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Judgment
V.S. Sirpurkar, J.—This common judgment will dispose of all the above mentioned writ appeals filed by the State Government challenging
the judgment of the learned single Judge (S.S. Subramani, J.) whereby, the learned single Judge set aside the orders passed by the State
Government refusing to give ""No Objection"" for opening up Teacher Training Institutions made on behalf of number of educational institutions.
Some institutions have filed writ petitions wherein they have claimed a writ to the State Government to grant ""No Objection Certificate"" to start
Teacher Training Institutes. W.A. No. 10300 of 1999 is filed challenging the dismissal of the writ petition of above mentioned nature while,
W.A.No. 538 of 2000 is filed challenging a judgment whereby the writ petition filed by the petitioner was dismissed by a learned single Judge (D.
Murugesan, J.) in favour of the State Government. The above-mentioned writ petitions came to be tagged along with the pending writ appeals filed
by the Government by the order of the Court as a common question was involved regarding the scope of State Government''s discretion pertaining
to the ""No Objection"" required to be given by it under the Regulations before the application for permission to start a Teacher Training Institute is
submitted to the National Council for Teacher Education (hereinafter referred to as ""the Council"").
An Act called ""National Council for Teacher Education Act, 1993"", (in short ""the Act"") came to be enacted by the Parliament and the Council
was established thereunder more particularly Section 3 thereunder. This was with a view to achieve planned and co-ordinated development of
teacher education system throughout the country as also to lay down norms for establishment, regulation and maintenance of the Teacher Training
Institutions with a view to standardise the teacher education system all over the country. Under clause (f) of Section 12 of the Act, the Council has
a task of laying down the guidelines for compliance by recognised institutions for starting new courses or training and for providing physical and
infrastructural facilities, staffing pattern and staff qualifications as also to take necessary steps to prevent commercialisation of teacher education.
Needless to say that the Council has the exclusive jurisdiction to allow the starting, establishing and maintaining any teacher training institute. A
modality for recognition of teacher training institutes is provided in Chapter IV of the Act. Sections 31 and 32 deal with the powers to make the
Rules and Regulations respectively. Regulations 5(e) and 5(f) are the relevant regulations for the present controversy. Under Regulation 5(e) every
educational institution intending to offer a course of training in teacher education which was not functioning immediately before 17.8.1995 has to
submit an application for recognition with a ""No Objection Certificate"" from the State Government or Union Territory in which the institution is
located. Regulation 5(f) conveys that any application for permission to increase the intake by the recognised institution shall be submitted to the
Regional Committee concerned with ""No Objection Certificate"" from the State or Union Territory in which the institution is located. In short, the
two regulations provide for obtaining a ""No Objection Certificate"" before any institution is started and/or before any institution wants to increase
the strength of the students to be admitted.
These two regulations came to be challenged in a batch of writ petitions (W.P.Nos.1079 and 1253 of 1995, etc.) before this Court and the
Division Bench upheld the validity by confirming that the regulations could not be said to be inconsistent with the Act merely because the Act did
not provide for production of a ""No Objection Certificate"" from the State Government. The Division Bench also held that the State Government
could not be said to be an alien body totally unconnected with the subject of teacher education and, therefore, the regulations 5(e) and 5(f) could
not be said to be a piece of unnecessary legislation and on that count, the said regulations could not be held to be unreasonable. It was further held
that the validity of the order of the State Government while considering the application under Regulation 5(e) was not the question arising before it
and could be challenged separately if the need so arose. Before us, the parties candidly admit that there is no question of validity of regulations 5(e)
and 5(f) involved in the present appeals and the question involved is about the correctness of the orders passed by the State Government rejecting
the applications filed by a number of educational institutions for ""No Objection Certificate"" to start teacher training institutions.
As the factual matrix shows that number of applications came to be made for obtaining ""No Objection Certificate"" under Regulation 5(e) before
the State Government and the State Government has chosen to reject those applications predominantly on the common ground that there were
thousands of unemployed trained teachers on the rolls of the Employment Exchange and there was no possibility of such teachers being provided
with jobs by the State Government and as such, ""No Objection Certificate"" could not be given for starting a fresh teacher training institute. The
parties agree that there is no other reason given than the one which has been indicated above though the format of the answer slightly differs in
individual cases. Batch of writ petitions came to be filed predominantly on the ground that the State Government had rejected all the applications
for ""No Objection Certificate"" mechanically and by way of a policy without adhering and considering the applications individually. In that, the State
Government had not bothered to consider number of other relevant considerations which were extremely relevant and necessary. It was also a
stand of the petitioners that the order of the State Government though individually passed on the application which was in complete contravention
of the law laid down by the Division Bench in Emmanuel Teacher Training Institute case. 1997 WLR 129. According to the petitioners, the object
of the Act, guidelines provided by the Council and other relevant considerations were patently ignored by the State Government. Great stress was
laid on the observations made in paragraphs 7 to 9 of the said decision.
The learned single Judge has accepted the contention raised and has set aside the orders passed by the State Government. The learned Judge
also found that the factual stand of the State Government that there were already trained teachers in excess of the demand and that it was not
possible to give employment to them and for that reason it was not feasible to start new teacher training institutes was not substantiated by the
State Government. The learned Judge, therefore, proceeded to direct the State Government to restore the applications and pass revised orders
taking into consideration the facts referred to in the judgment and also such other matters which would be urged by the petitioners. It is against this
judgment that the State Government has filed individual writ appeals.
As we have already indicated, some writ petitions came to be field on behalf of. the Management desirous of starting new Teachers'' Training
Institutes and seeking the ""No Objection Certificate"" from the State Government therefor. The said writ petitions also came to be tagged along with
the present appeals. We have also indicated that two other writ appeals, which are at the instance of the Management, challenging the dismissal of
the writ petitions are also tagged along with this batch.
Mr.V. Rajasekaran, learned Special Government Pleader assailed the judgment of the learned single Judge on various grounds suggesting that
the learned single Judge was not right in holding that the State Government had rejected all the applications by way of a ""policy"" though the
applications came to be rejected more or less for the common reason. The learned Government Pleader urged that there was an active exercise
undertaken to probe into the existing relevant facts as a result of which, vital statistics collected by the State Government which itself justified the
common decision taken by the State Government not to allow any new Teachers'' Training Institute to be opened and for that purpose refusing the
No Objection Certificate"" under Regulation 5(e). The learned counsel also criticised that the learned single Judge should not have relied on the
newspaper reports on some factual matters like the number, of unemployed trained teachers in preference to the statistics provided by the State
Government on affidavit. It was also urged that the guidelines by the council were certainly taken into consideration by the State Government and
under the said guidelines, which were not necessary for the Government to consider the need of the teachers'' training institutes locality-wise or
area-wise and it is enough if the State Government considered the need vis-a-vis the whole State.
As against this, the respondents were lead by the learned senior counsels M/s.V.T. Gopalan and K. Chandru, K.M. Vijayan and learned
counsels M/s. Paul Vasanthakumar, G. Thilakavathy and Subba Reddy. Generally, the learned counsels appearing on behalf of the respondents
pointed out that the decision of the State Government was in patent ignorance of the Division Bench Judgment of this Court in Emmanuel''s case,
1997 WLR 129. The learned counsel relied on the various provisions of the Act and pointed out that even the factual view expressed by the State
Government regarding the number of unemployed trained teachers and the need for rnore number of such teachers was not correct. It was strongly
contended practically by all the learned counsels that the need could not be considered vis-a-vis the whole State but the need of a particular
locality such as hilly areas, tribal areas, rural areas was bound to be considered by the State Government. Reliance was also placed on Article 45
of the Constitution of India wherein the spread of education was insisted upon by the Constitutional forefathers. It was, therefore, contended that
there would be a constant increase in the primary schools, the middle schools and indeed such increase was necessary and was in the nature of a
duty on the part of the State Governments considering that the education and rnore particularly primary education to children upto 14 years of age
was considered to be a ""fundamental right"" in Unnikrishnan''s case. Mr.K. Chandru, learned senior counsel also referred to the Act The Tamil
Nadu Compulsory Elementary Education Act, 1994 passed by the State Government. It was also pointed out that all these applications were on
behalf of the Managements who were prepared to start the Teachers'' Training Institutes without the aid of the State funds and thereby causing no
financial strains on the State economy. Some special circumstances were also mentioned in respect of some of the educational institutions to
suggest that the State Government had not bothered to consider the said circumstances. All the learned counsels strongly supported the impugned
judgment.
We have to take into consideration on these rival stands, to examine the correctness of the judgment of the learned single Judge.
The first contention which was forcefully argued by the learned Government Pleader was that the learned single Judge had erred in holding that
the State Government had rejected all the applications by way of a policy. It was tried to be urged that the State Government had actively
considered each application on the basis of its own merit. According to the learned Government Pleader, the observations made by the Division
Bench have been kept in mind while deciding the applications.
We have perused few orders passed by the State Government and we were also taken through the judgment of the learned single Judge and
the finding recorded therein. It cannot be denied that the reason given by the State Government while rejecting the applications for ''No Objection''
is absolutely common in case of practically all the institutions. A statement is made practically in each order that there are already 60000
unemployed trained teachers on the record of various employment exchanges and more particularly in the live list therein and, therefore, there are
already more teachers available than necessary and thereby there is no likelihood of the need of such teachers arising in future. It is repealed
practically in all the orders that because of the fact of the surplus number of teachers being available - and in some places there are said to be
32000 teachers - there was no necessity of any teacher and for that reason the opening of the new teachers'' training institutes was not necessary.
In some orders, it is stated that as on 31.12.1998 there were 28500 unemployed secondary grade teachers and the results of more than 10500
trained teachers were to be published as on 31.3.1999 and the rate of intake is only 3000 to 4000 per annum. There will be unemployment
problem for another thirty years in so far as these teachers are concerned. In some orders, the State Government mentioned that the child
population had reduced drastically in the State to the extent of 1500000 and therefore, in future, nearly 35000 trained teachers would be rendered
surplus considering the students-teacher ratio fixed at 1:40. When the learned Government Pleader was asked to show any order giving any
different reasons than the ones given, he was unable to point out any such order.
The learned single Judge in paragraphs 20 to 22 of his judgment took note of the contradictory stand taken by the State Government in these
orders. It is noted that the statistics given by the State Government was wavering from allegedly 60000 unemployed trained teachers, there was a
jump to 32000 and thereafter to 28500. The learned Judge also noted that the number of the available teacher training institutes was also not
available. The learned Judge also referred to an article in the daily ""The Hindu"" to suggest that the statistics given by the State Government was not
wholly correct. The learned Judge has also noted that though there were various guidelines issued by the council regarding the opening of such
teachers'' training institutes, the State Government had practically restricted it only to one of them, i.e., the availability of the teachers in the State.
We do not find any reason to differ from the first finding of the learned single Judge that the State Government had given practically ""common
reasons"" in respect of all the applications for refusing to give the . ""No Objection Certificate"" and it was almost a matter of policy. We have already
noted that the learned Government Pleader could not show us any individual approach in respect of the applications. The policy of the State
Government seems to be that since there were surplus number of trained teachers available in the State, there would be no necessity of opening
any new teachers'' training institute.
On this background it will be worthwhile to see whether such wholesale rejection by common reasons was justified. As a matter of fact, when
we see the scheme of the Act, it is clear that by this Act ""National Council"" was established for achieving planned and co-ordinated development
of the teacher education system throughout the country. Section 12 of the Act provides for the functioning of the Council while Section 14 speaks
of the recognition of the institutions offering course or training in teacher education. Section 14 provides that every institution offering or intending to
offer a course or training in teacher education has to make an application individually to the Regional Committee concerned and the Regional
Committee has to be satisfied about such institution having adequate financial resources, accommodation, library, qualified staff, laboratory, etc., it
is also required to be satisfied that the institution fulfills such other conditions required for proper functioning of the institution as may be determined
by regulations. It is only then that the Regional Committee may pass order granting recognition. Even a ""reasonable opportunity"" is required to be
given to the institution before rejecting the application of such institution for recognition. The order passed u/s 14 for recognition has also been
made available u/s 18. Similarly, u/s 15 of the Act, permission of the council is required for starting a new course or training by an institute which is
already a recognised institution. The council is required to examine even such proposals thoroughly regarding the viability of such new course or
training along with so many other factors like financial resources, available facilities, etc.
The reading of Section 14 and Section 15 of the Act will suggest that the matter of recognition of the institution has been treated to be on the
individualistic lines and not by way of a general policy. It will be seen that every institute seeking recognition or seeking permission for starting a
new course or training has to pass the acid test ""individually"" and indeed, there cannot be any generality regarding such matters. Every individual
institute has to answer the tests laid down by the Act.
u/s 32, the council has the power to make regulations which are not inconsistent with the provisions of the Act and the Rules made thereunder
and generally for carrying out the provisions of the Act. Sub-sections (e), (f), (g) and (h) provided that the regulation shall be as regards the form
and the manner in which the application for recognition is to be made, the conditions required for proper functioning of the institute and conditions
for granting recognition and the form and the manner in which an application for permission is to be made u/s 15 as also the conditions required for
proper conduct of new course or training and conditions for granting permission u/s 15. Accordingly, regulations seems to have been framed on
3.11.1995 and Regulation 4 therein provides for the starting of new course or training while Regulation 5 provides for the manner of making the
application. Clauses (e) and (f) of Regulation 5 require the production of a ""No Objection Certificate"" from the State for starting a teachers''
training institute. The very look of Regulations 4 and 5 would suggest that even these regulations are highly individualistic in nature in the sense that
these regulations along with Sections 14 and 15 have an individual-oriented approach in case of institutions in the sense that thereunder every new
institute has to be specifically considered as regards its merits and demerits. Regulations 4 and 5 are after all the further fallout of Secs. 14 and 15
and, therefore, they cannot have any different shades or dimensions from those sections which are highly individualistic in character. It will be seen
that Secs. 14 and 15 do not spell out any policy decision. In our opinion, Regulation 5, which is the direct fallout of those sections, also does not
intend to create a general policy as regards the grant of ""No Objection"" to the individual institutions. When all these provisions are closely seen, it is
clear that the State Government while granting ""No Objection Certificate"" has to individually consider each case and each application and examine
its necessity. It cannot say that by way of a general policy, it has decided not to allow any teachers'' training institute to be opened in the whole
State and, therefore, the ""No Objection Certificate"" would be refused in respect of all the individual institutions. Such approach is clearly incorrect.
In our opinion, the learned single Judge has correctly approached the question and has held that the State Government has disposed of all the
applications only by way of policy without considering the said applications individually We are in complete agreement with the learned Judge
when he says that the said applications should have been considered in the light of the guidelines for this purpose. The learned Judge has taken
troubles to quote all the guidelines in paragraph 19 of his judgment and we do not find it necessary to repeat the same. We only say that we are in
agreement with the learned Judge that the State Government should have decided the applications individually in the light of the aforementioned
guidelines.
The learned Government Pleader was at pains to point out that the Government has decided the matter only in the light of the guidelines laid
down by the National Council for Teacher Education. We are unable to accept this argument. What we find is that the State Government has
merely taken into consideration the first guideline in respect of the assessment of the need for the trained teachers. There also we must hasten to
add that the said need has also not been properly established atleast before the learned single Judge. Before us, the learned Government Pleader
tried to provide some data and pointed out therefrom that the Government had considered the number of qualified unemployed secondary grade
teachers in the live register of employment exchanges. We find from the table that the number of such teachers was 52991 as on 31.12.1995 and it
had dwindled to 36349 in the very next year; it went down to 32327 and presently, i.e., as on 31.12.2000, it was at 38980. Similarly, the number
of secondary grade teachers appointed in Government schools were stated to be as follows:
1996-97 1997-98 1998-99 1999-2000 2000-01
Elementary Wing 9887 8852 3799 6696 4311
High School Wing 3221 1846 2143 1479 2803
Total 12208 10698 5942 8175 7114
From the above table it appears that every year only in respect of Government schools, there are much more than 3000 or 4000 teachers
employed. We have found from the orders rejecting the applications for ""No Objection"" wherein the Government had insisted that it could
accommodate only 3000 or 4000 teachers. If this statistics is only about the Government schools, we arc certain that many more teachers could
be accommodated in the private schools which are also in abundance in the State of Tamil Nadu. A chart was shown regarding the number of
schools in existence which is as under:
NUMBER OF SCHOOLS FROM 1995-96 TO 2001-2002
1995-96 1996-97 1997-98 1998-99 1999-2000 2000-01
Elementary Schools 30471 30619 30796 30844 31502 31142
Middle School 5549 5503 5473 5538 5640 5703
High School 3419 3574 3765 4208 4551 4500
Higher Secondary Schools 2490 2734 2975 3149 3292 3439
Total 41929 42430 43009 43749 44535 44784
We only say that as compared to 41929 schools in 1995, it is pity that there should be only an increase of less than 3000 schools in five long
years. We would like to point that ""elementary education"" is almost in the nature of ""Fundamental Right"" as recognised in Unnikrishnan case. In that
view, we have no doubts that the number of schools should increase every year and more particularly elementary and middle schools. If that is so,
it cannot be said that there would be no necessity of the teachers for teaching in such schools. The State Government cannot take the stance that
there should be no new schools and, therefore, there should be no teachers. Such a stance would be disastrous. However, that is for the State
Government to decide.
Learned counsels appearing on behalf of the respondents also drew our attention to various factors which the State Government was bound to
take into consideration. It was pointed out that there has to be a proper assessment for the establishment of teachers'' training institute keeping in
mind the starting of the additional primary and middle schools in the distant areas, hilly areas and rural areas. It is also pointed out by the learned
counsel that by the very scheme of the Act, it was obvious that though the National Council and the Regional Council were to consider the
question of recognition, the State Government had also a major role to play and it is only for that reason that the regulations required the State
Government to record their ''No Objection'' to start a particular institution. It is obvious that the State Government would be required to take all
these factors into consideration.
Much was said in respect of some inexplicable decisions of the State Government. The learned counsels for the respondents criticised the
general policy of the State Government not to open any new teachers'' training institute by citing various circumstances such as that by G.O.No.
111 dated 7.8.2001, the State Government had increased the seats in the teachers'' training institutes by 50%. This was obviously in case of the
minority institutions. A question was asked therefore that if the State Government was increasing the seats how could it justify its stand that it would
not permit opening of any new institution. It was also pointed out that in some individual cases, there was a dire need for the teachers'' training
institutions at that particular places. The learned senior counsel Mr.K. Chandru stressed such a need in W.P.No. 13170 of 1999 pointing out that
there was only one teachers'' training institute in the place where the permission was sought. It was pointed out that none of these reasons were
considered. The learned counsel also argued with reference to Article 45 of the Constitution of India and stressed the need for more schools. This
argument was also stressed by the leaned senior counsel Mr.Vijayan who also suggested that in view of the mandate of Artical 45 of the
Constitution of India and the law laid down by the Apex Court in Unnikrishnan case, the State Government was bound to open many more
primary, elementary and middle schools to spread education and to make education available to every child upto 14 years. In this behalf, the
learned counsel also invited our attention to an enactment passed by the State of Tamil Nadu, viz., ""The Tamil Nadu Compulsory Elementary
Education Act, 1994 (T.N.Act 33 of 1995) in which the education has been made compulsory for each child and depriving a child of education or
not sending a child to take education has been recognised as an offence. The learned counsel therefore stressed that there had to be spread of
education by providing more and more elementary and middle schools and for that purpose, there had to be made available adequate number of
trained teachers and the State Government could not simply shut their eyes for the future need of the trained teachers. In this behalf, it was also
pointed out that the guidelines provide that while assessing the need, the need for the future fifteen years has to be taken into consideration. All
these arguments were made only to point out and assail the policy reflected in the impugned orders before the learned single Judge which
suggested that the State Government had decided not to allow any teachers'' training institute to be opened in the State. It was also stressed that all
these institutions were to cause absolutely no expenditure to the State Government as they were self-financing institutions.
We have deliberately quoted all these arguments in order to point out the various angles which the State Government would have to take into
consideration while dealing with the applications. In our opinion, individually each application will have to be assessed in the light of not only the
guidelines provided by the National Council but also in view of the dire need to spread atleast the elementary and middle school education, making
it available to each child in the State of Tamil Nadu. In this behalf, we endorse the view expressed by the learned single Judge.
Many arguments were directed relying on few reported decisions that such policy in respect of the teacher training institutes was not a sound
policy and could not be countenanced. More particularly, we may make mention of only two cases, viz., Andhra Kesari Education Society Vs.
Government of Andhra Pradesh and Others, and The Secretary to Government Education Deptt., Govt. of A.P., Hyderabad and another Vs.
Society for St. Ann''s Mehdipatnam, Hyderabad and another, . We will not go into that subject because the teamed Judge has left it to the State
Government to decide all the applications afresh. We do not wish to limit or control the discretion of the State Government because there may be a
case where the teachers'' training institution may be absolutely unnecessary considering the existence of the other institutions, the element of unfair
competition or even because of the institution not enjoying proper reputation. There would be many individual factors even besides the guidelines.
We would only say that we are in complete agreement with the learned single Judge in his directions to decide every application afresh in the light
of the observations made by him. We also add that while deciding these applications, the observations made in this judgment shall also be taken
into consideration. We, therefore, choose to dismiss all the appeals filed by the State Government and allow the writ petitions filed by the institutes
except the following.
Mr.Paul Vasanthakumar, learned counsel points out that W.A.No. 960 of 1999 pertains to a judgment passed in W.P.No. 10300 of 1999
where the writ petition was dismissed on the ground of laches. We feel in the circumstances, the writ appeal would be liable to be allowed and the
petitioner would be given an opportunity of the consideration of its application for starting a teachers'' training institute. We would, therefore, allow
that writ appeal.
So also, Mr.Subba Reddy, learned counsel pointed out that W.A.No. 538 of 2001 is filed against the order passed by the learned single
Judge (D. Murugesan, J.) in W.P.No. 15494 of 2000 wherein the learned Judge has taken a different view upholding the Government''s
contentions. We have already pointed out that the view that the Government could take a policy decision and was justified in rejecting the
application on that ground is not correct. We are, therefore, unable to agree with the judgment of the learned single Judge and we would choose to
set it aside by allowing this appeal.
In the result, all the writ appeals filed by the State Government are dismissed. W.A.Nos. 960 of 1999 and 538 of 2001 are allowed. All the
writ petitions mentioned above are also allowed to the extent that the State Government shall now individually consider each application filed by
the parties for the purpose of giving ""No Objection Certificate"" for starting a teachers'' training institute in the light of the observations made in our
judgment, in the judgment of the learned single Judge as also the earlier Division Bench judgment of this Court in Emmanuel Teachers Training
Institute case, 1997 WLR 129. It will be advisable that such exercise is completed within eight weeks from the date the order reaches the State
Government. In that, opportunity of being heard should be given to the parties who desire such opportunity.
Connected C.M.Ps and W.M.Ps are closed.