All these petitions involve common questions on law and facts. Hence, they are disposed of by this common judgment. 1. The petitioners herein have challenged the decision taken in the 163rd Meeting of the Western Regional Committee of National Council for Teacher Education (hereinafter referred to as “the WRC” for short) held at Bhopal from 22nd to 24th May, 2012 whereby, the decision to de-affiliate the B.Ed / M.Ed colleges affiliated with Shreemati Nathibai Damodar Thackersey Women's University (hereinafter referred to as “the University” for short) with effect from Academic Year 2012-2013 taken in the 153rd Meeting of respondent-WRC held from 28th to 30th July, 2011, was confirmed and which was communicated to the petitioners and other Colleges vide communication dated 01.06.2012.
2. The Parliament enacted The National Council For Teacher Education Act, 1993 (hereinafter referred to as “the NCTE Act” for short) for the purpose of achieving planned and co-ordinated development of teacher education system throughout the country and for matters connected therewith. According to Section 2(d) of the Act, “examining body” means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications. Section 14 of the Act pertains to recognition of teacher education institutions. For the purpose of the present petitions, Sub-clauses – 4 & 6 of Section 14 of the Act are relevant and hence, they are reproduced here under;
“14. Recognition of Institutions offering course or training in teacher education :
(1) to (3) .....
(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.
(5) .....
(6) Every examining body shall, on receipt of the order under sub-section (4),
(a) grant affiliation to the institution, where recognition has been granted; or
(b) cancel the affiliation of the institution, where recognition has been refused.”
3. In exercise of powers u/s.14(6) of the Act, the respondent-WRC granted 'recognition' to different Universities to impart teacher education. It is clear from the above provision that once 'recognition' is granted or cancelled by respondent-WRC, the 'examining body' concerned shall grant or cancel 'affiliation' of the institution, as the case may be. Therefore, grant or cancellation of 'affiliation ' is not a discretionary decision vested with the 'examining body' but, it essentially follows the decision taken by the respondent-WRC under Section 14(6) of the Act. Once a decision is taken by respondent-WRC, either to grant or cancel the 'affiliation', the 'examining body' concerned has to simply follow such decision and The NCTE Act expressly bars the 'examining body' from exercising jurisdiction in matters regarding 'affiliation'.
4. Shreemati Nathibai Damodar Thackersey Women's University is a University governed under the provisions of The Maharashtra Universities Act, 1994. Chapter XIII of the said Act pertains to “Special Provisions for Shreemati Nathibai Damodar Thackersey Women's University”. For the purpose of the present petitions, sub-clauses (2), (5) & (6) of Section 105 are relevant, which reads thus;
“105.(1) ....
(2) The territorial limits, within which the powers conferred upon the University by this Act shall be exercised, shall comprise the State of Maharashtra :
Provided that, the university may, subject to such conditions and restrictions as it and the State Government may think fit to impose, admit any women's educational institution in any other territory to the privileges of the university, with the approval of the Government concerned.
(3) & (4) .....
(5) The university may, in the interest of women's education, start or conduct a college or research institution in any territory outside the State of Maharashtra, with the approval of the Government concerned.
(6) No educational institution affiliated to or recognized by the university shall be associated in any way with or seek admission to any privileges of, any other university established by law, except with the permission of the university and the State Government.”
(emphasis supplied)
5. Section 105(5) of The Maharashtra Universities Act, 1994 specifically provides that the respondent-
University may start or conduct women's college or institution outside the State of Maharashtra with the approval of the State Government concerned.
6. It is in light of the above provision that several colleges / institutions established in the State of Gujarat and affiliated with the respondent-University had sought and were granted permission by the Government of Gujarat to start B.Ed courses on certain terms and conditions.
7. However, in the 153rd Meeting of respondent-WRC held at Bhopal during 28th to 30th July, 2011, a decision was taken to de-affiliate the B.Ed / M.Ed colleges, operating in the State of Gujarat and affiliated with the respondent-University, with effect from 2012-2013 and also not to admit students in any course.
8. Further deliberations took place in the 159th Meeting of the respondent-WRC held during 07th to 09th February, 2012 and it was decided to request the respondent-WRC to re-consider the case of the respondent-University for retainment of affiliation of 26 institutions with the respondent-University for the reason that the said 26 institutions had been granted N.O.C. by the Government of Gujarat. In pursuance of the aforesaid decision taken by the respondent-WRC in its 159th Meeting, the respondent-University decided to continue affiliation of those colleges which had obtained N.O.C. from the Government of Gujarat, as required u/s.105(5) of The Maharashtra Universities Act, 1994 subject to their fulfilling requisite conditions for continuation of affiliation.
9. The respondent-WRC, thereafter, addressed a letter to the Member Secretary, NCTE, New Delhi dated 27th - 28th February, 2012 seeking approval of retainment of affiliation of 26 institutions with the respondent- University and in response, the respondent-WRC was instructed to take appropriate decision in the matter, as per the provisions of the Act.
10. In the 163rd Meeting of the respondent-WRC held during 22nd to 24th May, 2012, the issue was re- considered and a decision was taken to affirm the decision regarding de-affiliation of Colleges situated in the State of Gujarat and affiliated with the respondent- University, taken in the 153rd Meeting of respondent- WRC held during 28th to 30th July, 2011. The respondent- University was informed about the said decision, vide the impugned communication.
11. Being aggrieved by the above decision of the respondents, the petitioners have preferred the present petitions.
12. Mr. S.I. Nanavati learned senior counsel appearing with Mr. Saurin Mehta for the petitioner submitted that the respondent-WRC has no jurisdiction to de-affiliate any Institution affiliated with the respondent-University.
12.1 Learned senior counsel submitted that the provisions of the Act does not empower the respondent- WRC to take any such decision since the power to grant or cancel 'affiliation' is with the “examining body” and not with the respondent-WRC.
12.2 Learned senior counsel submitted that after the enactment of the NCTE Act, the respondent-WRC functions as the “recognising authority” whereas, the “examining body”, i.e. the respondent-University, functions as the “affiliating authority”. Therefore, the decision taken by the respondent-WRC in its 163rd Meeting held during 22nd to 24th May, 2012 and communicated to the respondent-University, vide impugned communication, deserves to be quashed and set aside.
12.3 Learned senior counsel further submitted that the decision taken by respondent-WRC in its 153rd Meeting held during 28th to 30th July, 2011 and confirmed in its 163rd Meeting held during 22nd to 24th May, 2012 is bad in law as the said decision is contrary to the provisions of the NCTE Act.
12.4 Learned senior counsel submitted that in pursuance of the decision taken by respondent-WRC in its 153rd Meeting, the respondent-University had passed a Resolution to continue affiliation of those institutions, which had obtained No Objection Certificate from the Government of Gujarat and had been granted recognition by the respondent-WRC for conducting the Courses. However, in the 159th Meeting held during 07th to 09th February, 2012, the respondent-WRC carried out deliberations on the issue whether affiliation of 26 institutions, affiliated with the respondent-University, may be approved or not and ultimately, the impugned decision was taken to de-affiliate the 26 institutions, which is contrary to the provisions of the NCTE Act.
12.5 Learned senior counsel Mr. Nanavati further submitted that the impugned order dated 01.06.2012 is a non-speaking order since no reasons have been assigned. He submitted that affiliation with University is one type of a contract, which cannot be terminated unilaterally, without affording any opportunity of hearing. Therefore, the impugned decision is also violative of the principles of natural justice.
12.6 Mr. Nanavati lastly submitted that the contention regarding applicability of the provisions of The Maharashtra Universities Act, 1994, raised by the respondent-WRC in their affidavit-in-reply, do not find place in the Resolutions passed by the respondent-WRC. In their Resolutions, it was never the case of respondent-WRC that the provisions of The Maharashtra Universities Act, 1994 would not operate in the State of Gujarat. He, therefore, submitted that the impugned decision of respondent-WRC is illegal and without jurisdiction and hence, it deserves to be quashed and set aside.
13. In support of his submissions, Mr. Nanavati placed reliance upon the following decisions;
I. In Delhi Development Authority, N.D. and another v. Joint Action Committee, Allottee of SFS Flats & Others, 2008 (2) SCC 672, the Apex Court in Paras – 64 & 65 observed as under;
“64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds :
(a) if it is unconstitutional;
(b) if it is de hors the provisions of the Act and the Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.”
II. In Chairman, Bhartia Education Society and another v. State of Himachal Pradesh and others, (2011) 4 SCC 527, the Apex Court in Paras – 19 & 24 observed as under;
“19. The purpose of “recognition” and “affiliation” is different. In the context of the NCTE Act, “affiliation” enables and permits an institution to send its students to participate in the public examinations conducted by the examining body and secure the qualification in the nature of degrees, diplomas, certificates. On the other hand, “recognition” is the licence to the institution to offer a course or training in teacher education. Prior to the NCTE Act, in the absence of an apex body to plan and coordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of “recognition” were largely exercised by the State Government and universities / boards. After the enactment of the NCTE Act, the functions of NCTE as “recognising authority” and the examining bodies as “affiliating authorities” became crystallised, though their functions overlap on several issues. The NCTE Act recognises the role of examining bodies in their sphere of activity.
22. Sub-section (6) of Section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources, accommodation, library, qualified staff or laboratory required for proper functioning of the institution. But this does not mean that the examining body cannot require compliance with its own requirements in regard to eligibility of candidates for admissions to courses or manner of admission of students or other areas falling within the sphere of the State Government and/or the examining body. Even the order of recognition dated 17.07.2000 issued by NCTE specifically contemplates the need for the institution to comply with and fulfill the requirement of the affiliating body and the State Government, in addition to the conditions of NCTE.
24. The examining body can therefore impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The State Government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of NCTE. Sub-section (6) of Section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber-stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course or training in teacher education or admit students to such course or training. Be that as it may.”
14. Learned counsel Mr. H.A. Dave, Mr. B.P. Gupta and Mr. Pratik Jasani appearing on behalf of the petitioners in other petitions adopted the submissions advanced by learned senior counsel Mr. S.I. Nanavati. No other submission is advanced on behalf of the petitioners.
15. Mr. P.S. Champaneri learned Asst. Solicitor General appearing on behalf of respondent-WRC has taken me through the Objects and Reasons of the NCTE Act. He submitted that the provisions of Sections 12 to 17 of the Act have a broad meaning and in exercise of powers under the said Act, the respondent-WRC is authorized to take the impugned decision.
15.1 Learned counsel Mr. Champaneri submitted that under the provisions of The Maharashtra Universities Act, 1994, the respondent-University has jurisdiction to affiliate any institute within the State of Maharashtra only. He has drawn attention of the Court to Section- 6(1) of the said Act, which reads as under;
“6(1). The territorial limits, within which the powers conferred upon the university by this Act shall be exercised, shall comprise the whole of the university area as specified against the name of such university in the Schedule :
Provided that, the benefit of distance- education courses, correspondence courses, open university courses or external degree courses of any university may, with the prior permission of the State Government, extend and cover the entire area of the State outside the university area.”
15.2 Mr. Champaneri has also taken me through the provisions of Section-105 of the said Act, which has been reproduced in the earlier part of this judgment. He also took me through Item No.6 of Part-I of the Schedule appended to the said Act wherein, the area of operation of the respondent-University has been shown to be the State of Maharashtra. He, therefore, submitted that the respondent-University could affiliate institutions situated within the State of Maharashtra only and not outside Maharashtra.
16. In support of his submissions, Mr. Champaneri has placed reliance upon the following decisions;
I. In Prof. Yashpal and Another v. State of Chattisgarh and Others, (2005) 5 SCC 420, the Apex Court in Paras – 54, 55, 63 & 64 observed thus;
“54. In exercise of power conferred by Section 26 of the UGC Act, the University Grants Commission has made the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003. The Regulations have been made with the object of providing for a regulatory mechanism for establishment and operation of private Universities and for safeguarding the interests of the student community with adequate emphasis on the quality of education and to avoid commercialization of higher education and also to maintain standards of teaching, research and examination. Regulation 1.2 provides that the same shall apply to every private University established by or incorporated under a State Act, before or after the commencement of these Regulations. Regulation 1.5 provides that any private University which has started functioning before the commencement of these Regulations shall ensure adherence to these Regulations within a period of three months from the notification thereof and failure to comply with this requirement shall render any degree/diploma awarded by a private University as unspecified in terms of Section 22 (3) of the UGC Act and shall invite penalty under Section 24 of the said Act. Regulations 3.1, 3.2, 3.6 and 3.7 are important and they are being reproduced below :
3.1 Each private University shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956, as amended from time to time.
3.2 A private university shall be a unitary university having adequate facilities for teaching, research, examination and extension services.
3.6 The programmes of study leading to a degree and/or a post-graduate degree/diploma offered by a private university shall conform to the relevant regulations/norms of the UGC or the concerned statutory body as amended from time to time.
3.7 A private university shall provide all the relevant information relating to the first degree and post-graduate degree/diploma programme(s) including the curriculum structure, contents , teaching and learning process, examination and evaluation system and the eligibility criteria for admission of students, to the UGC on a proforma prescribed by the UGC prior to starting of these programmes.
55. Regulation 3.3 puts restriction on establishment of a University outside the State. Regulation 5 provides consequences of violation and lays down that if the Commission is satisfied that a private University has, even after getting an opportunity to do so, failed to comply with the provisions of any of the Regulations, the Commission may pass orders prohibiting the private University from offering any course for award of the degree or diploma. Similarly, the UGC is empowered to take action against a private University awarding first degree and/or a post-graduate degree/diploma, which is not specified by the UGC and any private University continuing such programme and awarding unspecified degree shall be liable for penalty under Section 24 of the UGC Act.
63. There is hardly any merit in the submission raised. The impugned Act which enables only a proposal of a sponsoring body to be notified as a University is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide high level of teaching and other facilities like well equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not Universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed University by the Central Government in accordance with Section 3 of UGC Act or they can be affiliated to the already existing Universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the learned counsel as it enables a proposal alone being notified as a University.
64. As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall cease to exist. Shri Amarendra Sharan, learned Additional Solicitor General has submitted that the UGC had conducted an inquiry and it was found that most of the Universities were non- existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the Universities have seriously disputed this fact and have submitted that the Universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law.”
II. In State of Maharashtra v. Sant Dhyaneshwar Shikshan Shastra Mahavidyalaya and others, (2006) 9 SCC 01 and more particularly, on the observations made in Paras – 63, 68, 74, 75 & 79, which reads thus;
“63. In the instant case, admittedly, Parliament has enacted 1993 Act, which 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 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 fully 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 consideration'.
68. 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-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned.
74. 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 '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 to a University to consider the local conditions 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.
75. The decision relied on by Mr. T.R. Andhyarujina in Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra & Others, (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 allow new D.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-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 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 refusing permission under the 'policy consideration'. The contention of the State Government, therefore, has to be negatived.
79. 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 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. To that extent the provisions of Section 82 and 83 are inconsistent with the provisions of NCTE Act and are null and void".?
III. In Ambaji Physiotheraphy College managed by Ambaji Education v. State of Gujarat & others, 2011 (3) G.L.H. 560 and more particularly, in Paras – 54, 60, 67 & 68, it has been observed thus;
“54. The review of the various judgments which we have quoted above, more particularly, the principle of “extra-territorial operation” and “territorial nexus” leaves us with no manner of doubt that by virtue of a proviso to Sec. 105(2), the provisions of the Maharashtra Universities Act, 1994 could not have been made applicable beyond the limits of the State of Maharashtra even with the permission of the concerned State Government. There is also no doubt in our mind on the issue that there is no nexus at all sought to be achieved with the object of the Act in making the Act of 1994 extra-territorial in operation.
60. We do not want to multiply the case-law on this issue any further since the Supreme Court has time and again sounded a note of caution that without any specific challenge to the constitutional validity of a particular provision and in the absence of pleading in this regard, the Court on its own suo motu may not declare a provision of law unconstitutional or ultra vires.
67. In view of the discussion as made above, as the Shreemati Nathibai Damodar Thackersey Women's University has no control over the colleges within the State of Gujarat after being affiliated, we are of the view that the State Government should not grant permission to such colleges to get affiliated with Shreemathi Nathibai Damodar Thackersey Women's University and the Court should refuse to issue high prerogative writ like a writ of mandamus in favour of the college.
68. In this view of the matter, we hold that the petitioners have no legal right to pray that the State Government is legally bound to grant 'No Objection Certificate' as required for the purpose of seeking affiliation with Shreemati Nathibai Damodar Thackersey Women's University. We hold that the State Government has no legal duty to grant such 'No Objection Certificate' on mere asking by the respective colleges and more so when Shreemati Nathibai Damodar Thackersey Women's University has no control over the colleges affiliated within the State of Gujarat.”
IV. In Adarsh Shiksha Mahavidyalaya and Others v. Subhash Rahangdale and Others, (2012) 2 SCC 425, the Apex Court in Para – 87 observed thus;
“87. As a sequel to the above discussion, we hold that the impugned orders do not suffer from any legal infirmity warranting interference by this Court. We also reiterate that :
(I) to (x) .....
(xi) While granting affiliation, the examining body shall be free to demand rigorous compliance with the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines / norms which may have been laid down by the examining body concerned.
(xii) to (xiv) .....
(xv) The students admitted by unrecognized institution and institutions which are not affiliated to any examining body are not entitled to appear in the examination conducted by the examining body or any other authorised agency.”
(xvi) to (xviii) .....
17. Mr. Y.C. Contractor learned counsel appearing on behalf of the respondent-Corporation assailed the impugned decision taken by respondent-WRC. By indirectly supporting the case of the petitioners, he submitted that the respondent-WRC does not have the authority or jurisdiction under the provisions of the NCTE Act to de-affiliate any institution, as such power is vested with the respondent-University alone.
17.1 Learned counsel Mr. Contractor submitted that the respondent-University is a women's University and is in existence since last 94 years. It has a remarkable record in the field of women education.
17.2 Learned counsel Mr. Contractor further submitted that before passing the impugned order, the respondent-WRC ought to have granted an opportunity of hearing to the respondent-University. Therefore, the impugned order is in gross violation of the principles of natural justice.
18. Respondent no.1 herein is the Western Regional Committee of National Council For Teacher Education established under Section 3(3) of the NCTE Act. The Regional Committee is mainly entrusted with the duty of grant of recognition to institution/s offering or intending to offer a course or training in teacher education. Before granting recognition, the Regional Committee examines all particulars of the institution concerned, as it may consider necessary and thereafter, may pass an order, either granting or refusing 'recognition' to such institution.
19. In the background of the aforesaid position of law, it would be apposite to consider the facts of the present case. It appears from the record that in the 153rd Meeting of the Western Regional Committee, respondent no.1 herein, held during 28th to 30th July, 2011, a decision was taken to de-affiliate 39 institutions, affiliated with the respondent-University and operating in the State of Gujarat with effect from the Academic Year 2012-2013. The respondent- Corporation was informed about the said decision of respondent-WRC vide communication dated 12.08.2011.
20. In pursuance of the aforesaid decision of respondent-WRC taken in its 153rd Meeting, the respondent-University addressed a communication dated 26.12.2011 to respondent-WRC requesting to grant permission to continue affiliation of 26 institutions operating in the State of Gujarat on the ground that the said 26 institutions have been granted “approval” by the Government of Gujarat, as required u/s.105(5) of the Act. The respondent-University had also informed that it had complied with the decision of respondent- WRC and had de-affiliated 39 institutions out of 65 institutions operating in the State of Gujarat and affiliated with the respondent-University. The petitioners herein were granted “approval” by the Government of Gujarat and have been issued “No Objection Certificate” subject to compliance of certain terms and conditions prescribed therein.
21. The said issue came up for consideration of respondent-WRC in the 159th Meeting held during 07th to 09th February, 2012. After due deliberation, the request made by the respondent-University was accepted and it was resolved to grant continuity of affiliation to the 26 institutions, which have been issued the “No Objection Certificate” by the Government of Gujarat. Thereafter, vide communication dated 27th/28th February, 2012 addressed to NCTE, New Delhi, the respondent-WRC sought approval for retainment of affiliation of the 26 institutions operating in the State of Gujarat and affiliated with the respondent-University.
22. In the meantime, in pursuance of the decision taken by respondent-WRC in its 159th Meeting, the respondent-University informed the concerned institutions, whose recognition has been continued by NCTE and who have been granted “approval” by the Government of Gujarat, that their affiliation for the Academic Year 2012-2013 has been continued. By acknowledging the same, the concerned institutions made payment of Affiliation Fees to the respondent- University and also fulfilled the requisite formalities for continuity of affiliation.
23. In response to the communication dated 27th/28th February, 2012, the NCTE, New Delhi informed respondent-WRC to decide the issue regarding continuity of affiliation in accordance with the provisions of the Act and Rules framed thereunder, vide communication dated 22.03.2012.
24. However, in the 163rd Meeting of respondent-WRC held during 22nd to 24th May, 2012, a complete U-Turn was made and it was decided to follow the decision taken in the 153rd Meeting held during 28th to 30th July, 2011 meaning thereby, that all the 65 institutions located in the State of Gujarat, including the 26 institutions that have been issued the “No Objection Certificate” by the Government of Gujarat, stood de- affiliated with effect from the Academic Year 2012- 2013.
25. Having heard the respective parties, the following points have arose for consideration of this Court;
(i) Whether a perpetuating wrong can be made good by another wrong ?
(ii) Whether the respondent-WRC has jurisdiction to take the impugned decision ?
26. So far as the first aspect is concerned, it may be noted that in the 159th Meeting of respondent-WRC held during 07th to 09th February, 2012, a decision was taken to retain affiliation of 26 institutions with the respondent-University since they had been granted “approval” by the Government of Gujarat, in accordance with the provision of Section 105 of The Maharashtra Universities Act, 1994. Once such decision was taken in the 159th Meeting, a decision to restore the conclusion arrived at in the 153th Meeting, could not have been taken in the subsequent 163rd Meeting, without setting aside or modifying the decision taken in the 159th Meeting, more so when in the 153rd Meeting, the original decision was to withdraw the affiliation of only those 39 institutions, which were not granted “approval” by the Government of Gujarat and not of those 26 institutions, which were granted “approval” by the Government of Gujarat.
26.1 Learned counsel appearing on behalf of respondent-WRC was not able to show the source of power, which authorized the respondent-WRC to take a “U-Turn” in the 163rd Meeting. In my opinion, the respondent-WRC also could not defend their action by citing it as a “policy decision” in view of the decision rendered in Delhi Development Authority's case (supra).
26.2 Section 3(2) of The NCTE Act provides that “The Council shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to contract and shall, by the said name, sue and be sued”. The above proviso leaves no doubt in my mind that the relationship of the Council with the “examining body” / institution is contractual in nature. The respondent-WRC cannot unilaterally terminate the contract or change the terms and conditions of contract in such manner which may put the “examining body” or the institutions affiliated to the “examining body” in a disadvantageous position.
26.3 The impugned unilateral decision of respondent- WRC taken in its 163rd Meeting is detrimental to the interests of the institutions concerned and the career of students at large, who are girl students, particularly, at a time when female empowerment is being given a top priority at all levels of Government. If the respondent- WRC was of the opinion that affiliation of 26 institutions is required to be cancelled, then it ought to have afforded reasonable opportunity to the other side before taking such decision. The respondent-WRC ought not to have taken the unilateral decision of de-affiliating the institutions more so when the impugned unilateral decision is without any authority of law and is void ab initio.
27. The next aspect is whether the impugned decision of respondent-WRC is bad in law for want of jurisdiction. The provisions of The NCTE Act does not authorize the respondent-WRC to affiliate, de-affiliate, retain or cancel 'affiliation' of any institution. The respondent-WRC is only authorized to grant or refused 'recognition' to an institution. Once an order is passed by the Regional Committee, either granting or refusing recognition, the University concerned, under sub-Section (6) of Section 14 of the Act, has to grant 'affiliation' to the institution where 'recognition' has been granted or has to cancel 'affiliation' where 'recognition' has been refused, as the case may be.
27.1 Except the power to grant or cancel 'recognition', the Act does not vest the Regional Committee with the power to grant or cancel 'affiliation'. The authority to grant or cancel 'affiliation' is vested with the 'examining body' concerned and not with the Regional Committee. Once the Regional Committee passes an order of either granting or refusing 'recognition' u/s.14(3) of the Act, the 'examining body' concerned has to simply follow the consequential action prescribed in Section 14(6) of the Act by either granting 'affiliation' or cancelling 'affiliation'.
27.2 In other words, 'affiliation' of an institution is co- related with the order that may be passed by the Regional Committee u/s.14(3) of the Act. If the Regional Committee grants 'recognition' to an institution u/s.14(3)(a) of the Act, then the 'examining body'
concerned has to grant 'affiliation' to such institution and the 'examining body' is not vested with any discretionary power to decide whether or not 'affiliation' should be granted.
27.3 Similarly, if the Regional Committee refuses to grant 'recognition' to an institution u/s.14(3)(b) of the Act, then the 'examining body' has to cancel 'affiliation' of such institution. Thus, it can be said that 'recognition' and 'affiliation' are co-related. If an institution is granted 'recognition' by the Regional Committee, then the 'examining body' concerned has to grant it 'affiliation' and vice-versa. Thus, according to Section 14(6) of the Act, the power to grant or refuse 'affiliation' is not with the Regional Committee but, with the 'examining body' concerned. Therefore, the action of respondent-WRC of de-affiliating the institutions is illegal and without jurisdiction. Moreover, the respondent-WRC has not cancelled 'recognition' of the respondent-University and therefore, power u/s.14(6) of the NCTE Act could not be invoked by the respondent-WRC in view of the principle laid down by the Apex Court in Chairman, Bhartia Education Society's case (supra).
28. Learned Asst. Solicitor General appearing on behalf of respondent-WRC has placed heavy reliance upon the decision rendered by the Division Bench of this Court in the case of Ambaji Phsiotherapy College (supra). In that case, the Division Bench held that “extra-territorial operation” of a State Act can be judged on the basis of the “doctrine of territorial nexus”. It was also held that by virtue of the proviso to Sec.105(2) of the said Act, the provisions of the Act could not have been made applicable, beyond the limits of the State of Maharashtra, even with the permission of the concerned State Government.
29. However, the Division Bench of this Court has not declared the provision of Section 105(2) of the Act, empowering Shreemati Nathibai Damodar Thackersey Women's University to approve colleges situated within the State of Gujarat, ultra vires Article 245(1) of the Constitution of India. Under such circumstances, the provision of Section 105(2) of The Maharashtra Universities Act, 1994 still govern the field and is intra vires.
30. At this stage, a reference to the provision of Section 105(5) of said Act is apposite. It reads thus :
“105(5). The University may, in the interest of women's education, start or conduct a college or research institution in any territory outside the State of Maharashtra, with the approval of the Government concerned”.
31. In the instant case, the petitioner-colleges have been granted “approval” by the Government of Gujarat subject to compliance of certain terms and conditions, which the petitioners have duly complied. Now, when the provision of Section 105(2) of the said Act is intra vires and the petitioner-colleges have been granted “approval” by the Government of Gujarat, I am of the view that the respondent-University could continue affiliation of the petitioner-colleges for the current Academic Year. The Maharashtra Universities Act, 1994 contains “Special Provisions” for the respondent- University in the form of Chapter XIII. The said provisions have been framed keeping in mind the larger interest of Women's education in the country. For necessary safeguard, the Act also provides that the respondent-University has to obtain “approval” of the State Government concerned and No Objection Certificate from the local University concerned.
32. This Court is conscious of the fact that the Schedule appended to the Act prescribes the area of operation of the respondent-University to be the State of Maharashtra. However, considering the object behind framing of “Special Provisions” for the respondent- University, which is social empowerment of Women, the provision of Section 105(2) of the said Act has to be read in a broader perspective and I, accordingly, come to the conclusion that 'affiliation' granted to the petitioner-colleges, under the provision of Section 105(2) of the said Act, is in consonance with the provisions of the NCTE Act since the purpose of “recognition” and “affiliation” is different. As discussed herein above, in the context of the NCTE Act, “affiliation” enables and permits an institution to send its students to participate in the public examinations conducted by the examining body and secure qualification in the nature of degrees, diplomas, certificates. On the other hand, “recognition” is the licence to the institution to offer a course or training in teacher education. The NCTE Act recognises the role of examining bodies in their sphere of activity.
33. It is pertinent to note that the reasons given in the Affidavit-in-reply filed on behalf of respondent-WRC are conspicuously missing in the Resolutions passed by the respondent-WRC. A discretionary power cannot be exercised in an arbitrary manner. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor and the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. (See Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, Commissioner of Police v. Gordhandas Bhanji AIR 1952 SC 16, Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627 and R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430). The impugned decision of respondent-WRC is in gross violation of the principles of natural justice since no opportunity of hearing was given to the respondent-University to present their case. The impugned decision was detrimental to the interests of the respondent-University as also the career of students studying in colleges affiliated with the respondent-University. Therefore, before taking the impugned decision, the respondent-WRC ought to have followed the cardinal principle of natural justice.
34. Further, the principle of estoppel would also come into play since the respondent-WRC is prevented from taking a decision that is contrary to the decision taken in its earlier Meeting. When the decision taken in the 153rd Meeting was substantially diluted in the 159th Meeting, the respondent-WRC, in the 163rd Meeting, was estopped from taking a decision to restore the decision of 153rd Meeting, without setting aside the decision taken in the 159th Meeting.
35. The respondent-University is engaged in the field of women education. The Maharashtra Universities Act, 1994 has made “Special Provisions” for the respondent- University keeping in mind the larger interest of women education in the country. In these days of co-education, the respondent-University is playing a remarkable role, by concentrating on women education only, since it would help in the overall development of society. The respondent-University has been operating in the State of Gujarat since last several years and no prejudice has been caused to any local University in Gujarat on account of the existence of the respondent-University in the State of Gujarat.
36. Moreover, one of the conditions precedent for the grant of “approval” by the Government of Gujarat was to obtain No Objection Certificate from the local University, which the respondent-University has been duly granted and there are no complaints against the respondent-University in the matter of grant of affiliation. The respondent-University has been functioning in the State of Gujarat strictly in accordance with the terms and conditions of “No Objection Certificate” granted by the Government of Gujarat and also in accordance with the provisions of the NCTE Act and therefore, its affiliation deserves to be continued.
37. In view of the above discussion, I am of the considered opinion that the decision of respondent-WRC taken in the 163rd Meeting and communicated to the petitioner-colleges vide impugned communication / order dated 01.06.2012 is illegal, bad in law and without jurisdiction and hence, the same deserves to be quashed and set aside.
38. For the foregoing reasons, the petitions are allowed. The impugned decision taken by respondent- WRC in the 163rd Meeting, in which the decision taken in the 153rd Meeting was confirmed, is quashed and set aside. Further, the action of “de-affiliation” of the petitioner-colleges from the respondent-University, with effect from the Academic Year 2012-2013, is also quashed and set aside. The respondent-University shall consider and treat the petitioner-colleges, as being 'affiliated' with the respondent-University, for the current Academic Year, i.e. 2012-2013 and shall ensure that students are allotted to the petitioner-colleges immediately. If the impugned order passed by respondent-WRC is implemented by the respondent- University, by de-affiliating the institutions concerned, then it shall be recalled, since the impugned order dated 01.06.2012 has been quashed by this Court. With the above direction, the petitions stand disposed of. Rule is made absolute with no order as to costs.
39. After the judgment was dictated, learned Asst.
Solicitor General Mr. Champaneri requested to stay the operation of this order for a period of four weeks. However, I do not find it appropriate to accept the request of Mr. Champaneri since the Academic Year has already commenced and further stay would cause severe damage to the careers of a large number of girl students who are studying in colleges affiliated with the respondent-University. Hence, the request to grant stay is declined.
[K. S. JHAVERI, J.] Pravin/*