Heard both sides.
2.The petitioner institute has been established for the purpose of conducting teacher training and the petitioner was granted conditional recognition by the NCTE,Bangalore on 29.05.2009. The petitioner institute also complied with all the conditions for grant of recognition as laid down by the NCTE, Bangalore and the NCTE, Bangalore, granted recognition to the petitioner on 24.06.2009 for conducting diploma in Teacher Education Course. Thereafter, the petitioner approached the first respondent on 12.06.2009 with a request to sponsor students to the petitioner's Institute for the academic year 2009-2010. The petitioner also paid necessary fee of Rs.25,000/- and made an application on 24.06.2009 for affiliation with permanent recognition. The 3rd respondent, by his proceedings, dated 19.06.2009 rejected the request of the petitioner stating that as per G.O.Ms.No.94, School Education (U1) Department, dated 03.05.2008, after getting recognition from the NCTE, Bangalore, the institute, which seeks recognition from the Government should enclose a fee of Rs.25,000/- and apply for approval before 31st May of the Academic year. As the petitioner did not get the recognition from the NCTE, Bangalore and the necessary fee for affiliation was paid only on 12.06.2009 and the application seeking approval of the list of teachers and other staff and as the application was received after 31.05.2009 and approval from the NCTE, Bangalore was not obtained, the petitioner cannot be given affiliation or permission for taking the students for the academic year 2009-2010. It is submitted by the petitioner that G.O.Ms.94, School Education (U1) Department, dated 03.05.2008, fixing the cut off date as 31.05.2009 is without jurisdiction and the same is passed in violation of Section 14(6) of the NCTE Act 1993. It is further stated in the petition that the said G.O.Ms.No.94 is contrary to the Spirit of Section 14, as the impugned order, fixed the cut off date for making application for affiliation and staff list approval for the academic year, to the 3rd respondent on or before 31st May of the year. It is further stated that the cut off date given in the G.O.Ms.No.94 is without reference to the notification made in the Extraordinary Gazette of India published on 23th May of 2009, whereby the cut of date prescribed in the clause 5(5) of the Regulation has been amended and in exercise of the powers conferred under Section 32(2) of the NCTE Act, 1993 for the academic session viz., 2009- 2010, the NCTE has got the power either to grant recognition or refuse the same and the decision can be communicated till 31st July 2009 and hence, the cut off date prescribed in G.O.Ms.No.94, for the application for approval of staff list and for affiliation should be made before 31st May enclosing the recognition granted by NCTE is impossible of compliance and therefore, the Government Order is to be set aside. Hence, the petitioner in the writ petition challenges the G.O.Ms.No.94 and the subsequently, the proceedings of the 3rd respondent, dated 19.06.2009 and to quash the same and for further directions.
3.The learned Government Advocate, Mr.R.Manoharan, appearing for the respondents, submitted that in the writ petition G.O.Ms.No.94 was challenged and this court has held in a Batch of writ Petitions Nos.13200 etc. of 2008, dated 28.10.2008 upheld the G.O.Ms.No.94 and no appeal has been filed against that judgment, the same has become final.
4.The learned Government Advocate, Mr.R.Mohanaran, appearing for the respondents also submitted that the power of the State Government to grant approval, even after the recognition granted by NCTE, Bangalore has been fully settled in the Full Bench judgment reported in 2008(1) CTC 545 in the case of Rukmani College of Education vs. State of Tamil Nadu and therefore, the petitioner cannot question the power of the State Government in fixing the cut off date for granting affiliation and approval of staff list. In the judgment delivered by Justice Mr.K.Chandru, in W.P.Nos.13200 of 2008 batches, dated 28.10.2008 after discussing the various judgments of the Honourable Supreme Court, the learned Judge has observed that the recognition of the NCTE was subject to the fulfilment of all such other requirements as may be prescribed by the regulatory bodies, including State Government as applicable. Therefore, it is too late in the day for the petitioner to contend that the State has no power to prescribe guidelines in the areas in which it has no exclusive jurisdiction. I am entirely in agreement with the reasons given by the learned Judge and therefore, it is not open to the petitioner to challenge the G.O.Ms.No.94. However in the judgment rendered by Justice Mr.K.Chandru, the scope of cut off date fixed in G.O.Ms.No.94 with reference to the amended regulation 5(5) of the NCTE Regulation.
5.Mr.B.Saravanan, the learned counsel appearing for the petitioner having realised that is not legally possible for him to attack the G.O.Ms.No.94, submitted his argument that though the validity of the G.O.Ms.No.94 cannot be questioned, having regard to the subsequent amendment to the cut off date, in the grant of affiliation by NCTE, by virtue of extraordinary notification published in the Gazette of India on 23.05.2009, whereby the cut off date mentioned under clause 5(5) of the regulation was modified for the academic year 2009-2010, by which the NCTE has power to either grant or refuse all the approval till 31.07.2009. Therefore, by virtue of that amendment to Rule 5(5) of the NCTE Regulation, the cut off date prescribed in the G.O.Ms.No.94 fixing 31st May of the year for submitting the application enclosing the recognition granted by NCTE for getting affiliation is unreasonable and impossible of compliance.
6.According to the learned counsel for the petitioner, Mr.B.Saravanan, that after G.O. Ms.94, dated 03.05.2008 was issued the Central Government issued the extraordinary Gazette of India, dated 23.05.2009 extending the period upto which recognition can be granted by NCTE namely upto 31.07.2009 the cut off date fixed in the G.O.Ms.No.94 should be declared as unreasonable.
7.He further submitted that till publication of extraordinary Gazette of India, dated 23.05.2009 NCTE Regulation 2007 was holding in the field and as per the Regulation 5(4), the cut off date for submitting the application to the Regulation Committee shall be 31st October of the preceding year to the academic year for which recognition has been sought for.
8.As per the Regulation 5(5) Act, completed application received on or before 31st October of the year, shall be processed for in the academic session and final decision to either recognition grant or refuse shall be communicated by 15 th May of succeeding year. Therefore, Mr.B.Saravanan, the learned counsel appearing for the petitioner, submitted that G.O.Ms.94, dated 03.05.2008 was passed with reference to the NCTE Regulation for the year 2007 and therefore, they fixed the cut off date for making the application for affiliation as 31st May of that year, because by 15th May, the NCTE would have given its approval and therefore, it is possible for the institute to apply before 31st May of that year, seeking affiliation and approval for the staff list. But, in May 2009, the NCTE Regulation was amended and clause 5(5) of the Regulation was amended only for the year 2009-2010, by which the time to be taken by the NCTE for granting approval was extended upto 31st July and hence, it is impossible for any person to apply for affiliation from the Government or approval of the staff list before 31st of May of that year and this was not properly considered.
9.In other words, Mr.B.Saravanan, the learned counsel appearing for the petitioner, submitted that as per the regulation as it stood in 2007, the NCTE would have granted approval by 15th May and hence, it is possible for the institute to apply for affiliation from the State Government before 31st of May and having regard to the extended period given to NCTE for granting approval till 31st July, the State Government should have also extended the time for submitting the application beyond 31st July and for that reason, the cut off date given in G.O.Ms.No.94 is impossible of compliance hence, it must be struck down as unreasonable.
10.In my considered opinion, the argument of the learned counsel appearing for the petitioner merits acceptance. As submitted by him, the Regulation clause 5(5), the NCTE regulation was amended for the academic year 2009-2010 as a special case, fixing the time limit for granting affiliation by NCTE till 31st July. Previously, the affiliation would have been granted on or before 15th May and it is possible for the petitioner to apply before 31st May. When NCTE can take time till 31st July for granting affiliation, it is not rational to expect the petitioner to submit his application on or before 31st May along with the recognition granted by the NCTE.
11.In this case admittedly, the conditional recognition was granted on 29.05.2009 and final recognition was granted on 26.06.2009 and even on 24.06.2009 itself, after the grant of conditional recognition the petitioner applied for approval and affiliation. As a matter of fact, as soon as the conditional recognition was granted, the petitioner remitted Rs.25,000/- which is prescribed for seeking affiliation and approval and submitted the application on that date itself, along with the chalan for Rs.25,000/-. Hence, without appreciating the amended Clause 5(5) of the NCTE Regulation and without verifying whether conditional recognition granted or not by the NCTE, relying upon the G.O.Ms.No.94, the 3rd respondent has refused to grant affiliation and approval of the staff list.
12.In this connection, the power of judicial review has laid down by the Supreme Court in such matters has to be taken into consideration for the purpose of granting relief.
13.The judgment reported in 2008(12) SCC 331 in the case of Man Singh vs. State of Haryana and others it has been held that "We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative of quasi- Judicial, is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in
Article 14 of the Constitution of India embraces the entire realm of State action. It would extent to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. the administrative action is to be just on the test of "fair play" and reasonableness."
14.In the judgment 2008(5) SCC 416 in the case of A.Satyanarayana and others vs. S.Purushotham and others, it has been held that "the superior courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. In the same judgment, it has been held that A statutory rule, it is trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the rule-maker,but the same must be capable of being taken to a logical conclusion"
15.Further it has been held that before a rule is declared ultra vires, the same must be held to be wholly arbitrary or irrational.
16.In that case, the Government has taken a policy decision in the matter of granting promotion and it was held that the impugned rule does not take into consideration the events which may take place in future. Under the said rule, the Government wanted to change the ratio in the matter of being promotion and it has been held that if the Government intends to change the ratio, it may do so, at the same time it may also provide for separate rules providing for maintenance of two different cadres at all levels. But what is impermissible is laying down a condition subsequent to adoption of a policy decision which defeats the object and purport thereof.
17.In State of Maharastra vs. B.E.Billimoria (2003)7 SCC 336 in para 32 the Honourable Supreme Court observed that " it is well settled that the provisions of the statute are to be read in the text and context in which they have been enacted. It is well settled that in construction of a statute an effort should be made to give effect to all the provisions contained therein. It is equally well settled that a statute should be interpreted equitably so as to avoid hardship.
"In K.V.Muthu v. Angamuthu Ammal (1997)2 SCC 53, " While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A Construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted".
18.As held by Honourable Supreme Court in 2009(3) SCC 709, in the case of Paul Enterprises and others vs. Rajib Chatterjee and Company and others, word in a clause must be given a purposive means; a meaning which is capable of being translated in the action; a meaning which would not lead to an anomaly or absurdity, a meaning which satisfies the text and context in which the word has been used".
19.In this case also, the cut off date was fixed having regard to the unamended regulation by the NCTE 2007 and having regard to the amended regulation of Rule 5(5), the Government ought to have amended the cut off date for the year 2009-10 and should not have insisted on the cut of date as fixed as per the NCTE Regulation 2007 and hence, it has to be declared an arbitrary and irrational.
20.In this case, admittedly, the NCTE has granted affiliation by its letter, dated.29.06.2009 and therefore, the respondents ought to have considered the affiliation for all the NCTE in the light of amended regulation and ought to have considered the application for affiliation and approval for starting the course in the year 2009-2010, without insisting that the application has been made after 31st May 2009. Therefore, though the validity of the Government Order has been upheld, following judgment of Justice Mr.K.Chandru. in so far as the cut of date fixed in that Government Order, G.O.Ms.No.94 School Education (U1) Department, dated 03.05.2008 is held to be unreasonable and arbitrary having regard to the subsequent amended to regulation 5(5) of the NCTE regulation.
21.Hence, the writ petition is allowed directing the 3rd respondent to consider the application of the petitioner as expeditiously as possible within a period four weeks from the date of the receipt of the copy of this order. Consequently connected Miscellaneous Petition is closed. No costs.
er To,
1.The Regional Director, National Council for Teacher Education, Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Bangalore-560 031.
2.The Secretary, School Education (U1) Department, Fort St. George, Chennai-9.
3.The Director of Teacher Education Research and Training, College Road, Chennai-600 006.
4.The Government Advocate, Madurai Bench of Madras High Court, Madurai.