean that the State
D can refuse NOC after a decision has been taken by NCTE. Once the State is
consulted and it supplied and made available necessary particulars to NCTE as
required by it, the function of the State comes to an end. Thereafter it is only for
NCTE to take an appropriate decision in accordance with law.

On behalf of the various colleges it was contended that the State has no
E locus standi to challenge the decision of NCTE. The State cannot be said to be
"person aggrieved" or "aggrieved party" so as to challenge the decision ofNCT.E.
If the decision is against the college, it is only the college which has. 'standing' to
impugn the said decision. It was also submitted that under the scheme of'the
Constitution, particularly Articles 245, 246, 248 and 254 read with Schedule
F VII thereof, only Parliament has power of co-ordination and determination of
standards in institutions for higher education or research, scientific and technical
institutions. State Legislatures have no authority to enact any law in the field
covered by Entry 66 of List I of Schedule VII. Obviously, therefore, State
Government has no authority to take a policy decision in respect of the subjects
G covered by Entry 66 of List I of Schedule VII for which a specific enactment has
been made by Parliament and under the said Act authority has been granted to
NCTE to take an action. As to Regulations and Guidelines, it was submitted that
under the Act power has been conferred on NCTE. It is, therefore, only NCTE,
which can consider the question and take appropriate decision under the Act and
it is not open to NCTE to make Regulations or frame Guidelines empowering the
H State Government to undertake such exercise: The Regulations framed or
....
STATE OF MAHARASHTRA 11. SANT DNY ANESHW AR SHIKSHAN SHAS1RA MAHAVIDYALA YA 643

Guidelines made, therefore are not in consonance with the Act and there i5 A
abdication of power by NCTE in favour of State Government which is hit by the
doctrine of impermissible and excessive delegation. Regulations permitting such
excessive impermissible delegation must be declared inconsistent with the parent
Act as also ultra vires and unconstitutional. It was also submitted that so-called
policy decision of the State Government is arbitrary and unreasonabl~ and would B
be hit by Clause (g) of Article 19(1) of the Constitution which allows all citizens
to have the right to practise any profession, or to carry on any occupation, trade
or business, otherwise legal and lawful. Article 19 (6) cannot be invoked by the
State as total prohibition to open B.Ed. college can never be said to be in the
interest of general public and would not fall within "reasonable restriction"
permissible under the said provision. It is also violative of Article 21A as inserted C
by the Constitution (Eighty-sixth Amendment) Act, 2002. Over and above
constitutional inhibitions, the order dated 28th December, 2004 is arbitrary and
unreasonable inasmuch as considerations which weighed with the State
Government relating to employment of B,Ed. teachers were totally irrelevant and
extraneous. Taking education and getting employment are two different things. D
The colleges are not claiming any grant for financial aid from the State, nor do
they give any assurance or guarantee to students admitted to B.Ed. college that
the State will give them employment. It is therefore not open to the State
Government to refuse to grant NOC because the State is not able to give
employment to teachers after they get B.Ed. degree. Thus the so-called policy E
decision of the State Government not to grant NOC to B.Ed colleges is totally
irrational. It was also submitted by the respondents that they had made huge
investments and if at this stage they will be refused permission, irreparable injury
and loss would be caused to them. Finally it was submitted that the decision of
NCTE is legal, lawful and in consonance with the provisions of the Act as also
consistent with the law laid down by this Court in several judgments. Once the F
action of NCTE is found to be lawful and the decision of the State Government
bad, no prejudice should be caused to the institutions.

Dismissing the appeals the Court

HELD: 1.1. So far as co-ordination and determination of standards in G
institutions for higher education or research, scientific and technical institutions
are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule
VU to the Constitution and State has no power to encroach upon the legislative
power of Parliament It is only when the subject is covered by Entry 25 of List III
of Schedule VU to the Constitution that there is a concurrent power of Parliament H
as well as state Legislatures and appropriate Act can be by the State Legislature
644 SUPREME COURT REPORTS [2006] 3 S.C.R.

A subject to limitations and restrictions under the Constitution. The National
Council of Teacher Education Act 1993 enacted by Parliament, provides for
establishment of National Council for Teacher Education (NCTE) with a view to
achieving planned and coordinated development of the teacher-education system
throughout the country, the regulation and proper maintenance of norms and
B standards in the teacher-education system and for matters connected therewith.
It is thus clear that the field is fuUy and completely occupied by an Act of Parliament
and covered by Entry 66 of List I of Schedule VII. It is, therefore not open to the
State Legislature to encroach upon the said field. Parliament alone could have
exercised the power by making appropriate law. In the circumstances it is not
open to State Government to refuse permission relying on a State Act or on 'policy
C consideration'. [677-C-G]

St. John Teachers Training Institute v. Regional Director, NC'TE & Anr.,
[2003] 3 SCC 321 : JT (2003) 2 SC 35; State ofTamilnadu & Anr. v. Adhiyaman
Educational & Research Institute & Ors., [1995] 4 SCC 104: JT (1995) 3 SC
D 136, Jaya Gokul Educational Trust v. Commissioner & Secretary, Higher
Education Department, Thiruvananthapuram, Kera/a State & Anr., [2000] 5 SCC
231: JT (2000) 5 SC 188 and UP. Stuart v. B.K. RoyChaudhwy, AIR (1939) Cal
628: 43 Cal W.N 913, relied upon.

Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal
E Medical Educational & Charitable Trust v. State of Tamil Nadu & Ors., [ 1996]
3 SCC 15: JT (1996) 2 SC 692, referred to.

1.2. In the case of every institution seeking recognition to start a course
or training in teacher education or an existing institution seeking permission to
F start a new course or training and/or increase in intake, the final authority lies
with NCTE and NCTE cannot be deprived of its authority or power in taking an
appropriate decision under the Act irrespective of absence of No, Objection
Certificate, by the State Government/Union Territory. Absence or non-production
of NOC by the Institution, therefore, was immaterial and irrelevant so far as the
power of NCTE is concerned. Therefore, it is neither open to the State Government
G nor to a University to consider the local conditions or apply 'State policy' to refuse
such permission. [678-F-G; 684-B[

Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra &
Ors., (198614 SCC 361, distinguished.
H
2.1. It is not necessary to enter into the larger question that it was open to
STATE OF MAHARASHTRA •·. SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHA VIDY ALAYA 645
the respondents to challenge, for the first time, the constitutional validity of the A
regulations framed by NCTE, not challenged before the High Court, since they
succeeded before the High Court on other points, it was not necessary for them
to challenge the vires of Regulations but when the.State had approached this

- Court, they can support the judgment on any ground available to them including
unconstitutionality of Regulations and Guidelines. [685-A-B]

- 3.1. Under clause (g) of article 19 (1), all citizens have the right to practise
any profession or to carry on any occupation trade or business, unless they are
restrained by imposing reasonable restrictions under Article 19(6). In the instant
B

case, applications had been made by colleges to NCTE under 1993 Act and after
complying with the provisions of the Act, permission was granted by NCTE. The C.
State thereafter could not have interfered with the said decision. It is also clear
that Article 2IA would cover primary as well as secondary education and
petitioners could claim benefit of Part III of the Constitution as well.1685-E, F]

4.1. Since the order passed and action taken by NCTE cannot be termed
illegal or unlawful, it is not necessary to delve further into the contention of the D
respondents that they have spent huge amount and incurred substantial
expenditure on infrastructure, library, staff, etc. and after satisfying about the
necessary requirements oflaw, permission had been granted by NCTE, however
if the said action is set aside on the basis of the decision of the State Government,
irreparable loss will be caused to them. 1685-G; 686-AI
E
5.1. The observations of the High Court that the provisions of Sections 82
and 83 of the Maharashtra University Act are "null and void" could not be said
to be correct It appears that what the High Court.wanted to convey was that the
provisions of Sections 82 and 83 would not apply to an institution covered by 1993
Act As per the scheme of the Act, once recognition has been granted by NCTE
under Section 14(6) of the Act, every university 'examining body' is obliged to
F
grant affiliation to such institution and sections 82 and 83 of the University Act
do not apply to such cases. [686-D; 687-A]

6.1. Preliminary objection raised by the colleges that the State cannot be
said to be 'person aggrieved' and therefore, has no locus standi to challenge the G
decision of NCTE, not dealt with, since the matter was decided on merits.

7.1. It is not possible to grant the prayer of respondent-colleges to allow
them to admit students for the year 2005-06 as the academic year 2005-06 is
almost over and as such the order passed by NCTE would operate from the next
academic year, i.e. from the year 2006-07.1688-AJ H
646

-
SUPREME COURT REPORTS [2006) 3 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1859 of2006.

From the Judgment and Order of High Court of Bombay dated 28.9.2005
in W.P. No. 6172/2005.
WITH
B Civil Appeal No. 1860 of2006.

T.R. Andhyarujina, Raju Ramachandran, Jaideep Gupta, Mukul Rohtagi,
R. Venkataramani. Ravindra Keshavrao Adsure, Ms. Aprajita Singh, T. Mahipal,
Anantbhushan Kanade, Dharam Bir Raj Vohra, V.K. Rao, Ms. Madhu Sikri,
Sanjay Sen, Rana S. Biswas, M.P.S. Chauhan, Nitin Lalwani, Vishal Anand,
C Ms. Diya D. Disuza, Ms. Sarla Chandra, Shivaji M. Jadhav, Himanshu Gupta,
Brij Kishor Sah. Mansih Pitale, Chander Shekhar Ashri, Dhruv Mehta, Ms.
Jayashree Wad, Ashish Wad, Neeraj Kumar, Arvind Gupta for M/s. J.S. Wad ·
& Co., Sushi! Karanjkar, K.N. Rai, Vinay Navare. Naresh Kumar, M.D. Adkar,
Vijay Kumar, Vishwajit Singh, Nitin S. Tambwerkar, B.S. Sai, K. Rajeev, S. U.K.
D Sagar, Ms. Bina Madhavan, Ms. Pooja N. Gupta for Mis Lawyers Knit & Co.,
C.K. Thomas and Ms. Asha G. Nair for the appearing parties.

The Judgment of the Court was delivered by

C.K. THAKKER, J. Leave granted.
E The present appeals are directed against the judgment and order passed
by the High Court of judicature at Bombay, on September 28, 2005 in Writ
Petition Nos. 6172 of2005, 4769 of2005 and cognate matters. Writ Petition
No.4769 of 2005 was filed by Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya for an appropriate writ, direction or order, quashing and
F setting aside the order dated December 28, 2004 passed by the State of
Maharashtra by which the petitioner was informed that the State of Maharashtra
had taken a policy decision not to grant 'No Objection Certificate' ('NOC' for
short) to any institution for starting new B.Ed. college for the academic year
2005-06. It was also decided to communicate the said policy decision to the
Maharashtra University stating that if necessity will arise in the next year,
G applications for the institutions would be considered at that time. A decision
was also taken to bring it to the notice of National Council for Teacher
Education, Bhopal ('NCTE' for short) that in the State of Maharashtra, there
was no need for new B.Ed. trained manpower and hence NCTE should not
directly consider any application for grant of permission to start B.Ed. college.
-
H In spite of the aforesaid policy decision by the State of Maharashtra, NCTE
STATE OF MAHARASHTRA' SANT ONYANESKWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [lllAKKER J] 64 7

granted permission to the petitioner institute. The State hence challenged the A
said action by filing Writ Petition No. 6172 of 2005 contending that the
decision of NCTE ignoring the policy decision of the State Government dated
December 28, 2004 was not in consonance with law and was liable to be set
aside.

Both the petitions were heard together by a Division Bench of the B
High Court. By a common judgment, the High Court allowed the petition filed
by the institution, set aside the order passed by the State Government on
December 28, 2004 and issued direction to the State of Maharashtra as well
as Maharashtra University to take appropriate consequential actions in
accordance with law in the light of the decision taken by NCTE in favour of C
the institution permitting opening of a new B.Ed. college. Similar directions
were issued in favour of other colleges also.

To appreciate the contentions raised by the parties to the proceedings,
few relevant facts in Writ Petition No. 4 769 of 2005 may now be stated.
D
The petitioner is a public trust registered under the Bombay Public
Trusts Act, 1950 as also society registered under the Societies Registration
Act, 1860. It was the case of the petitioner that it was running a secondary

-
school at village Kondhapuri, Taluk Shirur, District Pune, having a strength
of about 150 students. The petitioner desired to impart education for B.Ed.
course. To meet with the requirement of infrastructure, library, staff etc., it E
spent more than rupees one crore. The petitioner then made an application
to SNOT Women's University, Mumbai on October 30, 2004 by paying the
requisite affiliation fees. A copy of the said application was forwarded to the
Principal Secretary, Higher and Technical Education, Mantralaya, Mumbai. An
application was also made by the petitioner to NCTE, Western Region Office, F
Bhopal on December 31, 2003 in the prescribed fonnat for grant of permission
to start B.Ed. college for women in accordance with the provisions of the
National Council for Teacher Education Act, 1993 (hereinafter referred to as
'the Act') ar.d the National Council for Teacher Education (Norn1s & Conditions
for recognition of Bachelor of Elementary Education) Regulations, 1995
(hereinafter referred to as 'the Regulations'). The petitioner also deposited the G
original Fixed Deposit Receipt (FDR) of Rs.5 lacs towards Endowment Fund.

According to the petitioner, the University processed the application of
the petitioner for affiliation and forwarded it to the State Government. It was
averred in the petition that the application was recommended for the
establishment of the proposed B.Ed. college to be opened by the petitioner. H
648 SUPRkME COURT REPORTS [2006J 3 S.C.R.

A NCTE, vide its letter dated February 24, 2005 asked the petitioner whether it
was ready for inspection as per the nonns prescribed by the NCTE. Since the
petitioner was ready for such inspection by the NCTE, the Expert Committee
of NCTE visited the petitioner's campus on June 6, 2005 and verified the
adequacy of infrastructure, staff and other norms. The report was submitted
B by the Committee to NCTE which approved and granted recognition for B.Ed.
college to be opened by the petitioner from academic year 2005-06 with an
intake capacity of I00 students. After receipt of the said letter, the petitioner
applied to the Government of Maharashtra on July 4, 2005 for grant of
pennission to start the college and/or inclusion of the name of the college in
the Central Admission Process for the year 2005-06. According to the petitioner,
C the State Government neither acted on the said letter nor even replied. Under
the Maharashtra Universities Act, 1994 (hereinafter referred to as 'the
University Act'), only after pennission from the Government, B.Ed. college
can be opened. Since the admission process was to be delayed and the
petitioner had undertaken every exercise by getting necessary pennission
from NCTE and had invested huge amount of more than one crore on
D development, infrastructure and appointment of staff etc., it was constrained
to approach the High Court by filing a petition for appropriate relief.

An affidavit was filed on behalf of SNDT Women's University stating
therein that it did not recommend the case of the petitioner to the State as
E in tenns of the Prospective Plan for 2002-07, the district-wise allocation for
Pune was only one college. It was, therefore, not possible to recommend
opening of a new B.Ed. college by the petitioner.

An affidavit was also filed by the State authorities, asserting that the
petitioner had to obtain NOC from the State Government. According to the
F respondents 3 and 4, the State Government had an important role to play in
the process of grant of pennission by NCTE and such role has been recognized
by this Court in St. John Teachers Training Institute v. Regional Director,
NCTE & Anr., [2003] 3 SCC 321 : JT (2003) 2 SC 35 . It was stated that the
State Government had been assigned an important task of development and
improvement of teacher's education and thus it was vitally interested in
G education and specially in professional courses in the State. It was only the
State Government which could correctly assess and know the extent of
requirement of trained manpower and supply of trained teachers keeping in
view the requirements, change of occupation and demand of such teachers.
The input from the State Government through NOC was thus vital for enabling
H NCTE to exercise its powers and discharge its functions properly and without
STATE OF MAHARASHTRA ,. SANT DNY ANESHWAR Sfl!KSHAN SHASTRA MAHA VIDYALA YA [THAKKER, J.) 64 9

involvement of the State Government and availability of necessary input by A
the State Government, NCTE could not grant pennission. It was then stated
that there were 216 B.Ed. colleges with an intake capacity of more than 20,000
students. Additionally, NCTE had sanctioned 40 new B.Ed. colleges on the
basis of NOC issued by the State Government prior to 2005-06. The State
Government had issued NOC to nearly 80 new institutions upto 2004-05. B
There was, thus, sufficient B.Ed. colleges and intake capacity taking into
account the need for teachers. A conscious decision was, therefore, taken by
the Cabinet Sub-Committee on December 28, 2004 not to grant approval or
issue NOC for starting any new institution or to increase intake capacity of
existing institutions imparting B.Ed. course for the year 2005-06. The said
decision of the Government was communicated to all the Universities on C
February 4, 2005 and the Universities were directed to communicate the
decision of the Government to institutions concerned. In spite of the above
decision, NCTE forwarded the recommendation for grant of penni;;sion in
favour of certain institutions. But, as policy decision had been taken by the
State Government, the proposal of the petitioner institution for grant of NOC
was not forwarded to NCTE. The State had also made a complaint in th~ D
affidavit that NCTE had not clarified in what circumstances it has issued
pennissions to the petitioner and other institutions without NOC· from the
State Government.

An additional affidavit was also filed reiterating the decision of the E
Cabinet Sub-Committee dated December 28, 2004. It was stated that it was
also decided to withdraw/cancel NOC which had been issued by the State
Government in favour of some institutions. Those institutions, therefore, filed
writ petitions and the Division Bench set aside the decision of the State
Government by granting liberty to the State to take appropriate action in
accordance with law after giving an opportunity of hearing to the petitioners. F
The State Government, thereafter, afforded hearing to the institutions, but
again it was decided to withdraw/cancel NOC in view of the policy decision
of the Government. It was, therefore, prayed by the respondent State that its
decision was a policy decision which was in consonance with law and the
petition was liable to be dismissed.
G
By filing Writ Petition No. 6172 of 2005, the State had challenged the
action of NCTE of granting permission to open new B.Ed. college ignoring
the policy decision of the State dated December 28, 2004, praying that the
action of NCTE was illegal and unlawful and was liable to be set aside.
H
650 SUPREME COURT REPORTS [2006] 3 S.C.R.

A The NCTE also filed a counter before the High Court. Relying on
various provisions of the Act, NCTE stated that necessary sanction had been
granted by NCTE and the said decision was legal, valid and in consonance
with law. It was stated that since the final authority for granting such permission
was only NCTE under the Act, SNOT University as well as the State
Government ought to have respected the order passed by the NCTE by taking
B consequential actions. It was stated that the State Government never informed
NCTE about its general policy not to issue any NOC to new B.Ed. institution

-
for academic year 2005-06 in view of output of existing B.Ed. colleges. It was
further stated that NCTE considered the question but decided not to accept
the decision of the State Government for the reason that the State while taking
C such decision, did not consider the education policy of the Government of
India under Sarv Shikshu Abhiyan which required opening of large number
of primary schools and thereafter secondary schools. It also did not take into
account preferential needs of hilly and remote areas, requirement of teachers
for Science. Mathematics and English, need of non-formal education of adults,
disabled, tribals etc. and did not consider the need of trained teachers who
D do not seek employment in other institutions but wish to use the training in
self employment such as opening of coaching classes, etc.

In an additional affidavit. NCTE stated that in the 73rd meeting, the
agenda included consideration of letter of the State of Maharashtra dated
E May 7, 2005 in which it was stated that Government had decided not to issue
any NOC for starting new B.Ed. college for the academic year 2005-06. The
meeting was held between June 3 & 5, 2005 which was attended by the State
representative but as the agenda could not be completed, the meeting
continued on June 16 and 17 when State representative was not present. After
considering the policy and views of the Government, the Committee decided
F that the decision of the State Government was not binding upon NCTE and
accordingly NCTE had decided to grant permission to open 16 new B.Ed.
colleges.

The High Court, therefore, was called upon to consider the role played
by the State Government in the process of consideration of application by the
G institutions seeking recommendation of opening B.Ed. colleges by NCTE in
the light of the provisions of the Act in juxtaposition to the extent of trained
manpower required by the State and to take policy decision on the basis of
output of teachers by such colleges. The Court was also called upon to
consider whether in the absence of any material being made available by the
H State Government to NCTE whether the latter can process the application and
STATE OF MAHARASHlllA' SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [THAKKER, J] 65 J
·take a decision contrary to the decision of the State Government. A question A
had also arisen as to whether the State Government can refuse permission to
an institution which had been granted permission to start B.Ed. college by
NCTE under the Act and whether policy decision of the State Government not
to grant NOC would bind NCTE in the light of the provisions of the Act.

The High Court considered the material provisions of the Act and the B
Regulations and the relevant decisions of this Court, particularly in State of
Tamilnadu & Anr. v. Adhiyaman Educational & Research Institute & Ors.,
[1995] 4 SCC 104: JT (1995) 3 SC 136, Jaya Gokul Educational Trust v.
Commissioner & Secretary, Higher Education Department,
Thiruvananthapuram, Kera/a State & Anr., [2000] 5 SCC 231 : JT (2000) 5 SC C
l 18 and St. John's Teacher's Training Institute, referred to above.

The High Court held that in the light of the relevant provisions of the
Act as interpreted by this Court in various decisions, the appropriate authority
to take decision regarding opening of new colleges was NCTE and neither the
State Government nor the University can act contrary to the decision of D
NCTE. According to the High Court, under the Act, the only authority which
could take a decision regarding opening of new B.Ed. college or increase in
intake capacity was NCTE and such decision cannot be ignored either by the
State authorities or by the University. So far as the function of the State
Government was concerned, the High Court observed that it was in the nature
of supply of necessary data and materials so as to enable NCTE to undertake E
the process of coming to an appropriate decision but the State had no power
to decide that it had taken a policy decision not to grant permission to open
new B.Ed. college for a particular period. Such decision was not in accordance
with the provisions of the Act nor in consonance with law laid down by this
Court. Regarding role of the University, the High Court held that it was p
incumbent on the University to take an appropriate decision and consequential
action on the basis of decision ofNCTE and the provisions of the University
Act required the University to implement such decision. It was, therefore, not
open to the University to take any action overlooking the decision of NCTE
and relying on a decision of the State Government. In the light of the above
findings the High Court allowed the petition filed by the institutions and G
dismissed the writ petition of the State Government.

The High Court, in the operative part, observed as under:

"For the reasons stated in the judgment, we direct the Director of
Higher Education, Government of Maharashtra to forthwith include H
652 SUPREME COURT REPORTS [2006] 3 S.C.R.

A the name of the petitioner institute in the list of Central Admission
process for the year 2005-2006 B.Ed. Course consequent to the
petitioner being allowed to start B.Ed. college. The University
considering Section 14(6) of the National Council for Teaching
Education Act, 1993 to grant first time affiliation to the petitioner
college to enable the College to admit students. That affiliation would
B be subject to the petitioner college fulfilling the requirements as required
by the University to grant first time affiliation in terms of the University
Act, Rules and Statute to the extent that has to be complied with. It
is made clear that those who have been admitted pursuant to the
Central Admission Process are not eligible to apply against the seats
c now available and admissions already done will not be interfered with
and the new seats will be filled in from amongst the candidates still
on the merit list, by conducting a special round of admission.

Rule made absolute to that extent in Writ Petition No. 4769 of
2005.
D
Rule discharged in Writ Petition No. 6172 of2005 subject to what
we have set out in the body of the judgment."

As already stated, NOC had been granted earlier in favour of other
colleges by the State Government on the basis of permission granted by
E NCTE. But it was subsequently withdrawn/cancelled in the light of the policy
decision dated December 28. 2004 not to permit any new B.Ed. College to be
opened. Those colleges filed petitions which also came to be allowed by the
High Court.

The State has now approached this Court by filing the p~esent appeals.
F The matters were placed for admission-hearing before this Court and on
October 5, 2005 notice was issued. Stay was also granted against the judgment
of the High Court as also the recommendation order passed by NCTE, Bhopal.
In the order dated January 6, 2006 it was observed by this Court that the
matters require elaborate submissions. The Registry was, therefore, directed
G to list them on ·a non-miscellaneous day' in the last week of January, 2006.
That is how the matters had been placed before us.

We have heard the learned counsel for the parties.

Mr. T.R. Andhyarujina, Senior Advocate, appearing for the State
H contended that the policy decision taken by the State Government was in
consonance with law and could not have been ignored by NCTE. It was also
STATE OF MAHARASlflRA '· SANTDNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALA YA [THAKKER, l] 653
submitted that it was within the power and authority of the State to take into A
account relevant and germane considerations that as against the demand of
about 7,500 teachers per year, at present more than 25,000 teachers are
available. The resultant effect is that every year there is excess of teachers
to the extent of 18,000. There are more than 250 B.Ed. colleges in the State
and if more colleges will be allowed to be opened, there will be unemployment B
of many more teachers. The said aspect was seriously considered by the
Cabinet Sub Committee and a conscious decision was taken on the basis of
demand of teachers in future and it was resolved that for the year 2005-06,
no NOC would be granted to open new B.Ed. colleges. Such a decision,
submitted Mr. Andhyarujina, by no means can be described as arbitrary,
irrational or otherwise unreasonable. It was also submitted that the Regulations C
framed and Guidelines issued by NCTE under the Act empowered the State
Government to consider certain matters. The legality thereof came to be
challenged before this Court in St. John Teachers Training Institute and they
were held valid. When in exercise of the power conferred by NCTE on the
State Government, an action was taken and decision has been arrived at, it
is neither open to NCTE nor to a college to question the legality thereof, D
particularly when the State has taken into consideration planned and combined
development of teacher education in the State. It was also urged that the State
kept in mind Prospective Plan for the period 2003-07 and was of the opinion
that there should not be imbalance or excess of teachers so as to increase
unemployment and unrest. According to Mr. Andhyarujina, the High Court E
ought to have considered the provisions of the University Act and in particular
Sections 82 and 83 thereof in their proper perspective. It is only when the
State grants NOC and NCTE permits new B.Ed. college to be opened or allows
increase in intake capacity that the above sections will apply and the university
will act in accordance with the decision of the State and NCTE. In the absence
of grant of NOC, a college cannot insist on implementation of provisions of F
Sections 82 and 83 of the University Act merely on the basis that NCTE had
granted permission under the Act. It was finally submitted that even if this
Court is of the view that all the submissions made by the State are ill-founded
and the decision of the High Court does not deserve interference, no
permission may be granted to the colleges at least for the year 2005-06 since G
minimum requirement is presence of 180 days which would be impossible to
comply with since B.Ed. Examination is scheduled to be held in March-April,
2006. It was stated that the course is of one year only after graduation and
as such there is no supplementary/additional examination for B.Ed.

Mr. Raju Ramachandran, learned counsel for NCTE supported the order H
654 SUPREME COURT REPORTS [2006) 3 S. C.R.

A passed by the High Court. He submitted that NCTE is the final authority and
has primary voice in establishing technical educational institutions. According
to him, the Act has been enacted by Parliament in exercise of power under
Entry 66 of List I of Schedule VII to the Constitution and the State has no
power in such matters. He also submitted that the point is finally concluded
B by this Court in several cases referred to above. The High Court considered
the respective contentions of the parties in the light of the law laid down by
this Court and held that it is only NCTE which has final voice and once a
decision is taken by that body, neither the State Act nor any authority of
State can interfere with such decision. The counsel also submitted that like
the State, University has also no power, authority or jurisdiction to ignore the
C decision taken by NCTE or refuse to take action in pursuance of permission
granted by NCTE. Sub-section (6) of Section 14 of the Act expressly requires
university to act in accordance with the decision ofNCTE and State Government
cannot direct the university nor university can overlook the statutory scheme.
It was also submitted that the policy decision of the State Government dated
D 28th December, 2004 was not legal and valid. Several aspects and relevant
considerations were not kept in mind while taking the said decision. In the
circumstances, NCTE was constrained to take an action in consonance with
law. The matter was discussed in various meetings of NCTE. In the final
meeting, the representative of the State was not present. A decision was
taken by NCTE to grant permission to new B.Ed. colleges which was legal and
E valid. Regarding Regulations and Guidelines framed by NCTE and the role to
be played by the State Government in such cases, it was submitted that it is
merely in the nature of supply of necessary data/materials and is 'consultative'
in character. As it may be difficult for NCTE to get necessary information

F
before power is exercised by NCTE one way or the other, the State is requested
to furnish requisite details. That, however, does not mean that the State can
refuse NOC after a decision has been taken by NCTE. Once the State is
--
consulted and it supplied and made available necessary particulars to NCTE
as required by it, the function of the State comes to an end. Thereafter it is
only for NCTE to take an appropriate decision in accordance with law. If such
decision is otherwise objectionable, the party aggrieved may challenge the
G same but so far as State is concerned, its role is over as soon as the
consultation is over. Mr. Raju, therefore, submitted that the High Court was
wholly justified in allowing the petition filed by colleges and in dismissing the
writ petition of the State.

The learned counsel for various colleges supported Mr. Raju
H Ramachandran on interpretation and application of the provisions of the Act
STATE OF MAHARASHTRA '·SANT DNY ANESHWAR SHJKSHAN SHASTRA MAHA VlDY ALAYA [THAKKER. J] 655
and final decision of the High Court. They, however, had taken other A
contentions as well. According to them, the State has no locus standi to
challenge the decision of NCTE. The State cannot be said to be "person
aggrieved" or "ag_grieved party" so as to challenge the decision of NCTE. If
the decision is against the college, it is only the college which has 'standing'
to impugn the said decision. The High Court, therefore, in the submission of
the learned counsel for colleges, ought to have dismissed the petition filed B
by the State as not maintainable without entering into the merits of the matter.
It was also submitted that under the scheme of the Constitution, particularly
Articles 245, 246, 248 and 254 read with Schedule VII thereof, only Parliament
has power of co-ordination and determination of standards in institutions for
higher education or research, scientific and technical institutions. State C
Legislatures have no authority to enact any law in the field covered by Entry
66 of List I of Schedule VII. Obviously, therefore, State Government has no
authority to take a policy decision in respect of the subjects covered by Entry
66 of List I of Schedule VII for which a specific enactment has been made by
Parliament and under the said Act authority has been granted to NCTE to take
an action. As to. Regulations and Guidelines, it was submitted that under the D
Act power has been conferred on NCTE. It is, therefore, only NCTE, which
can consider the question and take appropriate decision under the Act and
it is not open to NCTE to make Regulations or frame Guidelines empowering
the State Government to undertake such exercise. According to the counsel,
therefore, even if Regulations are framed or Guidelines made, they are not in E
consonance with the Act and there is abdication of power by NCTE in favour
of State Government which is hit by the doctrine of impermissible and excessive
delegation. Regulations permitting such excessive I impermissible delegation
must be declared inconsistent ·with the parent Act as also ultra vires and
unconstitutional. The counsel also submitted that so-called policy decision
of the State Government is arbitrary and unreasonable and would be hit by F
Clause (g) of Article 19(1) of the Constitution which allows all citizens to have
the right to practise any profession, or to carry on any occupation, trade or
business, otherwise legal and lawful. Article 19(6) cannot be invoked by the
State as total prohibition to open B. Ed. college can never be said to be in the
interest of general public and would not fall within "reasonable restriction" G
permissible under the said provision. It is also violative of Article 21 A as
inserted by the Constitution (Eighty-sixth Amendment) Act; 2002. Over and
above constitutional inhibitions, the order dated 28th December, 2004 is
arbitrary and unreasonable inasmuch as considerations which weighed with
the State Government relating to employment of B.Ed. teachers were totally
irrelevant and extraneous. Taking education and getting employment are two H
656 SUPREME COURT REPORTS (2006] 3 S.C.R.

A different things. The colleges are not claiming any grant or financial aid from
the State, nor do they give any assurance or guarantee to students admitted
to B.Ed. colleges that the State will give them employment. It is, therefore, not
open to the State Government to refuse to grant NOC because the State is
not able to give employment to teachers after they get B.Ed. degree. There
B are several Arts, Commerce and Science colleges in the State in which students
take education and get degrees of B.A., B.Com. or B.Sc. It is not even the
case of the State that all those students got employment at one or the other
place. Thus, the so-called policy decision of the State Government not to
grant NOC to B.Ed. colleges is totally irrational. It was also submitted by the
respondents that they had made huge investments and if at this stage they
C will be refused permission, irreparable injury and loss woul_d be caused to
them. Finally, it was submitted that since the decision ofNCTE is legal, lawful
and in consonance with the provisions of the Act as also consistent with the
law laid down by th;s Court in several judgments, the order passed by the
High Court deserves to be upheld by allowing the institutions to open B.Ed.
colleges from the year 2005-06 as has been done by NCTE. If this Court
D considers it appropriate, specific direction may be issued to the respondents
to conduct extra classes/lectures and to hold supplementary/additional
examination. Once the action ofNCTE is found to be lawful and the decision
of the State Government bad, no prejudice should be caused to the institutions.

E Before we deal with the contentions of the parties, it would be
appropriate if we refer to the relevant provisions of law. Part XI of the
Constitution deals with relations between Union and States. Chapter I thereof
relates to legislative relations and distribution of legislative powers. Article
245 enables Parliament to make laws for the _whole or any part of territory of
India. Similarly, a Legislature of a State has power to make laws for the whole
F or any part of the State. Article 246 provides for distribution of legislative
power between Parliament and Legislatures of States and reads thus:

''246. Subject-matter of laws by Parliament and by the legislatures
of States:-(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to any of
G the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to
clause (I), the Legislature of any State also, have power to make laws
with respect to any of the matters enumerated in List III in the
H
STATE OF MAHARASH1RA ,. SA1''T DNY ANESHWAR SHJKSHAN SHASTRAMAHAVJDYALAYA [TilAKKER l) 65 7

Seventh Schedule (in this Constitution referred to as the "Concurrent A
List").

(3) Subject to clauses (I) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with
respect to any of the matters enumerated in List ll in the Seventh
Schedule (in this Constitution referred to as the 'State List'). B
(4) Parliament has power to make laws with respect to any matter for
any part of the territory of India not included [in a State]
notwithstanding that such matter is a matter enumerated in the State
List."
c
Whereas Article 248 provides for residuary power of Legislature, Article
254 covers cases of inconsistency between laws made by Parliament and by
Legislatures of States.

Schedule Vll to the Constitution comprises of three Lists: (i) Union List,
(ii) State List and (iii) Concurrent List. While exclusive power to enact laws D
lies with Parliament under List I, the power to enact laws under List II is with
the State Legislatures. In respect of subjects falling under List 111, it is open
to Parliament as well as State Legislatures to enact laws subject to the
provisions of Articles 254.

Entries 63 to 66 of List I of Schedule VII relate to higher education. E
Entry 66 which is relevant reads thus:

"66. Co-ordination with determination of standards in institutions for
higher education or research and scientific and technical intuitions"

Entry 11 of List II inter alia included university education. It was F
omitted by the Constitution (42nd Amendment) Act, 1976 and became part of
Entry 25 of List III (Concurrent List). Entry 25, as originally stood read as
under:

"25. The vocational and technical training of labour."
G
After the amendment of 1976, the Entry as it stands now reads thus:

"25. Education, including technical education medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour."
H
658 SUPREME COURT REPORTS [2006) 3 S.C.R.
_
-
.....
A The National Council for Teacher Training Act, 1993 has been enacted
by Parliament and deals with teacher's education. It came into force with
effect from July 1, 1995. The Preamble of the Act is relevant and reads thus:

"An Act to provide for the establishment of a National Council for
Teacher Education with a view to achieving planned and co-ordinated
B development of the teacher education system throughout the country,
the regulation and proper maintenance of norms and standards in the
teacher education system and for matters connected therewith."

Section 2 is definition clause wherein various terms have been defined.
"Council" is defined as the National Council for Teacher's Education
C established under sub-section ( 1) of Section 3 of the Act. "Institution" has
been defined as "an institution which offers courses for training in teacher's
~ducation". "Teacher education" is defined thus:

"Teacher education means programmes of education, research or
training of persons for equipping them to teach at pre-primary, primary,
D secondary and senior secondary stages in schools. and includes non-
form al education, part-time education, adult education and
correspondence education."

Under that section. "University" means "University defined under clause
E (f) of Section 2 of the University Grants Commission Act, 1956 and includes
an institution deemed to be a University under Section 3 of that Act." Chapter
II provides for establishment of Council and Chapter III deals with functions
to be performed by the Council. Section 12 imposes duty on the Council to
take necessary steps for ensuring planned and co-ordinated development of
teacher education and for determination and maintenance of standards for
F teacher education. The said section is relevant and may be quoted in extenso:

"12. It shall be the duty of the Council to take all such steps as it may
think fit for ensuring planned and co-ordinated development of teacher
education and for the detenn ination and maintenance of standards for
teacher education and for the purposes of perfom1ing its functions
G under this Act, the Council may-

(a) undertake surveys and studies relating to various aspects of
teacher education and publish the result thereof;
(b) make recommendations to the Central and State Governments,
Universities, University Grants Commission and recognized
H
STATE OF MAHARASHTRA , SANT DNY ANESHW AR SlflKSHAN SHASTRA MAHA VIDYALA YA [THAKKER, J] 6 59

institutions in the matter of preparation of suitable plans and A
programmes in the field of teacher education;
(c) co-ordinate and monitor teacher education and its development
in the country;
(d) lay down guidelines in respect of minimum qualifications for
a person to be employed as a teacher in schools or in recognised B
institutions;
(e) lay down norms for any specified category of courses or
trainings in teacher education, including the minimum eligibility
criteria for admission thereof, and the method of selection of
candidates, duration of the course, course contents and mode of c
curriculum;
(I) Jay down guidelines for compliance by recognised institutions,
for starting new courses or training, and for providing physical
and instructional facilities, staffing pattern and staff qualifications;
D
(g) lay down standards in respect of examinations leading to
teacher education qualifications, criteria for admission to such
examinations and schemes of courses or training;
(h) lay down guidelines regarding tuition fees and other fees
chargeable by recognised institutions;
E
(i) promote and conduct innovation and research in various areas
of teacher education and disseminate the results thereof;
(j) examine and review periodically the implementation of the norms,
guidelines and standards laid down by the Council, and to suitably
advise the recognised institutions; F
(k) evolve suitable performance appraisal systems, norms and
mechanisms for enforcing accountability on recognized institutions;
(I) formulate schemes for various levels of teacher education and
identify recognized institutions and set up new institutions for
teacher development programmes; G
(m) take all necessary steps to prevent commercialization of teacher
education; and
(n) perform such other functions as may be entrusted to it by the
Central Government." H
660 SUPREME GOURT REPORTS [2006] 3 S.C.R.

A Chapter IV is material and provides for '"Recognition of teacher education
institutions." While Section 14 deals with recognition of intuitions offering
course or training in teacher education, Section 15 relates to permission of
new courses or training by a recognized institution and they read thus:

·' 14 (I) Every institution offering or intending to offer a course or
B training in teacher education on or after the appointed day may, for
grant of recognition under this Act, make an application to the Regional
Committee concerned in such form and in such manner as may be
determined by regulations;

Provided that an institution offering a course or training in teacher
C education immediately before the appointed day, shall be entitled to
continue such course or training for a period of six months, if it has
made an application for recognition within the said period and until
the disposal of the application by the Regional Committee.

(2) The fee to be paid along with the application under sub-section
D (I) shall be such as may be prescribed.

(3) On receipt of an application by the Regional Committee from any
institution under sub-section ( 1), and after obtaining from the institution
concerned such other particulars as it may consider necessary, it
shall,-
E
(a) if it is satisfied that such institution has adequate financial
resources, accommodation, library, qualified staff, laboratory and
that it fulfils such other conditions required for proper functioning
of the institution for a course or training in teacher education, as
may be determined by regulations, pass an order granting
F recognition to such institution, subject to such conditions as may
be determined by regulations; or
(b) if it is of the opinion that such institution does not fulfil the
requirements laid down in sub-clause (a), pass an order refusing
recognition to such institution for reasons to be recorded in
G writing;
Provided that before passing an order under sub-clause (b ), the
Regional Committee shall provide a reasonable opportunity to the
concerned institution for making a written representation.

H (4) Every order granting or refusing recognition to an institution for
STATE OF MAHARASHlllA "· SANT DNY ANESHW AR SIIlKSHAN SHASTRA MAHA YIDY ALAYA [TI<AKKER. J J 66 J
a course or training in teacher education under sub-section (3) shall A
be published in the Official Gazette and communicated in writing for
appropriate action to such institution and to the concerned examining
body, the local authority or the State Government and the Central
Government.

(5) Every institution, in respect of which recognition has been refused B
shall discontinue the course or training in teacher education from the
end of the academic session next following the date of receipt of the
order refusing recognition passed under clause (b) of sub-section (3).

(6) Every examining body shall, on receipt of the order under sub-
section (4),- C
(a) grant affiliation to the institution, where recognition has been
granted; or

(b) cancel the affiliation of the institution, where recognition has
been refused.
D
15 ( 1) Where any recognised institution intends to start any new
course or training in teacher education, it may make an application to
seek permission therefor to the Regional Committee concerned in such
form and in such manner as may be determined by regulations.

(2) The fees to be paid along with the application under sub-section E
(1) shall be such as may be prescribed.

(3) On receipt of an application from an institution under sub-section
(I), and after obtaining from the recognised institution such other
particulars as may be considered necessary, the Regional Committee
shall,- F
(a) if it is satisfied that such recognised institution has adequate
financial resources, accommodation, library, qualified staff,
laboratory and that it fulfils such other conditions required for
proper conduct of the new course or training in teacher education,
as may be determined by regulations, pass an order granting G
permission, subject to such conditions as may be determined by
regulation; or

(b) if it is of the opinion that such institution does not fulfil the
requirements laid down in sub-clause (a), pass an orc!er refusing
permission to such institution, for reasons to be recorded in H
662 SUPREME COURT REPORTS [2006] 3 S.C.R.

A writing;
Provided that before passing an order refusing permission under
sub-clause (b), the Regional Committee shall provide a reasonable
opportunity to the institution concerned for making a written
representation.
B (4) Every order granting or refusing perm1ss1on to a recognised
institution for a new course or training in teacher education under
sub-section (3), shall be published in the Official Gazette and
communicated in writing for appropriate action to such recognised
institution and to the concerned examining body, the local authority
c the State Government and the Central Government".

Section 16 opens with a non-obstante clause and requires an affiliating
body to grant affiliation only after recognition or permission by the Council.
Contravention of the provisions of the Act and consequences thereof have
been specified in Section 17. Appellate provision is found in Section 18.
D
Section 31 of the Act enables the Central Government to make Rules to
carry out the purposes of the Act. Likewise, Section 32( 1) empowers the
Council to make Regulations not inconsistent with the provisions of the Act
and the Rules made thereunder for the purpose of carrying out of the provisions
of the Act. Sub-section (2) of Section 32 expressly states that in particular and
E without prejudice to the generality of power to make Regulations, such
Regulations may provide for the matters enumerated in clauses (a) to (p).
Clauses (d), (e), (t) and (g) are relevant and read thus:

"(d) the norms, guidelines and standards in respect of-

F (i) the minimum qualifications or a person to be employed as a
teacher under clause (d) of Section 12;
(ii) the specified category of courses or training in teacher education
under clau~e (e) of section 12;
(iii) starting of new courses or training in recognized institutions
G under clause (t) of section 12;
(iv) standards in respect of examinations leading to teacher
education qualifications referred to in clause (g) of section 12;
(v) the tuition fees and other fees chargeable by institutions
H under clause (h) of section 12;
STATE OF MAHARASHTRA •·. SANT DNYANESHW AR SHIKSHAN SHASTRA MAHA VIDYALA YA (THAKKER, J] 66 J

(vi) the schemes for various levels of teacher education, and A
identification of institutions for offering teacher development
programmes under clause (I) of'section 12;

"(e) the form and the manner in which an application for recognition
is to be submitted under sub-section (1) of Section 14;
B
(t) Conditions required for the proper functioning of the institution
and conditions for granting recognition under clause (a) of sub-
section (3) of Section 14;

(g) the form and the manner in which an application for permission is
to be made under sub-section (I) of Se~tion 15" C
In exercise of the power conferred by Section 32 of the Act, the Council
framed Regulations known as the National Council. for Teacher Education
(Form of application for recognition, the time-limit of submission of application,
determination of norms and standards for recognition of teacher education
programmes and permission to start new course or training) Regulations, D
1995. Regulation 5 deals with the manner of making application and Regulation
8 relates to conditions for recognition. Clauses (e), ( t) and (g) of Regulation
5 read as under:

"5. (e) Every institution intending to offer a course or training in
teacher education but was not functioning immediately before 17.8.1995, E
shall submit application for recognition with a no-objection certificate
from the State or Union Territory in which the institution is located.

(t) Application for permission to start new course or training and/or
to increase intake by recognized institutions under Regulation 4 above
shall be submitted to the Regional Committee concerned with no- F
objection certificate from the State or Union Territory in which the
institution is located.

The State Government shall make available to the concerned Regional
Committee of NCTE its views/recommendations which will be
considered by the Regional Committee while taking a decision on the G
application for recognition."

Regulation 8 imposes conditions for recognition and reads thus:

"8. Condition for recognition:- (a) Regional Committee shall satisfy
itself on the basis of scrutiny and verification of facts as contained H
664 SUPREME COURT REPORTS [2006 j 3 S.C.R.

A in the application for recognition and/or recognition of the institution
where considered necessary or any other manner deemed fit, that the
institutions have adequate financial resources, accommodation, library.
qualified staff, laboratory and such other conditions required for the
proper functioning Of the institutions for the course of training in
teacher education which are being offered or intending to offer.
B
(b) Regional Committee shall ensure that every institution applying
for recognition fulfils the conditions given in Appt:ndix Ill."

It appears that NCTE had framed Guidelines for the State Government/
Union Territory by a notification, dated February 2, 1996 for issuance ofNOC.
C The relevant Guidelines read thus:
"I. The establishment of Teacher Training Institutions by Government,
private managements or any Nher agencies should largely be
determined by assessed need for trained teachers. This need should
take into consideration the supply of trained teachers from existing
D institutions, the requirement of such teachers in relation to enrolment
projections at various stages, the attrition rates among trained teachers
due to superannuation, change of occupation, death etc. and the
number of trained teachers on the live register of the employment
exchanges seeking employment and the possibility of their deployment.
E The States having more than the required number of trained teachers
may not encourage opening of new institutions for teacher education
or to increase the intake.

2. States having shortage of trained teachers may encourage
establishment of new institutions for teacher education and to increase
F intake capacity for various levels of teacher education institutions
keeping in view the requirements of teachers estimated for the next 10-
15 years.

3. Preference might be given to institutions which tend to emphasize
the preparation of teachers for subjects (such as Science, Mathematics,
G English etc.) for which trained teachers have been in short supply in
relation to requirement of schools.

4. Apart from the usual courses for teacher preparation, institutions
which propose to concern themselves with new emerging specialities
(e.g. computer education, use of electronic media, guidance and
H
STATE OF MAHARASHTRA v. SANT DNY ANESHWARSHIKSHAN SHASTRA MAHAVIDYALA YA [THAKKER, l) 665
counselling etc.) should receive priority. Provisions for these should A
however, be made only after ensuring that requisite manpower,
equipment and infrastructure are available. These considerations will
also be kept in view by the institution intending to provide for optional
subjects to be chosen by students such as guidance and counselling
special education etc.
B
5. With a view to ensuring supply of qualified and trained teachers
for such specialities such as education of the disabled, non-formal
education, education of adults, preschool education, vocational
education etc. special efforts and incentives may be provided to
motivate private managements/voluntary organizations for C
establishment of institutions, which lay emphasis on these areas.

6. With a view to promoting p'rofessional commitment among
prospective teachers, institutions which can ensure adequate resid<!ntial
facilities for the Principal and staff of the institutions as well as hostal
facilities for substantial proportion of its enrolment should be D
encouraged.

7. Considering that certain areas (tribal, hilly regions etc.) have found
it difficult to attain qualified and trained teachers, it would be desirable
to encourage establishment of trained institutions in those areas.

8. Institutions should be allowed to come into existence only if the
E
sponsors are able to ensure that they have adequate material and
manpower resources in terms, for instance, of qualified teachers and
other staff, adequate buildings and other infrastructure (laboratory,
library etc.), a reverse fund and operating funds to meet the day-to-
day requirements of the institutions, including payment of salaries, F
provision of equipment etc. Laboratories, teaching science
methodologies and practicals should have adequate gasplants, proper
fittings and regular supply of water, electricity etc. They shou Id also
have adequate arrangements. Capabilities of the institution for filing
norms prepared by NCTE may be kept in view. G
9. Jn the establishment of an institution preference needs to be given
to locations which have a large catchment area in terms of schools of
different levels where student teachers can be exposed to
demonstration lessons and undertake practice teaching. A training
institution which has a demonstration school where innovative and H
666 SUPREME COURT REPORTS (2006] 3 S.C.R.

A experimental approaches can be demonstrated could be given
preference."

In St. John Teachers Training Institute, the validity of the Regulations,
particularly clauses (e) & (t) of Regulation 5 came to be challenged. It was
c.ontended that the provision for submitting an application for recognition
B with NOC issued by the State Government or Union Territory in which the
institution was situated was invalid and ultra vires. It was argued that
Section 14 of the Act mandates NCTE to grant recognition if it is satisfied
that the institution making an application for the grant of recognition has
fulfilled the necessary requirements laid down in the said section. Clauses (e)
C and (t) of Regulation 5, however, insisted the institution to obtain NOC from
the State Government/Union Territory which was wholly outside the provisions
of the Act. State Government/Union Territory was totally alien so far as the
recognition was concerned and by insisting NOC from State Government I
Union Territory, NCTE has created a parallel body unknown to the law and
hence, clauses (e) and (t) of Regulation 5 were liable to be struck down
D declaring them to be ultra vires.

NCTE filed a counter-affidavit and supported the Government contending
that its action of taking assistance from the State Government I Union Territory
could not be held illegal or ultra vires. lt was conceded that sub-section (3)
E of Section 14 imposed duty upon Regional Committees ofNCTE to be satisfied
about fulfillment of necessary conditions and grant of recognition of an
institution which had made an application. The said provision, however,
required the institution to have adequate financial resources, accommodation,
library, qualified staff, laboratory, etc. for proper functioning of the institution
for a course or training in teacher education. It was then stated that there were
F only four Regional Committees in the whole country and hence each Regional
Committee had to deal with application for grant of recognition from more
than one State. It was, therefore, not only difficult but almost impossible for
the Regional Committee to obtain complete particulars and full details of
financial resources, accommodation, library etc. of the institutions applying
G for recognition. Again, the institution might have been located in the interior
part of a district or at a remote place of the State. lt was, thus, a Herculean
task for the Regional Committee to perform and to undertake the exercise and
it was necessary to depend upon some other agency or body for such
information. It was thought that the State Government I Union Territory in
which the institution was situated would be in a better position to supply
H such information so as to enable the regional committee to effectively exercise
STATE OF MAHARASITTRA '·SANT DNYANESHWAR SHIKSHAN SHASTRAMAHAVIDYALAYA [THAKKER J] 667

powers in consonance with law. It was, therefore, made incumbent upon the A
institution to apply for NOC from the State Government/Union Territory
concerned. The Regulations thus facilitated the job of the Regional Committee
in discharging their statutory duties and responsibilities.

It was contended by the petitioners before this Court that there were
no guidelines for the State Government I Union Territory for grant of NOC B
and it was open to such authority to grant or refuse NOC on wholly irrelevant
considerations. The Court, however, referred to the affidavit filed by the State
and perused the relevant Guidelines which ought to be considered for the
grant of NOC and held that the State Government I Union Territory would
confine to matters enumerated in those Guidelines. The Court observed:
c
"A perusal of the guidelines would show that while considering an
application for grant of an NOC the State Government or the Union
Territory has to confine itself to the matters enumerate therein like
assessed need for trained teachers, preference to such institutions
which lay emphasis on preparation of teachers for subjects like D
Science, Mathematics. English etc. for which trained teachers are in
short supply and institutions which propose to concern themselves
with new and emerging specialties like computer education, use of
electronic media etc. and also for speciality education for the disabled
and vocational education etc. It also lays emphasis on establishment
of institutions in tribal and hilly regions which find it difficult to get E
qualified and trained teachers and locations which have catchment
area in terms of schools of different levels where student teachers can
be exposed to demonstration lessons and can undertake practice
teaching. Para 8 of the guidelines deals with financial resources,
accommodation, library and other infrastructure of the institution which F
is desirous of starting a course of training and teacher education. The
guidelines clearly pertain to the matters enumerat.ed in sub-section (3)
of Section 14 of the Act which have to be taken into consideration
by the Regional Committee while considering the application for
granting recognition to an institution which wants to start a course
for training in teacher education. The guidelines have also direct G
nexus to the object of the Act, namely planned and coordinated
development to teacher education system and proper maintenance of
norms and standards. It cannot, therefore, be urged that the power
conferred on the State Government or Union Territory, while
considering an application for grant of an NOC, is an arbitrary or H
668 SCPREME COURT REPORTS [2006] 3 S.C.R.

A unchannelled power. The State Government or the Union Territory has
to necessarily confine itself to the guidelines issued by the Council
while considering the application for grant of an NOC. In case the
State Government does not take into consideration the relevant factors
enumerated in sub-section (3) of Section 14 of the Act and the
guidelines issued by the Council or takes into consideration factors
B which are not relevant and rejects the application for grant of an NOC,
it will be open to the institution concerned to challenge the same in
accordance with law. But, that by itself, cannot be a ground to hold
that the Regulations which require an NOC from the State Government
or the Union Territory are ultra vires or invalid."
c Though it was urged that blanket power had been conferred on NCTE
and there was abdication of essential function by NCTE in favour of State
Government I Union Territory, the contention was negatived observing that
the function performed by the State Government I Union Territory was more
in the nature of collection of data and material. Referring to Regulation 6 as
D amended in 2002. the Court negatived the contentions and observed:

"Regulation 6(ii) of these Regulations provides that the endorsement
of the State Government/Union Territory Administration in regard to
issue of NOC will be considered by the Regional Committee while
taking a decision on the application for recognition. This provision
E shows that even if the NOC is not granted by the concerned State
Government or Union Territory and the same is refused, the entire
matter will be examined by the Regional Committee while taking a
decision on the application for recognition. Therefore, the grant or
refusal of a NOC by the State Government or Union Territory is not
conclusive or binding and the views expressed by the State Government
F
will be considered by the Regional Committee while taking the decision
on the application for grant of recognition. In view of these new
Regulations the challenge raised to the validity of Regulations 5(e)
and (f) has been further whittled down. "lhe role of the State
Government is certainly important for supplying the requisite data
G which is essential for formation of opinion by the Regional Committee
while taking a decision under Sub-section (3) of Section 14 of the Act.
Therefore no exception can be taken to such a course of action."

The Court, however, held that the State Government must exercise
power within "reasonable time". It was indicated that if the State Government
H
STATE OF MAHARASHTRA" SANT DNYANESHWAR SHIKSHAN SHASTRAMAHAVIDYALAYA [THAKKER, J.J 669
would not take a decision within that period, it would defeat the right of the A
institution to have its application considered by ·the regional committee of
NCTE. It was, therefore, proper for the Council to frame appropriate Regulation
for fixing time limit within which a decision should be taken by the State
Government on the application made by the institution for grant of NOC. In
absence of such regulation and fixing of time limit, the Court held that such B
- decision should be taken by the State Government/Union territory within
"four months" failing which NOC would be deemed to have been granted.

It may be stated that after the decision in St. John Teacher Training
Institute, the Regulations have been amended in 2003 and now the period has
been prescribed as six months. C

Mr. Andhyarujina strongly relied upon the above decision and submitted
that the point is finally concluded in the above case and once the action has
been taken by the State Government in pursuance of the Regulations framed
by NCTE which were held intra vires and constitutional, the decision of the
State Government cannot be ignored or overlooked by NCTE and is binding D
upon it. According to the learned counsel, the Cabinet Sub-Committee took
into account relevant circumstances and decided not to grant NOC. The said
decision cannot be held bad and NCTE cannot grant recognition to colleges
to which NOC had not been granted by the State Government.

We may, however, state that NCTE and contesting respondents are right E
in relying upon a decision of this Court in Adhiyaman, referred to earlier. In
Adhiyaman, this Court was called upon to consider the constitutional validity
of some of the provisions of the Tamil Nadu Private Colleges (Regulation)
Act, 1976 and the Rules made thereunder as also the Madras University Act,
1923 and the Rules made thereunder. It was contended that certain provisions F
of the State Acts were inconsistent with the provisions of the Central Act (All
India Council for Technical Education Act, 1987) and hence were inoperative.
This Court upheld the contention of the petitioners and ruled that State
Legislature could no< enforce an Act if it is inconsistent with the Central Act
and to the extent of such inconsistency, the Central Act would operate and G
State Acts would be inoperative.

It is, no doubt, true that in that case, this Court considered the provisions
of the Technical Education Act, 1987 but the provisions of that Act are almost
similar to the provisions of 1993 Act with which we are concerned. The
Preamble of the said Act is also similar to the one with which we are concerned H
and reads thus:
670 SUPREME COURT REPORTS [2006) 3 S.C.R.

A "An Act to provide for the establishment of an All India Council for
Technical Education with a view to the proper planning and co-
ordinated development of the technical education system throughout
the country, the promotion of qualitative improvements of such
education in relation to planned quantitative growth and the regulation
and proper maintenance of norms and standards in the technical
B education system and for matters connected therewith."

The Court considered the relevant provisions of the Constitution read
with Lists I, II and III of Schedule VII and held that the subject of technical
education rested with Parliament as it was covered by Entry 66 of List I of
C Schedule VII and it was not covered by List II or List III. Accordingly, it was
held that if an Act of State Legislature was inconsistent with the provisions
of an Act of Parliament, to the extent of such inconsistency, it would be
inoperative.

Referring to the Preamble of the Act, the Court stated; "The Preamble
D of the Central Act states that it has been enacted to provide for the
establishment of an All India Council for Technical Education with a view to
(i) proper planning and coordinated development of the technical education
system throughout the country. (ii) promotion of qualitative improvement of
such education in relation to planned quantitative growth, (iii) regulation and
E proper maintenance of norms and standards in the technical education system,
and (iv) for matters connected therewith."

In that case, the State Government granted permission to the petitioner
Trust to start new Engineering College subject to fulfillment of certain
conditions. Temporary affiliation was also granted by the University and the
F college started functioning from July, 1987. In 1989, a show cause notice was
issued by the State on the basis of the report of High Power Committee that
the Trust had not fulfilled the conditions imposed on it and as to why
permission should not be withdrawn. University also issued a similar notice
calling upon the Trust to show cause why affiliation should not be cancelled.
The Trust, hence, approached the High Court by filing a petition under Article
G 226 of the Constitution contending inter alia that after passing of the Central
Act, neither the State Government nor the University had power, authority or
jurisdiction to take any action and the only power the State had ,was to refer
the matter to the All India Council of Technical Education since the duty was
imposed on the Council for recognizing or derecognizing any technical
H institution in the country. The contention was upheld by the High Court.
STATE OF MAHARASHTRA,, SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [THAKKER, J] 67 J

When the matter calJ!e up before this Court at the instance of the State A
Government, the Court observed that the larger question involved in the case
was the conflict between the Central Act on the one hand and the State Acts
on the other. Then considering the relevant provisions of the Constitution
and the Central Act and State Acts, the Court stated:

"The aforesaid provisions of the Act including its preamble make it B

- abundantly clear that the Council has been established under the Act
for coordinated and integrated development of the technical education
system at all levels throughout the country and is enjoined to promote
qualitative improvement of such education in relation to planned
quantitative growth. The Council is also required to regulate and C
ensure proper maintenance of norms and standards in the technical
education system. The Council is further to .evolve suitable performance
appraisal system incorporating such norms and mechanisms in
enforcing their accountability. It is also required to provide guidelines
for admission of students and has power to withhold or discontinue
grants and to de-recognise the institutions where norms and standards D
laid down by it and directions given by it from time to time are not
followed. This duty and responsibility cast on the Council implies that
the norms and standards to be set should be such as would prevent
a lopsided or an isolated development of technical education in the
country. For this. purpose, the norms and standards to be prescribed E
for the technical education have to be such as would on the one hand
ensure development of technical education system in all parts of the
country uniformly; that there will be coordination in the technical
education and the education imparted in various parts of the country
and will be capable of being integrated in one system; that there will
be sufficient number of technically educated individuals and that their F
growth would be in a planned manner; and that all institutions in the
country are in a position to properly maintain the norms and standards
that may be prescribed by the Council. The norms and standards
have, therefore, to be reasonable and ideal and at the same time,
adaptable, attainable and maintainable by institutions throughout the G
country to ensure both quantitative and qualitative growth of the
technically qualified personnel to meet the needs of the country. Since
the standards have to be laid down on a national level, they have
necessarily to be uniform throughout the country without which the
coordinated and integrated development of the technical education all
over the country will not be possible which will defeat one of the main H
672 SUPREME COURT REPORTS [20061 3 S.C.R.

A ob.1ects of the statute. This country as is well known, consists of
regions and population which are at different levels of progress and
development or to put it differently, at differing levels of backwardness.
This is not on account of any physical or intellectual deficiency but
for want of opportunities to develop and contribute to the total good
of the country. Unnecessarily high norms or standards, say for
B admission to the educational institutions or to pass the examinations,
may not only deprive a vast majority of the people of the benefit of -
the education and the qualification, but would also result in
concentrating technical education in the hands of the affluent and
elite few and in depriving the country of a large number of otherwise
c deserving technical personnel. It is necessary to bear this aspect of
the norms and standards to be prescribed in mind, for a major debate
before us centred around the right of the States to prescribe standards
higher than the one laid down by the Council. What is further necessary
to remember is that the Council has on it representatives not only of
the States but also for the State Universities. They have, therefore, a
D say in the matter of laying down the norms and standards which may
be prescribed by the Council for such education from time to time. The
Council has further the Regional Committees, at present, at least, in
four major geographical zones and the constitution and functions of
the Committees are to be prescribed by the regulations to be made by·
E the Council. Since the Council has the representation of the States
and the professional bodies on it which have also represent'!tion from
different States and regions, they have a say in the constitution and
functions of these Committees as well. What is further important to
note is that the subject covered by this statute is fairly within the
scope of Entry 66 of List I and Entry 25 of List IJI. Further, these
F regulations along with other regulations made by the Council and the
rules to be made by the Central Government under the Act are to be
laid before Parliament. Hence, on the subjects covered by this statute,
the State could not make a law under entry 11 of List II prior to
Forty-second Amendment nor can it make a law under Entry 25 of
G List !II after the Forty-second Amendment. If there was any such
existing law immediately before the commencement of the Constitution
within the meaning of Article 372 of the Constitution, as the Madras
University Act. 1923, on the enactment of the present Central Act,
the provisions of the said law if repugnant to the provisions of the
Central Act would stand impliedly repealed to the extent of
H repugnancy. Such repugnancy would have to be adjudged on the
STATE OF MAHARASHTRA '· SANT DNYANESHW AR SHIKSHAN SHASTRA MAHA VlDY ALAYA [THAKKER. J.) 673
basis of the tests which are applied for adjudging repugnancy under A
Article 254 of the Constitution."

(emphasis supplied)

The Court then considered the provisions of the State Law and
concluded; "The provisions of the State Act enumerated above show that if B
it is made applicable to the technical institutions, it will overlap and will be
in conflict with the provisions of the Central Act in various areas and, in
particular, in the matter of allocation and disbursal of grants, formulation of
schemes for initial and in-service training of teachers and continuing education
of teachers, laying down norms and standards for courses, physical and
institutional facilities, staff pattern, staff qualifications, quality instruction C
assessment and examinatiOns, fixing norms and guidelines for charging tuition
and other fees, granting approval for starting new technical institutions and
for introduction of new courses or programmes, taking steps to prevent
commercialization of technical education, inspection of technical institutions,
withholding or discontinuing grants in respect of courses and taking such D
other steps as may be necessary for ensuring compliance of the directions
of the Council, declaring technical institutions at various levels and types fit
to receive grants, the constitution of the Council and its Executive Committee
and the Regional Committees to carry out the functions under the Central Act,
the compliance by the Council of the directions issued by the Central
Government on questions of policy etc. which matters are covered by the E
Central Act. What is further, the primary object of the Central Act, as discussed
earlier, is to provide for the establishment of an All India Council for Technical
Education with a view, among others, to plan and coordinate the development
of technical education system throughout the country and to promote the
qualitative improvement of such education and to regulate and properly F
maintain the norms and standards in the technical education system which
is subject within the exclusive legislative field of the Central Government as
is clear from Entry 66 of the Union List in the Seventh Schedule. All the other
provisions of the Act have been made in furtherance of the said objectives.
They can also be deemed to have been enacted under Entry 25 of List Ill.
This being so, the provisions of the State Act which impinge upon the G
provisions of the Central Act are void and, therefore, unenforceable. It is for
these reasons that the appointment of the High Power Committee by the State
Government to inspect the respondent-Trust was void as has been rightly
held by the High Court.'~

The same principle was applied to University Act and the Court held H
674 SUPREME COURT REPORTS [2006] 3 S.C.R

A that after coming into operation of the Central Act, the operation of the
University Act would be deemed to have become unenforceable in case of
technical colleges. It was observed that the provisions of the University Acts
regarding affiliation of technical colleges and the conditions for grant of
continuation of such affiliations by the University would remain operative but
the conditions that are prescribed by the University for grant and continuance
B of affiliation must be in conformity with the norms and guidelines prescribed
by the Council.

The Court then considered the argument put forward on behalf of the
State that while it would be open for the Council to lay down minimum
C standards and requirements, it did not preclude the State from prescribing
higher standafds and requirements.

Negativing the contention, the Court quoted with approval the following
observations ofB.N. Rau, J. in G.P. Stuart v. B.K. Roy Chaudhury, AIR (1939)
Cal 628: 43 Cal W.N 913);
D
"It is sometimes said that two laws cannot be said to be properly
repugnant unless there is a direct conflict between them, as when one
says "do" and the other "don't", there is no true repugnancy, according
to this view, if it is possible to obey both the laws. For reasons which
we shall set forth presently, we think that this is too narrow a test;
E there may well be cases of repugnancy where both laws say "don't"
but in different ways. For example, one lay may say "No person shall
sell liquor by retail, that is, in quantities of less than five gallons at
a time" and another law may say, "No person shall sell liquor by retail,
that is, in quantities of less than ten gallons at a time." Here, it is
obviously possible to obey both laws, by obeying the more stringent
F of the two, namely the second one; yet it is equally obvious that the
two laws are repugnant, for to the extent to which a citizen is compelled
to obey one of them, the other, though not actually disobeyed, is
nullified."

G Reference was also made to a decision of this Court in Jaya Gokul
Educational Trust. Relying on Adhiyaman and reiterating the principle laid
down therein, the Court there held that once the field was occupied by an
Act of Parliament, State Legislature could not have made a statute inconsistent
with the provisions of Central Legislation. The Court, therefore, held that
even if there was a State Law which required something to be done for the
H approval of the State Government for establishing a technical institution, such
STATE OF MAHARASHTRA ,. SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHA VIDY ALAYA [THAKKER, J.) 675
law, if it is inconsistent or repugnant with the Central Law, it would be "void" A
to the extent of repugnancy to the Act of Parliament.

In that case also, like here, the State Government sought to support its
action of not permitting new Engineering College to be established on the
ground of 'policy'. It was stated by the State of Kerala that it would not
permit establishment of any more Engineering Colleges in the State in view B
of large number of already existing colleges bearing in mind the interest of
the students and the employment condition.

Relying on Adhiyaman, it was observed that the so called 'policy' of
the State Government as mentioned in the counte~~afo'a~~ldiied by the State, C
could not be made a ground for refusing approvaL'::n:;~"C"ourt
- ... ... -
held that
~

'essentiality certificate' cannot be withheld by the State Government on any
'policy consideration' because the policy in the matter of establishment of a
new college rested essentially with the Central Government.

The Court Stated : D
"Therefore, the State could not have any 'policy' outside the AICTE
Act and indeed if it had a policy, it should have placed the same
before AICTE and that too before the latter granted permission. Once
that procedure laid down in the AICTE Act and Regulations had
been followed under Regulation 8(4), and the Central Task Force E
had also given its favourable recommendations, there was no scope
for any further objection or approval by the State. We may however
add that if thereafter, any fresh facts came to light after an approval
was granted by AICTE or if the State felt that some conditions
attached to the permission and required by AICTE to be complied F
with, were not complied with, then the State Government could always
write to AICTE, to enable the latter to take appropriate action."

(emphasis supplied)

Our attention was also invited to Thirurnuruga Kirupananda Variyar G
Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v.
State of Tamil Nadu & Ors., [1996] 3 SCC 15 : JT (1996) 2 SC 691. There the
question was of repugnancy between the provisions of the Indian Medical
Council Act, 1956 and Tamil Nadu Medical University Act, 1987 renamed as
Dr. M.G.R. Medical University, Tamil Nadu (Amendment and Validation) Act,
1989. Section JOA of the Indian Medical Council Act, 1956 as inserted by the H
676 SUPREME COURT REPORTS [2006] 3 S.C.R

A Indian Medical Council (Amendment) Act. 1993, which was a Central Act
enacted by the Parliament, required permission for establishing new medical
colleges in the country "notwithstanding anything contained" in the said Act
or any other law for the time being in force. Proviso to sub-section (5) of
Section 5 of Dr. M.G.R. Medical University, Tamil Nadu Act, 1989 (State Act).
B however, enacted: "No college shall be affiliated to the University unless the
permission of the Government to establish. such college has been obtained".
In the light of the proviso to sub-section (5) of Section 5 of the State Act.
it was contended by the State Government that unless permission of the
Government to establish medical college had been obtained from the State
Government, no medical college could be opened, even if such permission
C was granted by the Medical Council under the Central Act. In that case too,
the State Government refused to grant permission to any private Trust to
establish medical college by exercising power under the State Act, on the
ground that it was the policy of the Government not to permit a private Trust
or Management to start medical/dental college. Relying on proviso to sub-
D section (5) of Section 5 of the State Act, it was urged on behalf of the State
Government that the action taken by the State Government was legal. valid
and in accordance with law and an institution cannot make any grievance
against the State Government. The Court thus was called upon to consider
the question as to which Act would prevail. Whereas the Central Act conferred
power on the Central Government on the basis of the recommendation made
E by the Medical Council of India to open a new medical college, the State Act
required the permission of the State Government by enacting that no college
shall be affiliated to the University unless such permission is granted by the
State Government.

F Referring to the relevant provisions of the Constitution, of both the
Acts and the relevant case law on the point, this Court cbserved that the
question which had arisen before the Court was as to the role of the State
Government in the matter of establishment of a medical college.

Interpreting the statutory provisions, this Court held that by enacting
G Section lOA, Parliament had made "a complete and exhaustive provision
covering the entire field for establishment of new medical college in the
country". No further scope is left for the operation of the State Legislation
in the said field which was fully covered by the law made by Parliament. The
Court, therefore, held that the proviso to sub-section (5) of Section 5 of the
State Act which required prior permission of the State Government for
H establishing a medical college was repugnant to Section 1OA of the Central
STATE OF MAHARASHTRA v. SANT DNYANESHV.' AR SHIKSHAN SHASTRA MAHA VlOYALAYA [THAKKER JJ 677
Act and to the extent of repugnancy, the State Act would not operate. The A
Court noted that in the scheme that had been prepared under the Regulations
for the establishment of new medical colleges, one of the conditions for the
qualifying criteria laid down was 'essentiality certificate' regarding desirability
and of having the proposed college at the proposed location which should
be obtained from the State Government. Proviso to sub-section (5) of Section B
5 of the Act, therefore, must be construed only as regards "proposed location".
The 'essentiality certificate', however, could not be withheld by the State
Government on any 'policy consideration' inasmuch as the policy and the
matter of establishment of new medical college rested with the Central
Government alone.

From the above decisions, in our judgment, the law appears to be very
c
well settled. So far as co-ordination and determination of standards in
institutions for higher education or research, scientific and technical institutions
are concerned, the subject is exclusively covered by Entry 66 of List l of
Schedule Vil to the Constitution and State has no power to encroach upon
the legislative power of Parliament. It is only when the subject is covered by D
Entry 25 of List Ill of Schedule VII to the Constitution that there is a
concurrent power of Parliament as well as State Legislatures and appropriate
Act can be by the State Legislature subject to limitations and restrictions
under the Constitution.

In the instant case, admittedly, Parliament has enacted 1993 Act, which E
is in force. The Preamble of the Act provides for establishment of National
Council for Teacher Education (NCTE) with a view to achieving planned and
coordinated development of the teacher-education system throughout the
country, the regulation and proper maintenance of norms and standards in the
teacher-education system and for matters connected therewith. With a view p
to achieving that object, National Council for Teacher Education has been
established at four places by the Central Government. It is thus clear that the
field is ful~v and completely occupied by an Act of Parliament and covered
by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State
Legislature to encroach upon the said field. Parliament alone could have
exercised the power by making appropriate law. In the circumstances, it is not G
open to State Government to refuse permission relying on a State Act or on
'policy consideration'.

Even otherwise, in our opinion, the High Court was fully justified in
negativing the argument of the State Government that no pern1ission could H
be refused by the State Government on ·policy consideration'. As already
678 SUPREME COURT REPORTS [2006] 3 S.C.R.

A observed earlier, policy consideration was negatived by this Court in
Thirumuruga Kirupananda Trust, as also in Jaya Goku/ Educa1iona/ Trust.

It is true that during the pendency. of St. John's Teachers Training
Institute, NCTE framed regulations called the NCTE (Form of application for
recognition, the time limit of submission of application, determination of
B nonns and standards for recognition of teacher education programmes and
pennission to start new course or training) Regulations, 2002.

Regulation 6 required production of'No Objection Certificate' from the
State Government/Union Territory. Clause (I) thereof read thus;

C 6. Requirement of No Objection Certificate from the State
Government/U. T. Administration.

(i) Application from every institution seeking recognition to start a
course or training in teacher education or from an existing
institution seeking pennission to start a new course or training
D and/or increase in intake shall be accompanied by a No Objection
Certification (XOC) from the State or Union Territory in which
the institution is located.

(emphasis 'supplied)

E (ii) to (vii) ....

The above Regulations came into force from November 13, 2002 and
they insisted that application should be accompanied by NOC from the State
Government/Union Territory in which the institution is located.

p In view of the fact, however, that according to us, the final authority
lies with NCTE and we are supported in taking that view by various decisions
of this Court, NCTE cannot be deprived of its authority or power in taking
an appropriate decision under the Act irrespective of absence of No Objection
Certificate by the State Government/Union Territory. Absence or non-
producrion of NOC by the institution, therefore, was immaterial and irrelevant
G so far as the power of NCTE is concerned.

At the time of hearing, our attention was invited by the learned counsel
for the contesting respondents to Perspective Plan 2003-07 published by the
National Council for Teacher Education, New Delhi. It was, inter a/ia, observed
H as under:
STATE OF MAHARASHTRA " SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHAVIDY ALAYA [THAKKER. J.] 679
"In the 10th Plan Central Scheme on Teacher Education, it has A
been estimated that the country will need additional 4,58,000 primary
school teacher and additional 6,08,857 upper primary school teachers.
Therefore, the requirements of the professionally qualified teachers
have to be met by increasing opportunities of pre-service elementary
education based on manpower planning of teachers for each State/
Union Territory. For improving the quality of teacher education, the B
curriculum of pre-service programmes has to be renewed for making
it relevant to the objectives of education and the directions contained
in the Constitution. Above all, professional competence of teacher
educators will have to be developed through in-service programmes
and by introducing different M.Ed. courses with focus on pre-service C
education of stage-specific school education. It is planned to institute
a NatioI1'al Eligibility Test for Teacher Educators based on skills and
_,
'' competencies required for the teaching profession."

Reference was also made to "Department of Secondary and Higher
Education" published by the Government of India on January 25, 2006. The D
compilation relates to Secondary Education, Adult Education, Technical
Education, Higher Education etc. In introduction, it has been stated :

"The Secondary Education which serves as a bridge between primary
and higher education is expected to prepare young persons between
the age group 14-18 in the world of work and entry into higher E
education. The Secondary Education starts with classes 9-10 leading
to higher secondary classes 11 and 12. The relevant children population
at the secondary and senior secondary level, as projected in I 996-97
by NSSO has been estimated at 9.66 crores. Against this population,
the enrolment figures of the 1997-98 shows that only 2. 70 crores F
attending schools. Thus, two-third of the eligible population remains
out of the school system. To accommodate the children in schools at
secondary level, we have at present I. I 0 lakhs institutions (1998-99).
With the emphasis 011. universalisation of elementary education and
programmes like District Primary Education Programme, the enrolment
is bound to increase and once this happens, we may require more than G
two lakhs institutions at the secondary level to accommodate them."

The counsel also referred to the "Annual Report : 2004-05" prepared by
the Department of Elementary Education and Literacy, Department of Secondary
and Higher Education, Ministry of Human Resource Development, Government
of India. In the 'Planning', it was stated: H
680 SUPREME COURT REPORTS [2006] 3 S.C.R.

A "Planning

The National Policy on Education, 1986, as modified in 1992 envisages
the improvement and expansion of education in all sectors, elimination
of disparities in access and laying greater stress on improvement in
the quality and relevance of education at all levels, including technical
B and professional education. It also emphasizes that education must
play a positive and interventionist role in correcting social and regional
imbalance, empowering women and in securing a rightful place for the
disadvantaged and the Minorities.

-
The nation is firmly committed to providing Education for all, the
c priority areas being free and compulsory primary education, covering
children with special needs, eradication of illiteracy, vocationalisation,
education for women's equality, and special focus on the education
of SCs/STs and the Minorities.

The Central Advisory Board of Education (CABE), the highest advisory
D body to advise the Central and State governments in the field of
education, was established in 1920 and dissolved in 1923 as a measure
of economy. It was revived in 1935 and the tenure of the last
constituted Central Advisory Board of Education (CABE) expired in
March 1994. Despite the fact that in the past important decisions had
E been taken on the advice of CABE and it had provided a forum for
widespread consultation and examination of issues relating to
educational and cultural development, CABE was unfortunately not
reconstituted after the expiry of its extended tenure in March I 994.
Considering that CABE has a particularly important role to play at the
present juncture in view of the significant socio economic and socio-
F cultural developments taking place in the country, and that the Central
and State Governments, educationists and people representing all
interests should increase their interaction and evolve a participative
process of decision-making in education. CABE has since been
reconstituted by the Government in July 2004. The Board consists of
nominated members representing various interests in addition to
G representatives of the Government of India, State Governments and
UT administrations, elected members form the Lok Sabha and the
Rajya Sabha, etc. The first meeting of the reconstituted CABE was
held on August 10-11, 2004, and seven CABE Committees.have been
set up on the subjects of:
H
ST ATE OF MAHARASHlR\ •·. SAm- DNY ANESHW AR SHIKSHAN SHASTRA MAHA\ODYALA YA [THAKKERJ] 68 J
(i) Free and Compulsory Education Bill and other issues related to A
Elementary Education
(ii) Giris Education and the Common School System

(iii) Universalisation of Secondary Education
(iv) Autonomy of Higher Education Institutions B
(v) Integration of Culture Education in the School Curriculum
(vi) Regulatory Mechanism for Text Books and Parallel Text Books
taught in Schools Outside ihe Government system

-- (vii) Financing of Higher and Technical Education

A meeting of the Education Ministers of all States/UTs dealing with
c
school education was held on October 28, 2004, at Vigyan Bhawan
under the chairmanship of the Minister of Human Resource
Development.

In order to facilitate donations, including smaller amounts, both from D
India and abroad, for implementing projects/programmes connected
with the education sector, the Government had constituted the "Bharat
Shiksha Kosh" to receive donations/ contributions/endowments, from
individuals and corporates, Central and State Governments, non-
resident Indians and people of Indian origin for various activities E
across all sectors of education.

An Ordinance was promulgated on November I I, 2004, to enable
setting up of a National Commission for Minority Educational
Institutions to advise the Central Government or any State Government
on any question regarding the education of Minorities, to look into p
complaints regarding violation of the rights of the Minorities, to
establish and administer educational institutions of their choice and
to permit a Minority educational institution to seek direct affiliation
with a scheduled Central University. The Commission has started
functioning with a Chairman and two Members."
G
'Teacher Education' has been dealt with thus;

'Teacher Education

The Centrally Sponsored Scheme of Teacher Education was launched
in 1987-88 to create an institutional infrastructure to provide academic H
682 SUPREME COURT REPORTS [2006] 3 S.C.R.

A and technical resource support for continuous education and training
of school teachers. While District Institutes of Education and Training
(DIETs) set up under the Scheme provide academic resource support
to formal and non-formal elementary school teachers, Colleges of
Teacher Education (CTEs) and Institutes of Advanced Study in
Education (IASEs) have been given the responsibility of organizing
B pre-service and in-service training of secondary school teachers. IASEs
are also expected to conduct programmes for the preparation of
elementary school teacher educators.

The Scheme has been revised for the Tenth Plan and guidelines of the
revised Scheme were issued to States in January 2004, with emphasis
c on operationalising sanctioned DIETs, CTEs and IASEs in an optimum
manner, and on improving the quality of teacher training programmes
in them. Since the inception of the Scheme in 1987-88, a total of 550
DIETs/DRCs and 131 CTEs/IASEs have been sanctioned/approved up
to December 2004."
D
About 'Secondary Education'. the Report states:

"Secondary Education

During the year, various schemes were implemented in the secondary
education sector in addition to the continued support to major
E institutions such as the NCERT, NIOS, and CBSE.

There has been a substantial increase in quality and magnitude of the
academic activities of the Central Board of Secondary Education.
During the year, CBSE introduced a course in Disaster Management
in the school curriculum. A new course in Life Skills Education was
F launched in classes VI and VII. It has also launched a new course in
Fashion Studies. In collaboration with Intel India, CBSE organized the
first science exhibition to evoke the interest of students in science.

The NIOS organized an international conference on promotion of
Open Schooling in Goa. Countries like Sri Lanka, New Zealand, Canada
G and UK participated in it. During 2004-05, several new courses were
introduced and many video films on vocational education were
completed. The NIOS has also developed audio and video programmes
based on the curriculum in science. mathematics, etc.

Support to Sarva Shiksha Abhiyan, Vocational Education, Education
H
STATE OF MAHARASHTRA"· SANT DNY ANESHW AR SHJKSHAN SHASTRA MAHA VJDY ALA YA [THAKKER, J.] 68J
of the Disadvan~aged groups, Evolution of text books and examination A
reforms are priority areas ofNCERT.

Kendriya Vidyalaya (KVs) aim at providing uninterrupted educ~tion to
children of Central Government/Defence employees, who are liable to
frequent transfers. In 933 KVs, 7.50 lakh students have been: enrolled
(as on March 31, 2004). KVs have shown steady improvement in the B
performance of its students in board examinations. This is evident
.from the increase of pass percentage from 84.69 per cent to 99.44 per
cent for Class X and 88.67 per cent to 92.75 per cent for Class XII
during 1999 to 2004.

Jawahar Navodaya Vidyalayas aim at providing good quality modem C
education, including imparting cultural values, environment awareness
and physical education to talented children in rural areas, irrespective
of their socio-economic conditions. There are now 509 schools in
various States/UTs and 1,68,545 students were on the rolls of the NVs
as on December 31, 2004. The pass percentage in Class X and XII in D
the year 2004 was 91.3 per cent and 87 .68 per cent, respectively, when
compared with the pass percentage of 88.50 per cent and 85.26 per
cent in 2003.

The Integrated Education for Disabled Children (JEDC) scheme, started
in 1974, provides I 00 per cent funding to State Governments/UTs and E
NGOs. The scheme is proposed to be revised soon. Under the scheme
of Access with Equity, two components strengthening of existing
scheme of girl's hostels managed by NGOs and one-time assistance
to reputed NGOs, Trusts, Societies and State Governments, etc., for·
setting up Secondary Schools are proposed. The scheme is therefore, F
being revised. The two schemes of Computer Literacy and Studies in
Schools (CLASS) and Educational Technology have been merged I
order to increase the effectiveness of the activities For the Tenth Plan,
five schemes, namely, Environmental Orientation to School Education,
Improvement of Science Education in School, National Population
Education Project, Promotion of Yoga in School, International Science G
Olympiad are being merged into a composite scheme of Quality
Improvement in Schools.''

It is thus clear that the Central Government has considered the subject
of Secondary Education and Higher Education at the national level. The Act
of 1993 also requires Parliament to consider Teacher Education System H
684 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 'throughout the country'. NCTE. therefore, in our opinion, is expected to deal
with applications for establishing new B.Ed. colleges or allowing increase in
intake capacity, keeping in view 1993 Act and planned and co-ordinated
development of teacher-education system in the country. It is neither open
to the State Government nor \o a University to consider the local conditions
B or apply 'State policy' to refuse such permission. In fact, as held by this Court
in cases referred to hereinabove. State Government has no power to reject the
prayer of an institution or to overrule the decision of NCTE. The action of
the State Government. therefore. was contrary to law and has rightly been set
aside by the High Court.

C The decision relied on by Mr. T.R. Andhyarujina in Vidharbha Sikshan
Vyawasthapak Mahasangh v. State of Maharashtra & Ors., [ 1986] 4 SCC 361,
has no application to the facts of the case. In that case, the power was with
the State Government to grant or refuse permission to open B.Ed. college.
-
Considering the fact that if permission would be granted, there would be a
large scale unemployment, it was decided by the State Government not to
D allow new B.Ed. colleges to be opened. It was held by this Court that such
policy decision could not be said to be arbitrary or otherwise unreasonable.
The Court in that case was not concerned with the power or authority of State
Government vis-a-vis Central Government and Act of Parliament. In the present
case, as the field was fully occupied by Entry 66 of List I of Schedule VII to
E the Constitution and Parliament has enacted 1993 Act, it was not open to the
State Legislature to exercise power by making an enactment. Such enactment,
as per decisions of this Court, would be void and inoperative. It would be
unthinkable that if State Legislature could not have encroached upon a field
occupied by Parliament. it could still exercise power by executive fiat by
F refusing permission under the ·policy consideration'. The contention of the
State Government, therefore, has to be negatived.

We may state at this stage that the contesting n:spondents have placed
heavy reliance on Section 12 of the Act which relates to functions of the
Council and submitted that it is incumbent on the Council to lay down norms
G and guidelines for ensuring planned and co-ordinated development of the
teacher education and it is not open to the Council to delegate those 'essential
functions' to the State Government. According to them, such delegation
would be excessive and impennissible and abdication of power by the Council
in favour of the State Government which is inconsistent with the provisions
of the parent Act and must be held ultra vires. Jn reply, Mr. Andhyarujuna
H submitted that the constitutional validity of the Regulations or Guidelines had
STA TE OF MAHARASHTRA" SANT DNYANESHWAR SHIKSHAN SHASTRA MAHA VIDYALA YA (TIIAKKER, J.] 685
l not been challenged before the High Court and the respondents now cannot A
be pennitted to raise such point in this Court in the absence of the challenge.
The respondents, however, urged that since they succeeded before the High
Court on other points, it was not necessary for them to challenge the vires
of Regulations. But when the State had approached this Court, they can
support the judgment on any ground available to them including B
unconstitutionality of Regulations and Guidelines. In our opinion, it is not
necessary to enter into larger question since we are satisfied that in the facts
and circumstances of the case, the High Court was justified in allowing the
petitions filed by the colleges and setting aside the order dated December 28,
2004 passed by the State Government and also in dismissing the petition filed

- by the State holding that the order of the State was not legal. We may,
however, observe that the learned counsel for NCTE, Mr. Raju Ramachandran
is right in submitting that the Guidelines pennitted the State Government to
collect necessary data and materials and make them available to NCTE so as
C

to enable NCTE to take an appropriate decision. In accordance with the
provisions of 1993 Act, final decision can be taken only by NCTE and once
. a decision is taken by NCTE, it has to be implemented by all authorities in D
the light of the provisions of the Act and the law declared by this Court. It
has been so held in St. John Teachers training Institute.

The learned counsel for the respondents are also right in relying upon
the provisions of Articles 19 and 2 lA of the Constitution. Under clause (g) E
of Article 19( 1), all citizens have the right to practise any profession, or to
carry on any occupation, trade or business, unless they are restrained by
imposing reasonable restrictions under Article 19(6). In the instant case,
applications had been made by colleges to NCTE under 1993 Act and after
complying with the provisions of the Act, permission was granted by NCTE.
The State thereafter could not have interfered with the said decision. It is also F
clear that Article 21 A would cover primary as well as secondary education
and petitioners could claim benefit of Part III of the Constitution as well.

The respondents have stated that they have spent huge amount and
incurred substantial expenditure on infrastructure, library, staff, etc. and after
satisfying about the necessary requirements of law, permission had been G
granted by the NCTE. If the said action is set aside on the basis of the
decision of the State Government, irreparable loss will be caused to them.
Since in our view, the order passed and action taken by NCTE cannot be
tenned illegal or unlawful and the State Government could not have passed
the impugned order refusing permission on the ground of so called 'policy' H
686 SUPREME COl!RT REPORTS [2006) 3 S.C.R.

A of not allowing new B.Ed. college to be opened, it is not necessary for us to
delve into further the said contention.

Before parting with the matter, we may state that at one stage, the High
Court has observed that "in so far as the University is concerned, considering
the provisions of Section 15 of the NCTE Act, once permission has been
B granted under Section 14, the University is bound to grant affiliation in terms
of the Act, Rules and Statutes. Section 83 requires the University to grant
affiliation only after permission is granted under Section 82 of the Maharashtra
University Act.

c with theTo provisions
that extent the provisions of Section 82 and 83 are inconsistent
of NCTE Act and are null and void".*
(emphasis supplied)

In our opinion, the observations that the provisions of Sections 82 and
83 of the Maharashtra University Act are "null and void" could not be said
D to be correct. To us. it appears that what the High Court wanted to convey
was that the provisions of Sections 82 and 83 would not apply to an institution
covered by 1993 Act. As per the scheme of the Act, once recognition has
been granted by NCTE under Section 14( 6) of the Act, every university

*82. (I) The university shall prepare a perspective plan. and get the same approved by the
E State Council for Higher Education for educational development for the location of
colleges and institutions of higher Iearing in a manner ensuring equitable distribution
of facilities for Higher Education having due regard, in particular. to the needs of
unserved and under-developed areas within the jurisdiction of the university. Such plan
shall be prepared by the Board of College and University Development. and shall be
placed before the Academic Council and the Senate through the Management Council
and shall. if necessary, be updated every year.
F
(2) No application for opening a new college or institution of higher learning. which is
not in conformity with such plan. shall be considered by the university.

(3) The managements seeking permission to open a new college or insitution of higher
learning shall apply in the prescribed form tu the Registrar of the university before
the last day of October of the year proceeding the year from which the permission is
G sought.

(4) All such applications received within the aforesaid prescribed time-limit. shall be
scrutinized by the Board of College and University Development and be forwarded tu
the State Government with the approval of the Management Council on or before the
last day of December of the year. with such recommendations (duly supported by
relevant reasons) as are deemed appropriate by the Management Council.
H (5) Out of the applications recommended by the university. the State Government may
STATE OF MAHARASHTRA" SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDY ALAYA [THAKKER, 1.1 68 7
('examining body') is obliged to grant affiliation to such institution and A
sections 82 and 83 of the University Act do not apply to such cases.

Since we have decided the matters on merits, we hav.e not dealt with
preliminary objection raised by the colleges that the State cannot be said to
be 'person aggrieved' and, therefore, has no locus standi to challenge the
decision ofNCTE. B

grant permission to such institution as it may consider right and proper in its absolute
discretion. taking into account the State Government's budgetary resources, the
suitability of the managements seeking permission to open new institutions and the
State level priorities with regard to location of institutions of higher learning:

Provided, however, that in exceptional cases and for the reasons to be recorded
c
in writing any application not recommended by the university may be approved by the
State Government for starting a new college or institution of higher learning.

Provided further that, from the academic year 2001-2002, such permission from
the State Government shall be communicated to the university on the before 15th July
of the ytear in which the new college is proposed to be started. Permission received
thereafter shall be given effect by the university only in the subsequent academic year. D
83. (I) On receipt of the permission from the State Government under section 82 of the
Academic Council of the university shall consider grant of first time atlilliation to the
new college or institution by following the prescribed procedure given in sub-section
(2) and after taking into account whether and the extent to which the stipulated
conditions have been fulfilled by the college or institution. The decision of the Academic
Council in this regard shall be final. E
(2) For the purpose of considering the application for the grant of affiliation the
Academic Council shall cause an inquiry by a committee constituted for the purpose by
it.

(3) The Academic Council shall decide-

(a) whether affiliation should be granted or rejected;
F
(b) whether affiliation should be granted in whole or part;

(c) subjects, courses of study. the number of students to be admitted;

(d) conditions, if any which may be stipulated while granting or for granting
the affiliation.
(4) The Registrar shall communicate the decision of the Academic Council to the
G
Management with a copy to the Director of Higher Education, and if the application
for affiliation is granted. alongwith an intimation regarding:-
(a) the subjects and the courses of study approved for affiliation;
(b) the number of students to be admitted.
(c) the conditions, if any, subject to the fulfillment of which the approval is granted. H
688 SUPREME COURT REPORTS [2006] 3 S.C.R.

A We may, however, state that the academic year 2005-06 is almost over
and as such it is not possible to grant the prayer of respondent-colleges to
allow them to admit students for the year 2005-06. It is, therefore, directed that
the order passed by NCTE would operate from the next academic year, i.e.
from the year 2006-07.

B For the foregoing reasons, all the appeals filed by the State are liable
to be dismissed and are accordingly dismissed with costs. Interim stay granted
earlier is hereby vacated.

B.K. Appeals dismissed.

- ...

5. The procedure referred tu in >ection 82. except the second proviso tu sub-section (5)
thereof. shall mutatis-mutandis, apply for the permission to open new courses and
additional Faculties. The procedure for permission for starting new subjects and
additional divisions in the existing colleges and institutions shall be such as may be
prescribed by the State Government. from time to time.

6. No student shall be admitted by the college or institution unless the first time affiliation
has been granted by the university to the college or institution.

7. The procedure referred to in sub-sections (I) to (4) shall apply. mutatis-mutandis. for
the consideration of continuation of affiliation. from time to time.