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Judgment
N. Paul Vasanthakumar, J.—In this writ petition, petitioner seeks to quash the order of the second respondent dated 6.1.2006 and direct
the second respondent University to accord affiliation forthwith to the petitioner College of Education offering B.Ed degree course on the basis of
its application dated 2.8.2004 and in terms of the order of recognition given by the third respondent dated 29.12.2005.
The brief facts necessary for disposal of the writ petition as stated in the affidavit in support of the writ petition are as follows.
(a) Petitioner College is established and administered by the Trust known as ''Sri Sankara Educational & Charitable Trust, Trichy'', which is a
registered Trust. The object of the Trust is to spread higher technical eduction to the younger generations of this country by means of establishing
educational institutions. The petitioner College was established to meet one of the objects of the Trust.
(b) The Trust applied before the first respondent for grant of No Objection Certificate for getting recognition on 2.8.2004 and also applied for
recognition before the third respondent under the NCTE Act, 1993 on 29.12.2004. The petitioner sent reminderes for the grant of recognition to
the third respondent and to the first respondent for issuing No Objection Certificate. The petitioner Institution has simultaneously applied to the
second respondent for the grant of affiliation in favour of the proposed B.Ed College from the academic year 2005-2006 by making application
dated 2.8.2004.
(c) As there was no response from the first respondent for the grant of No Objection Certificate and from the third respondent for the grant of
recognition, petitioner filed W.P. No. 5080 of 2005 and prayed for issuing a writ of mandamus directing the third respondent to consider the
petitioner''s application dated 26.12.2004 seeking recognition to the B.Ed college. This Court by order dated 16.2.2005 directed the third
respondent to consider the application of the petitioner Institution and pass orders thereon within three months.
(d) On 13.11.2005, the third respondent sent an inspection team and submitted a report. In December, 2005, the Regional committee, in its
meeting resolved to grant recognition to the petitioner''s B.Ed College from the academic Session 2005-2006 and granted an order of recognition
on 29.12.2005 from the academic year 2005-2006 with an annual intake of 100 students.
(e) On 30.12.2005 petitioner sent a request to the second respondent for grant of affiliation from the academic year 2005-2006. Thereafter the
petitioner received the impugned proceedings from the second respondent dated 6.1.2006 stating that the affiliation proposal will be considered
only on production of following documents/fulfilment of conditions,
(1)Permission from the State Government for starting the college as required u/s 3 of the Tamil Nadu Recognised Private Colleges (Regulation)
Act, 1976.
(2)A copy of the notification published in the Gazette of India, Part-III, Section 4 regarding the grant of recognition by the NCTE for offering
B.Ed. degree course for the petitioner''s proposed college.
(3)Details of eight teachers recruited through Selection Committee as per the NCTE prescription.
(4)A copy of the proposal sent to the NCTE in the prescribed format.
The said order dated 6.1.2006 is challenged in this writ petition contending that the permission/NOC from the State Government is not required
under the Tamil Nadu Private Colleges (Regulation) Act, 1976. The third respondent already sent a recognition order copy to the second
respondent with a covering letter dated 30.12.2005 and the list of teachers is also available and when the petitioner approached the University to
give the application format for the approval proposal of the eight teachers, it was informed by the second respondent that applications would be
given only after obtaining State Government permission for establishing the college.
The second respondent has filed counter affidavit wherein it is stated that a request was made to grant affiliation to the petitioner''s B.Ed college
for the academic year 2005-2006 on 2.8.2004, but the said request did not contain any details as to the approval granted by the third respondent
and thereafter another letter was received on 30.12.2005 making similar request enclosing copy of the NCTE recognition was received by the
second respondent University on 23.3.2006. It is also stated that the petitioner has not applied for affiliation in the prescribed format and after filing
this writ petition petitioner made a request to issue a copy of the application by letter dated 21.8.2006 and thereafter the second respondent issued
application, which is yet to be submited along with necessary fees. It is further stated that the second respondent passed the impugned order with
regard to condition No. 1 seeking permission/NOC from the State Government in view of the Division Bench judgment of this Court in W.A. No.
377 of 2005 dated 26.9.2005, as against which SLP was filed and the same was also dismissed. Hence the first condition was withdrawn. Insofar
as the second condition is concerned, the recognition order granted by the NCTE has not been published in the official gazette and it is mandatory
and therefore without the order being published in the official gazettee the University will not consider the request for the grant of affiliation. Insofar
as condition No. 3 is concerned petitioner has not submited the details of 8 teaches recruited through Selection Committee and on 21.8.2006
respondent University sent the rules and regulations for selection of the teachers for complying with the norms and regulations.
Petitioner Institution has filed an additional affidavit and stated that 15 institutions were granted affiliation without gazette publication and the
petitioner is discriminated, for which the second respondent stated in the counter that the petitioner should prove the said allegation.
An additional counter affidavit has been filed on 22.9.2006 wherein it is stated that the petitioner sent a demand draft for Rs. 10,000/- towards
affiliation fee on 21.9.2006 and the same was returned with a direction to apply in the prescribed format and a format is also enclosed along with
the counter affidavit. The second respondent further contended that the petitioner was directed to apply for affiliation in the prescribed format with
necessary fees. Insofar as the list of colleges alleged by the petitioner, which have been granted affiliation without Gazettee notification, it is stated
that the 11 colleges have produced NOC from the State Government and therefore they were granted affiliation and with regard to three colleges
are concerned affiliation has not been granted. Insofar as one other college is concerned, SLP is still pending and the second respondent prayed
for dismissal of the writ petition.
The learned Counsel appearing for the petitioner argued that the petitioner''s application for affiliation is bound to be considerd by the second
respondent as recognition has been granted by the third respondent, who is the competent authority u/s 14 of the National Council for Teacher
Education Act, 1993, and the recognition having been granted by the third respondent, second respondent is not justified in not granting affiliation
stating one reason or the other. The learned Counsel also argued that the affiliation fee is paid and the stand taken by the second respondent that
only after gazettee notification, the application for affililation will be considered is totally untenable and it is in effect, ignoring the order of the third
respondent, who is the statutory authority under the Central Act. Learned Counsel also submitted that the petitioner is willing to fill up the format
now enclosed along with the counter affidavit even though all documents have already been submitted.
The learned Counsel appearing for the second respondent submitted that unless and until Gazette notification is enclosed along with the
application, the second respondent is not bound to consider the application for the grant of affiliation to the petitioner College even though
recognition is granted by the third respondent. The learned Counsel ultimately submitted that if the petitioner produces the gazettee notification the
University is willing to consider the application for affiliation after making inspection and without the same second respondent will not consider the
affiliation application. Insofar as the list of teachers are concerned, learned Counsel for the second respondent accepted the receipt of list of
teachers and other documents submitted before the third respondent and the same is not now disputed.
I have considered the submissions of the learned Counsel for the petitioner as well as the learned Counsel for the respondents.
The only question remains to be decided in this writ petition is, when the second respondent is not pressing for NOC/permission from the State
Government, whether the second respondent is justified in not considering the application for affiliation on the ground that recognition order granted
by the third respondent is not gazetted.
It is an admitted case that the third respondent, who is the competent authority to grant recognition passed an order on 29.12.2005 and a copy
of the same is marked to all the authorities including the second respondent. It is stated in the said order that recognition is granted u/s 14(1) of the
NCTE Act and the order is to be published in the Gazettee of India, Part-III, Section 4.
I have perused the conditions prescribed by the second respondent for the grant of affiliation in the Satutes of Bharathidasan University.
Nowhere in the conditions it is stated that for grant of affiliation, Gazette notification is required even though recognition is granted by the
competent authority. The meaning of the word ""gazette"" as per P.Ramanatha Aiyar''s Advanced Law Lexicon is as follows,
''Gazette'' generally means the official Gazette, published under the authority of the Government (R. v. Hold 5 T.R. 439). It is a Publication of an
official character which contains government notifications, lists of public appointments and honours, legal notices, etc.
It is to be noted that the recognition order given by the third respondent does not impose any pre-condition that only after the order is gazetted it
will come into operation. It only states that the same should be gazetted. The third respondent being a statutory authority created under the Central
Act, already informed the second respondent, which was created under the State Act officially about the grant of recognition and there is no
dispute with regard to the receipt of the same. Hence the date of gazetting is immaterial for processing the application for affiliation of the
petitioner''s B.Ed College.
From the additional counter affidavit filed by the petitioner, it is seen that several colleges were granted affiliation without reference to the
publication of recognition in the Official Gazette. The reply affidavit dated 11.9.2006 merely states that 11 B.Ed colleges were granted affiliation on
the basis of production of NOC from the State Government. It is not stated that the recognition orders of those 11 colleges have been gazetted in
the Government of India Gazette. Therefore it is clear that even without gazette notification issued by the Government of India publishing the grant
of recognition by the third respondent, the second respondent has granted affiliation to 11 B.Ed Colleges. If at all the publication of the gazette is a
pre-requisite condition for considering affiliation application, the second respondent ought not to have granted affiliation to the 11 colleges as stated
in the additional affidavit and the only distinction made in the additional counter is that those 11 stitutions produced NOC from the State
Government and the same is not required for the grant of recognition.
This Court in the decision reported in 2005 WLR 257 Madras education and Research, Integrated Trust v. The Periyar University rep. by its
Registrar, etc. and Anr. in paragraphs 13 and 14 held that NOC from the State Government is not required to be produced for the grant of
affiliation and the University Statute, which requires NOC/prior permission from the State Government is to be declared as inoperative i.e, Section
5(5) of the Tamil Nadu Dr.MGR Medical University for the grant of affiliation to Medical Colleges as declared in the case of Thirumuruga
Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, and St. Johns Teachers Training Institute Vs. Regional
Director, National Council for Teacher Education and Another, in sofar as the grant of affiliation to the Teacher Training Institutions are concerned
and held that the requirement of production of NOC or permission from the State Government cannot be insisted upon and the concerned
Universities including the second respondent University were directed to consider the application for affiliation without reference to the grant of
NOC/permission from the State Government. The second respondent filed writ appeal along with other Universities and the same were also
dismissed by judgment reported in Bharathidasan University and Others Vs. Dhanalakshmi Srinivasan, Educational and Charitable Trust and
Others, . In the said judgment, the Division Bench of this Court considered the judgments of the Honourable Supreme Court reported in State of
T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, : Thirumuruga Kirupananda Variyarthavathiru Sundara
Swamigalme Vs. State of Tamil Nadu and Others, ; Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher
Education Department, Thiruvananthapuram, Kerala State and Another, , etc., and dismissed the writ appeals with a direction to consider the
request for affiliation by the respective universities within a specified time. SLP filed against the said decision was also dismissed by the Honourable
Supreme Court in SLP (Civil) No. 6241 of 2005, order dated 17.4.2006 following the judgment reported in State of Maharashtra Vs. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, .
In the decision reported in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, , the Honourable
Supreme Court in para 67 held as follows,
In view of the fact, however, that according to us, the final authority lies with 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.
The honourable Supreme Court in the above referred judgment considered the scope of NCTE Act with reference to the power of the State
Government and held that NCTE Act alone covers the grant of recognition to the Teacher Education Courses and it is neither open to the State
Government nor to the University to consider the local conditions or apply State policy to refuse permission and the State Government has no
power to reject the prayer of the Institution or to overrule the decision of NCTE as the same will be contrary to Law.
From the perusal of the said Judgment it is clear that the second respondent University which is created by the State Government has no
power to reject the prayer of the Institution requesting affiliation to overrule the decision of the NCTE. By not considering the affiliation request of
the petitioner, in effect the second respondent is overruling the decision of the NCTE with regard to the grant of recognition of the petitioner B.Ed
College.
Recently a Division Bench of this Court in the decision reported in The State of Tamil Nadu Vs. V.S.B. Educational Trust, The Anna
University and The Centre for Engineering, considered the validity of Section 5(ac) of the Anna University Act, requiring prior permission from the
State Government for considering the application for affiliation of the Engineering Colleges after the grant of approval by the AICTE and the
Division Bench, after analysing the entire case law on the subject held that the said section is inoperative as it is inconsistent to the AICTE Act.
As rightly contended by the learned Counsel for the petitioner, the publication in the gazette is only a formality. Third respondent being a
statutory authority has already communicated its decision to the second respondent. Further publication in the gazette is to be made by the
Government of India and the petitioner has no say in the matter. Hence insisting the petitioner to produce gazette copy of the recognition order, for
the grant of affiliation at this stage, is an impossibility of performance on the part of the petitioner. It is to be noted that once recognition is granted
publication in the gazette is automatic and the third respondent will furnish the details in the prescribed manner and remit the required fees for
publication in the gazette and as per the procedure being adopted for publication to be made, the Government of India will gazette the same.
The second respondent is therefore not justified in not considering the application for affiliation on the ground that the gazette publication of the
recognition order is not submitted by the petitioner. It is established before this Court that 11 institutions were granted affiliation by the second
respondent without their recognition being published in the Gazette. Hence the action of the second respondent is discriminatory and indirectly
insisting the production of NOC. The same is accepted in the additional counter affidavit. The said stand is contrary to the decision of the
Honourable Supreme Court reported in Anjuman-E-Islam Vs. The State of Karnataka and Another, In paragraph 3 of the said judgment, the
Honourable Supreme Court taking note of the discrimination in the grant of affiliation directed to grant affiliation from 2002-2003.
Section 14(3) of the NCTE Act, 1993, states that on receipt of the application by the Regional Committee and after satisfaction that the
Institution has the adequate financial resources, accommodation, library, qualified staff, laboratory, etc., recognision is to be granted u/s 14(4)
which reads as follows,
Section 14(4) Every order granting or refusing recognition to an institution for a 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 institution and to the concerned examining body,
the local authority or the State Government and the Central Government.
Under Sub-section (6) of Section 14 it is stated that every examining body shall on receipt of the order under Sub-section (4) grant affiliation to the
institution where recognition has been granted. Similarly Section 16 gives direction to the Universities to grant affiliation, which reads as follows,
Section 16. Affiliating body to grant affiliation after recognition or permission by the Council. - Notwithstanding anything contained in any other law
for the time being in force, no examining body shall, on or after the appointed day,
(a) grant affiliation, whether provisional or otherwise, to any institution; or
(b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution, unless the institution
concerned has obtained recognition from the Regional committee concerned, u/s 14 or permission for a course or training u/s 15.
A perusal of Section 14(4) and 14(6) read with Section 16 makes it clear that the second respondent Unviersity is bound to grant affiliation either
provisionally or otherwise to the institution if the Institution comply with the norms fixed for affiliation. The non-consideration of the application for
affiliation on the ground of non-production of Gazette publication is to be treated as violation of the provisions of Section 14(4), (6) and 16 of the
Act.
In the decision reported in 2006 WLR 549 (Vinayaka Missions''s College of Nursing and Para-Medical Sciences v. The Tamil Nadu Nurses
and Midwives Council and Ors.) a Division Bench of his Court (myself sitting along with another learned Judge) in para 16, dealt with the decisions
rendered by three learned single Judges, which reads as follows,
Mr.S.S.Subramani, J., in W.P. No. 1270 of 1999 dated 22.2.1999 (Kousalya Ramamurthy and Ors. v. Pondicherry University), relying on
the observation that all the authorities concerned should take simultaneous decision and one authority cannot delay the process and that when once
AICTE has granted permission, the Management would be legally entitled to admit the students. In W.P. No. 23925 of 2001 by order dated
22.3.2002 (Aarupadai Veedu Medical College v. Pondicherry University), A. Kulasekaran, J. had observed that when once the Central
Government has granted permission to admit the students, it was not right on the part of the University to prescribe a different period by rejecting
the application for affiliation. In St. Xavier''s Educational Trust v. Manonmaniam Sundaranar University and Ors. W.P. No. 20496 of 2000, by
order dated 19.12.2000, K.Govindarajan, J. directed the University to grant affiliation for the academic year 2000-2001, though the judgment
was rendered on 19.12.2000.
In para 20 of the Judgment, the Division Bench also extracted the relevant portion of the order in W.P. No. 10850/2004 passed by Mr.Justice
K.P.Sivasubramaniam, in para 20 and 21, which read as under,
While parting with this case, it would be appropriate to place on record the total unsustainability of the methodology adopted by the various
authorities who are involved in the grant of permission/sanction/affiliation, etc., for starting a professional college/courses, namely, Medical dental,
Nursing, Teachers'' Training, Engineering, Technical, etc. when the Government is not able to run such educational Institutions and the right of
education being recognised as a fundamental right, the need of imparting education through private sector had become inevitable and a recognised
feature. But, in order to see to it that the private sector does not exploit the situation commercially and in an unconscionable manner and to ensure
proper standards, many regulations have been formulated to control the fee structure, to ensure all infrastructural facilities, staff pattern, etc., before
and after the institution is allowed to admit the students and commence its functioning. In the said process, necessarily different authorities are
involved such as Central and State Governments, Governing Councils like the Medical Council, Dental Council, AICTE, etc., and the University.
No doubt, these authorities have to act independently in their own spheres and according to their own standards. But it should not be forgotten that
they are statutory authorities discharging the functions of one single entity, namely, the Sovereign Government. The various authorities above-
mentioned are part and parcel of that single entity and they function differently only for administrative reasons and due to division of labour. But the
unfortunate outcome of such division of labour is the impossible and impracticable situations and requirements which the applying institution has to
face for establishing itself. Which authority is to be approached first, second third or last is a question which no one can answer. But one thing is
sure. ""A: authority would require the approval by ""B"", ""C"" and ""D"" authorities, while ""B"" authority would require approval/permission by the other
three authorities and likewise in the case of ""C"" and ""D"" authorities. I ask myself the question as to how this could be possible at all and where is
the need for such a requirement. The applying institution is expected to successfully complete this jugglery, after having invested several lakhs of
rupees only to find at last being told that students cannot be admitted for the particular academic year. This situation inevitably leads to red-tapism,
corruption, favouritism and inconsistent orders being passed in favour of and against different institutions by adopting different yardsticks. This
rigmarole is going on for the past many years, flooding the Courts with petitions where it is also found that innocent students are caught in this
confusion. They already have a frightening and competitive future ahead of them and even at the threshold of their professional education, they are
subjected to painful suspense and many times, are forced to loose money and valuable years when they are told that the institution in which they
are admitted is not yet recognised or affiliated. Take for instance this case itself where the Government of Pondicherry itself directs the College to
admit the students, while the University states that they cannot affiliate, as the application was belated. If only simultaneous applications are made
possible, this problem would not have arisen at all. When the petitioning College is required to approach the University only after the Essentiality
Certificate is given by the Government, it results in unnecessary delay and the requirement that the application for affiliation should have been made
on or before 15th of August of the previous year itself is rendered impossible. Further, it is also seen that while the Indian Nursing Council grants
permission on 20.9.2003, the Tamil Nadu Nursing Council points out certain defects and ultimately grants its approval only on 11.5.2004. It is
baffling to find that both the Nursing Councils should be involved though they operate only on the same field, but both of them have different
approach regarding the infrastructural requirements.
Who is responsible for this situation and is it such a complicated issue to evade solution by the educational authorities ? It should be certainly
possible to evolve a methodology by which the applying institution would be required to present its application before all the authorities
simultaneously, something in the nature of a single window system and a time limit for all the authorities to pass orders for directions to rectify the
defects, if any, and to comply with the requirements.
Following the above said decisions and other decisions of the Honourable Supreme Court and Division Bench of this Court, the stand taken by the
University in that case that the application for affiliation having been submitted beyond the cut off date, was not accepted and a direction was
issued to consider the grant of affiliation by making inspection within four weeks.
In the decision reported in 2006 (3) SCALE (cited supra), in para 75 the Honourable Supreme Court taking note of the passage of time that
is, the academic year 2005-2006 being almost over, directed the University to consider grant of affiliation for the academic year 2006-2007,
pursuant to the recognition granted by the third respondent for the academic year 2005-2006.
In this case also, the academic year 2005-2006 is almost over and the second respondent University is directed to consider the grant of
affiliation for the academic year 2006-2007 by making inspection and pass orders within four weeks from the date of receipt of copy of this order.
The writ petition is disposed of with the above direction. No costs. Connected miscellaneous petition is closed.