1. Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2. To be referred to the Reporter or not ?
YES
3. Whether their Lordships wish to see the fair copy of the judgment ?
YES
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
YES
5. Whether it is to be circulated to the civil judge ?
NO ====================================== PRIYANKA VERMA C/O.VISHAMBHAR NATH VERMA - Petitioner Versus STATE OF GUJARAT THRO ITS SECRETARY & 3 - Respondents ====================================== Appearance :
MR MITUL K SHELAT for Petitioner.
MR PK JANI, Government Pleader assisted by MR RASHESH RINDANI, Assistant Government Pleader for Respondent Nos.1 - 3.
MR GM JOSHI for Respondent No.4.
====================================== CORAM :
HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 10/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. Rule.
Mr. Rashesh Rindani, learned Assistant Government Pleader waives service of rule on behalf of respondent Nos.1 to 3 and Mr. G.M. Joshi, learned counsel waives service of rule on behalf of respondent No.4. The facts shorn of unnecessary details are that the petitioner has challenged the action of the State Admission Committee in refusing to entertain the petitioner's application and to consider her for admission to Primary Teachers Certificate (for short the PTC) Course for the academic session 2011-2012, in institutions or institutes in State of Gujarat. The main ground of challenge is that Rule 4 to 4.1.3 framed by the State Government governing the admission to the two years' PTC course after XIIth standard (10+2), only permits students, who have passed their qualifying examination from a school situated within the State of Gujarat, would only be considered eligible for admission. The petitioner has challenged the legality of the said action and the validity of the said rules on the ground that fundamental rights of the petitioner guaranteed under Articles 14 and 19(1)(g) of the Constitution of India had been violated. It was further pleaded that the rules and regulations framed by the National Council for Teacher Education (for short the NCTE) in exercise of powers under the National Council for Teacher Education Act, 1993 (for short the 1993 Act) are binding on the Government of Gujarat and student from outside State of Gujarat cannot be denied admission in two years, PTC course.
2. The Division Bench which heard the matter for admission was of the opinion that the Division Bench decisions of this Court in writ petitions being Special Civil Application No.10324 of 2010 decided on 26.04.2011, Special Civil Application No.7406 of 2010 decided on 23.08.2010, and Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010 decided on 05.05.2010 are in direct conflict with the ratio of the Apex Court decisions in Pradeep Jain v. Union of India (1984) 3 SCC 654 and Saurabh Chaudry v. Union of India AIR 2004 Supreme Court 361. The Division Bench in paragraph 5, 6 and 7 of the referring order dated 24.02.2012 observed as under:-
"5. The ratio prima facie appears to be that in the field of higher education, State Government or any university cannot provide 100% preference or reservation for local students within the State of Gujarat and exclude completely students from other states from consideration. In our opinion prima facie, the contention of learned Government Pleader that the only prohibition imposed is for the student who have not passed their H.S.E. (12th i.e. 10+2 pattern examination) or equivalent examination from a school not located in Gujarat State but incumbent can apply and consider for examination even if he or she has passed out from the university situated outside the Gujarat provided such candidate shall have passed the examination of H.S.E. or equivalent from a school located in Gujarat, if accepted, is directly in conflict with the ratio of Pradeep (supra.) and Sandeep (supra.).
6. To the extent above, the impugned rules limit the admission to the students who are domiciled within the State of Gujarat may not be justified. The decisions of the Division Bench referred to above requires re-look in view of Saurabh's case (supra.) and Pradeep's case (supra.).
7. In this view of the matter, we are inclined to refer the present special civil application before a larger bench."
3. This Full Bench had been constituted on 17.04.2012. Since the writ petition had been referred to the larger bench, with the consent of learned counsel for the parties we have taken up the writ petition for final hearing at the admission stage after affording opportunity to the parties to exchange their affidavits.
4. We have heard Mr. Mitul K. Shelat learned counsel for the petitioner. Mr. P. K. Jani the learned Government Pleader assisted by Mr. Rashesh Rindani, Assistant Government Pleader appearing for the respondent Nos.1 to 3 and Mr. G. M. Joshi, learned counsel appearing for respondent No.4.
5. On the arguments of learned counsel for the parties, the questions that arise for consideration in this writ petition are as below:-
(i) Whether the rules, regulations and guidelines framed by the National Council for Teacher Education in exercise of powers under the National Council for Teacher Education Act, 1993; are binding on the Government of Gujarat and the rules, policy or guidelines issued by the Government providing that a candidate seeking admission to two years, PTC course would only be eligible to apply for admission if such candidate had passed the examination of Higher Secondary Education (10+2 pattern) or equivalent examination from a school located within the State of Gujarat, is directly in conflict with the regulations and guidelines framed under the 1993 Act and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009?
(ii) Whether the Gujarat Educational Institutions (Regulation) Act, 1984 or the Gujarat Educational Institutions (Pre-primary and Primary teachers Training College) Rules, 1984 as amended in 1998 and instruction of the Education Department of the State of Gujarat dated 4.6.2002 issued by the State of Gujarat or any other rule, policy or guideline issued for restricting admissions to PTC course only to the students who had passed 12th standard examination (10+2 pattern) from the institutions located within the State of Gujarat is directly in conflict with the Central 1993 Act, therefore, void and unenforceable under Article 254 of the Constitution of India?
(iii) Whether in the field of higher education, the State Government or any university could provide 100% preference or reservation for admission to students who had passed XIIth standard (10+2 pattern) examination from schools situated within the State of Gujarat, and exclude completely students from other states from consideration for admission, whether such right is upheld in various Division Bench decisions by this Court in writ petitions being Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010 decided on 05.05.2010 ; Special Civil Application No.7406 of 2010 decided on 23.08.2010 ; Special Civil Application No.10356 of 2010 decided on 13.01.2011 ; Special Civil Application No.10324 of 2010 decided on 26.04.2011 and whether the abovementioned Division Bench decisions are directly in conflict with the ratio of the Apex Court decisions in Pradeep Jain v. Union of India (1984) 3 SCC 654 and Saurabh Chaudry v. Union of India AIR 2004 Supreme Court 361 and whether the rules, instructions or guidelines issued by State Government completely ousting students from other States are violative of fundamental rights guaranteed under Article 14 of the Constitution of India?
FIRST QUESTION
6. The first question which arises for consideration is whether the rules, regulations and guidelines framed by the National Council for Teacher Education in exercise of powers under the National Council for Teacher Education Act, 1993, are binding on the Government of Gujarat and the rules, policy or guidelines issued by the Government providing that a candidate seeking admission to two years, PTC course would only be eligible to apply for admission if such candidate had passed the examination of Higher Secondary Education (10+2 pattern) or equivalent examination from a school located within the State of Gujarat, is directly in conflict with the regulations and guidelines framed under the 1993 Act and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009? The National Council for Teacher Education Act, 1993 had been enacted by the Parliament and deals with teacher's education. It had come into force with effect from 1.7.1995. With a view to achieve planned and coordinated development of the teacher education system throughout the country, the Act provided for the establishment of a National Council for Teacher Education. The object of the Act was to regulate and maintain the norms and standards in the teachers education system. Section 2(l) defines "teacher education" to mean programmes of education, research or training of persons for equipping them to teach at pre-primary, secondary and senior secondary schools, etc. Section 2(e) defines "institution" as an institution which offers courses or training in teacher education. NCTE has four Regional Committees. One Committee each had been established in four major geographical zones. State of Gujarat falls within the jurisdiction of NCTE, Western Region Office, Bhopal.
7. The National Council for Teacher Education, New Delhi in exercise of power conferred by sub-section (2) of Section 32 of the Act in supersession of the National Council for Teacher Education [Recognition, Norms and Procedure] Regulations, 2007, framed on 31.8.2009 the National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009 (for short Regulations 2009). The Regulations 2009 in Appendix-2 laid down the norms and standards for diploma in elementary teacher education programme leading to Diploma in Elementary Education (D.El.Ed). The preamble stated that the aim of elementary education was to fulfill the basic learning needs of all children in an inclusive school environment bridging social and gender gaps with active participation of the community. The programme was aimed at preparing teachers for elementary stage of education that is Class I to VII/VIII. It was further clarified that the elementary teacher education programmes carries different nomenclatures like BTC, Diploma in Education, TTC and so on. In the preamble, it was further stated that both the duration of training and entry qualifications to the course are same, hence, nomenclature of the course was required to be changed by all the States in India as D.El.Ed., course. However, the nomenclature of different courses mentioned in the preamble was only illustrative and not exhaustive and it would also include PTC course.
8. It appears that the State Governments were not following the norms and standards for Diploma in Elementary Teacher Education Programme and they had not changed the nomenclature of the course uniformally in the entire country. In State of Gujarat, elementary teacher education programme is known as Primary Teachers Certificate which is a two year course. Though the State of Gujarat had not changed the nomenclature of the course and the course is still recognized as PTC course, but it is obligatory for the State Government and institutions or institutes imparting teachers training education to follow the norms laid down by NCTE.
9. Appendix-2 of the Regulations 2009 in paragraph 3 of the norms lays down the intake, eligibility and admission procedure. Paragraph 3(1) provides for intake capacity as basic unit of 50 students for each year, would be the intake of an institution. However, District Institute of Education and Training (DIETs/District Resource Centers (DRCs) could be sanctioned a maximum intake of 200 students if they fulfill the other requirements. Paragraph 3(2) prescribes the eligibility criteria and paragraph 3(3) lays down the admission procedure. It is necessary to extract paragraph 3(1), (2) and (3) as under :-
of fifty students, for each year. However, the District Institute of Education and Training (DIETs)/ District Resource Centers (DRCs) sanctioned under the Centrally Sponsored Scheme on Teaching Education could be sanctioned a maximum intake of two hundred subject to fulfillment of other requirements.
(2) Eligibility
(a) Candidates with at least 50% marks in the senior secondary (10+2) or the equivalent examination are eligible for admission.
(b) The reservation for SC/ST/OBC and other categories shall be as per the rules of the Central Government/State Government, whichever is applicable. There shall be relaxation of 5% marks in favour of SC/ST/OBC and other categories of candidates.
(3) Admission Procedure Admission shall be made on
merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/UT Administration."
10. From the perusal of norms fixed by the NCTE, eligibility for admission of a candidate with at least 50% marks in the senior secondary (10+2) or its equivalent examination is a sine qua non.
The eligibility criteria fixed in the norms by NCTE did not provide that local students who had obtained minimum eligibility qualification from the schools situated in a particular State i.e. the State of Gujarat would only be eligible for admission to PTC course. It does not bar the students from all over India who have passed the senior secondary (10+2) or its equivalent examination with at least 50% marks to be eligible for admission. The Government of Gujarat published an advertisement in daily newspaper Gujarat Samachar on 26.8.2011 and invited applications from students seeking admission to two years PTC course, in PTC Colleges in the State. Similar advertisements were also published in other newspapers.
11. The petitioner being a resident of State of Uttar Pradesh and having secured 54% marks in her 10+2 examination, applied for admission to two years PTC course in institutions situated in the State of Gujarat. It is claimed that the petitioner's application for admission was not entertained by the respondent no.4 and other respondents, on the ground that the petitioner had passed her 10+2 examination from schools situated outside the State of Gujarat, therefore, as per the admission policy, candidate from outside Gujarat was not eligible for admission.
12. In the affidavit-in-reply filed on behalf of respondent nos.2 and 3, it had been stated by the respondents that the petitioner is a permanent resident of Uttar Pradesh and she had passed standard 12th examination from the State of Uttar Pradesh and was seeking admission to PTC course in the State of Gujarat. Though it is not disputed that PTC courses are governed and regulated under the provisions of the 1993 Act and Regulations 2009 framed thereunder and the eligibility criteria is also not disputed but it has been stated that admission procedure provided in the Regulation makes it clear that the admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of State Government/UT Administrations. It is further stated that so far as admission to PTC courses are concerned, the State Government can frame its own policy in exercise of such powers vested in the State Government and is competent to frame rules prescribing that 12th standard or its equivalent qualifying examination which the candidates must have been passed from schools situated and run within the State of Gujarat.
13. The State Government had framed its Rules for admission in PTC course. Rule 4 to 4.1.3 as mentioned in paragraph 6 of the affidavit-in-reply reads as under :-
"(4) Eligibility for Admission :-
These are the rules for want to admission in P.T.C. for the All the Teacher Training Colleges.
(4.1) Examination for the Eligibility of Admission:-
Candidate should have passed any one Examination mentioned below :
(4.1.1) Exam of Gujarat Secondary and Higher Secondary Education Board Exam of std. 12 in Science, General, Uttar Buniyadi and vocational stream by Gujarat Secondary and Higher Secondary Education Board.
(4.1.2) Exam of Central Board of Education Exam of Std. 12 by Central Board of Education, New Delhi in Secondary and Higher Secondary schools run in Gujarat State and also they are approved by component authority. (In above mentioned stream as 4.1.1) (4.1.3) Exam of Council of the Indian School Certificate :-
Exam of Std. 12 by Council of the Indian School Certificate, New Delhi in Secondary and Higher Secondary schools run in Gujarat State and also they are approved by component authority. (In above mentioned stream as 4.1.1)".
14. In further affidavit-in-reply, it is stated that the State Legislature had enacted the Gujarat Educational Institutions (Regulation) Act, 1984 (for short the Act 1984) which regulates the recognition, establishment and maintenance of institutions imparting training in PTC course. In exercise of powers under Section 13 of the Act 1984, the State Government had framed Rules known as Gujarat Educational Institutions (Pre-primary and Primary Teachers Training College) Rules, 1984 (for short Rules 1984). How admission of students is to be made had been laid down in Rule 6 of the Rules which provide that the minimum qualification for training in the educational institution shall be the possession of Secondary School Certificate issued by Gujarat Secondary Education Board, as laid down in Appendix V of the Rules. It is necessary to extract Appendix V as under:-
"APPENDIX-V (See rule-6) PROVISIONS RELATING TO ADMISSION IN EDUCATION INSTITUTION
1. The minimum qualification for admission for training in the Educational Institution shall be the possession of Secondary School Certificate issued by Gujarat Secondary Education Board.
2. Admission shall be given on the basis of the marks obtained in the Secondary School Certificate Examination.
3. Minimum age of candidate for admission shall be 15 years at the commencement of the academic year and no candidate shall be admitted in an Educational Institution if his age exceeds 22 years at such commencement :
Provided that the maximum age limit specified in this clause shall be relaxed by 5 years in the case of a candidate belonging to the Scheduled Caste or as the case may be Scheduled tribe.
4. There shall be reserved 7% of the seats for candidate belonging to Scheduled Caste, 14% of the seats for candidates belonging scheduled tribes and 10% of the seats for candidates belonging to other socially and educationally backward class out of the total seats available in the first year class in the Institution.
5. The procedure to be followed for admitting candidates in an Educational Institution shall be such as may be specified by the Director or, as the case may be, authorized Officer."
15. From Appendix V(1) of Rules 1984, it is obvious that admission to PTC course is restricted to students who have Secondary School Certificate issued by Gujarat Secondary Education Board meaning thereby that those students who do not possess a Secondary School Certificate issued by Gujarat Secondary Education Board would not have the minimum qualification for admission to PTC course.
16. The 1993 Act came into force on 1.7.1995. The State of Gujarat brought an amendment in Rules 1984 by Gujarat Educational Institutions (Pre-Primary and Primary Teachers Training Colleges) (Amendment) Rules, 1998 by notification dated 9.6.1998 published in the Gujarat Government Gazette, Extraordinary, Part IV-B. It provided that in Rule 5, for sub-rule (6) and Appendix V of the Rules, the following shall be substituted namely :-
"(6) unless otherwise directed by Director the academic year of the Educational Institution shall commence from 1st July and shall end on the 30th May: There shall be a vacation for the period of six weeks in an academic year out of which winter vacation shall not exceed two weeks and summer vacation shall not exceed four weeks. The commencement and duration of vacation shall be such as may be decided by the Director."
In the said rules, in appendix-V for paras 1, 2 and 3 the following shall be substituted, namely :-
"1. The minimum qualification for admission for training in the Educational Institution shall be possession of "Secondary School Certificate issued by Gujarat Secondary Education Board in case of Pre-Primary Teachers Training and Higher Secondary School Certificate issued by Gujarat Higher Secondary Education Board in case of Primary Teachers Training.
Provided that in case of Primary Teachers Training Courses, out of total seats 70% seats shall be allotted to candidates from General, Commerce, Vocational and Uttar Buniyadi Stream, 30% of seats shall be allotted to candidates from Science stream in ratio proportionate to successful candidates in respective stream in Higher Secondary School.
Admission shall be given on the basis of the marks obtained in the Secondary School Certificate Examination in case of Pre-Primary Teachers Training and Higher Secondary School Certificate Examination in case of Primary Teachers Training.
Minimum age of candidates for admission to Pre-Primary Teachers training shall be 15 years, minimum age of candidate for admission to Primary Teachers Training shall be 17 years at the commencement of the academic year, and no candidate shall be admitted in an Educational Institution if his age exceeds 22 years and 24 years respectively for Pre-Primary Teachers Training at such commencement :
Provided that the upper age limit shall be relaxed by five years in the case of a candidate belonging to Scheduled Caste, Scheduled Tribe or as the case may be Socially and Educationally Backward Class".
17. It is clear from the amendment made in Rules 1984 in Appendix V paragraph 1 that in case of Primary Teachers Training course Higher Secondary School Certificate issued by Gujarat Higher Secondary Education Board became the minimum educational qualification for admission for training in the educational institution.
18. In the affidavit filed by the respondents, it is stated that in English Medium PTC colleges large number of seats were lying vacant. On the representation of English Medium Colleges, the Education Department of the State Government issued instructions on 4.6.2002 permitting those students to be eligible for admission to PTC course, who had passed 12th examination from schools situated in State of Gujarat, which were affiliated to CBSC Board, New Delhi and ISCE Board, New Delhi. The letter dated 4.6.2002 is in vernacular and its English translation is as below :-
"PTC Information Gazetteer Volume-1. Letters/resolutions/circulars/notification etc......
7. Category of Central schools.
7.1 No.
TCM-1402-177-N.
Education Department, Sachivalaya, Gandhinagar.
Date: 4/6/2002.
READ:
The letter dtd. 30/5/2002 No. 41/Shat/admission/j/3537.
CIRCULAR:
The provision has been made to give admission in PTC only to the candidates who have passed examination of std. 12 held by Gujarat Secondary Education Board in (Regulation) Rules, 1984 wherein it was under consideration to make such amendment that such candidates who have passed the examinations in recognized central schools, higher secondary school situated in Gujarat, held by Central Board New Delhi or Council of the Indian School Certificate Examination New Delhi, may also submit application for admission in PTC. The Government has accepted the said fact and such candidates who have passed the examinations of std. 12 held by Central Board of Secondary Education, New Delhi or Council of the Indian School Certificate Examination, New Delhi may also submit an application for admission in PTC. The seats shall be allotted in the proportion in comparison to the numbers of the students who have passed the examination of Gujarat Secondary Education Board.
Pursuant to the notification dtd. 9/6/98 of Education Department, the provision has been made to give admission in the First Year of PTC to the students of science stream , general stream , vocational stream and uttar basic stream as per the prescribed percentage of total seats wherein instruction is issued for allotment of seats of the following higher uttar basic streams as under:
(A) With science subjects of higher uttar basic stream (B) With other subjects of higher uttar basic stream.
The seats shall be allotted in proportion of the numbers of the students who have passed the examination of Gujarat Secondary Education Board.
In the name and by the order of the Governor of Gujarat, sd/- illegible (G.K.Bhavsar) Section Officer"
19. The Rules 1984 as amended in 1998 and instructions issued by the Education Department in 2002 provided that for admission to Primary Teachers Training course, those students who have passed 10+2 examination from Gujarat Higher Secondary Education Board or CBSC Board New Delhi or ISCE Board New Delhi from schools situated within the State of Gujarat would only be eligible for admission to PTC course.
20. In the affidavit filed by the respondents it has been stated that there are 463 PTC colleges imparting PTC training in the State of Gujarat. Out of 463 PTC colleges, 33 colleges are run by the State Government, 43 colleges are aided and 387 colleges are self-finance colleges. It has further been stated that all the 463 colleges impart training in different languages. The table indicating number of colleges imparting PTC training in various languages is reproduced as under :-
Sr.
No.
Medium of Instruction Number of PTC Colleges
01. Gujarati 451
02. Hindi 002
03. English 007
04. Urdu 001
05. Marathi 001
06. Sindhi 001 TOTAL 463
21. Section 3 of the Act 1984 provided that no person in the State can maintain an educational institution unless it is recognized by the State Government. After the enforcement of the 1993 Act, power of granting recognition to educational institutions for imparting PTC training course or technical education etc. now vests with the NCTE, which had been established to achieve planned and coordinated development of teacher education system throughout the country. A national policy was evolved by the NCTE by framing Regulations, guidelines, norms and standard. The eligibility criteria for admission etc., had been determined by the NCTE under its Regulations, guidelines and norms. But it is not open to NCTE to make any regulation or issue any guidelines empowering the State Government to undertake such an exercise.
22. The education policy of Government of India under Sarv Shiksha Abhiyan required opening of large number of primary schools and thereafter secondary schools. There were PTC Colleges which required students to be admitted for training to PTC course in different mediums of instruction. Admission to PTC colleges are made by the Centralised Admission Committee. The procedure for admission has to be specified by the Director of Primary Education or the authorized Officer. The brochure for PTC admission for year 2011-2012, in paragraph 15 provides that seats in English medium, if could not be filled, could be filled from the combined merit list of Gujarati, Urdu, Marathi, Sindhi and Hindi medium students who have passed standard 10th and 12th examination with English subject, after written consent is given by the students for undergoing PTC course in English medium, and for admitting them in English medium PTC college, admission was to be given on merit. In instructions dated 4.6.2002 10th standard passed in English was not mentioned. Only 12th standard passed in English subject was required. From the aforesaid, it is clear that a student of Hindi medium can also be admitted to PTC colleges provided he fulfills the other qualifications of having passed standard 12th examination with English subject. A Hindi medium student can also be admitted to PTC colleges where medium of instruction is Hindi. There may be students from State of Maharashtra or from other States who may like to take admission in PTC colleges where the medium of instruction is Marathi. While restricting the admissions to candidates who had passed 10+2 examination from schools established within the State of Gujarat, the State Government overlooked the fact that it was not necessary that the candidates who are successful in PTC course and become trained teachers, may also include candidates who do not seek employment in other institutions in Gujarat or after training, they may go back to their home State or they may use the training in self-employment. The Rules 1984 as amended by the State Government, restricting admission to students who had passed 12th examination from schools in Gujarat and not permitting admission to student from outside States who have passed 10+2 examination from outside Gujarat, is not binding on the NTCE. On the other hand, the guidelines and norms issued by NCTE for admission to PTC or equivalent course would be binding on the State Government. Neither the Government nor the University can act contrary to the decision taken by an authority established under a Central Act. The State Government had no power after the enforcement of the 1993 Act to decide the eligibility criteria for admission to PTC course or to frame any rule or issue any executive instruction or give effect to the provisions of Act 1984 or Rules 1984 as amended which were inconsistent and repugnant to the 1993 Act, Regulations, norms and guidelines of NCTE. No University or educational institution could rely on the policy of the State Government which is contrary to the decision of NCTE.
23. If the State Government had been empowered under the 1993 Act, Regulations, norms or guidelines, then only to that limited extent, the State Government could exercise its power. In paragraph 3(3) of Appendix-2 of the Regulations 2009, the State Government had been empowered to make policy with regard to admission procedure. Under this power, the State Government may frame a policy for admitting a candidate on the basis of marks obtained in the qualifying examination, on merit. It is also open to the State Government to frame a policy for taking admission test or entrance examination or the State Government may evolve any other selection process which the State Government may deem fit. But the State Government had not been conferred any power by the NCTE to frame rules or issue instructions, so as to change intake capacity or eligibility criteria as mentioned in paragraphs 3(1) and 3(2) of Appendix 2 of the Regulations 2009. The State Government or any other authority functioning on behalf of the State Government could not modify or alter the eligibility criteria prescribed by the NCTE. The NCTE has laid down in paragraph 3(2)(a) that candidates with at least 50% marks in senior secondary (10+2) or equivalent examination are eligible for admission. The State Government under the garb of any policy, rules, government resolution, government order, guidelines or instructions could not modify the eligibility criteria and read therein that a candidate has to obtain such qualification from an institution situated within the State of Gujarat as this would be contrary to the entire scheme for which the 1993 Act was enacted and NCTE was established. If such power is vested in the State Government it would be detrimental to the national and public interest. Once the NCTE had laid down the eligibility criteria, it is final and neither the State Act, Rules, instruction and guidelines nor any authority of the State can interfere with the decision taken by the NCTE. The State Government could not have any policy, rule or instruction which are inconsistent with the NCTE Regulations. Thus, the decision taken by the State Government to admit only those students in PTC course who had passed 10+2 examination from schools situated within the State of Gujarat is contrary to Regulation 2009 and is totally irrational.
24. Article 21-A was inserted in Part III of the Constitution of India by the Constitution (Eighty-sixth Amendment) Act, 2002 which came into force with effect from 12.12.2002. It mandated that the State shall provide free and compulsory education to all children between the age of 6 to 14 years in such manner as the State may, by law, determine. This Article was included in fundamental rights to give full effect to Article 45 of the Constitution which provided for free and compulsory education for all children upto the age of 14 years. Though the goal set up in Article 45 was to be achieved within 10 years, but even after fifty years, since the object could not be achieved, therefore, in order to provide quality education universally, Article 21-A was enacted by the Parliament and it covers primary as well as secondary education. The effect of enactment of Article 21-A was that it became obligatory for every State to provide for free and compulsory education to children who were between 6 years to 14 years.
25. The Parliament had enacted the Right of Children to Free and Compulsory Education Act, 2009 (for short the Act 2009) with an object for strengthening the social fabric of democracy through provision of equal opportunities to all in which there was crucial role of universal elementary education. The children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education was very large. The Act 2009 came into force with effect from 1.4.2010 which provides for right to free and compulsory education, duties of appropriate Government, local authorities, parents, responsibilities of schools and teachers, curriculum and completion of elementary education.
26. Two notifications were issued by the Ministry of Human Resources Development dated 31.3.2010. By notification no.S.O. 749(E), in exercise of powers under sub-section (1) of Section 29 of the Act 2009, the Central Government authorized the National Council of Education Research and Training as the academic authority to lay down the curriculum and evaluation procedure for elementary education, and to develop a framework of national curriculum under clause (a) of sub-section (6) of Section 7 of the Act. The other notification no.S.O. 750(E) was issued in exercise of powers under sub-section (1) of Section 23 of the Act 2009 by which the Central Government authorized the National Council for Teacher Education as the academic authority to lay down the minimum qualification for a person to be eligible for appointment as a teacher. Both the notifications were published in the Gazette of India, Ext., Part II, S.3(ii) dated 5.4.2010.
27. The Act 2009 in Section 6 provides that it is the duty of the State Government and local authority to establish schools. Section 7 states that the Central Government and State Government shall have concurrent responsibility for providing funds for carrying out the provision of the Act. Section 8 lays down that it is the duty of the State Government to provide free and compulsory education to every child. Section 11 expects the State Government to make necessary arrangements for providing free pre-school education to children above the age of three years to prepare them for elementary education and to provide childhood care and education for all children until they complete the age of six years. Section 15 gives right of admission to a child. Section 18 lays down that no school other than a school established, owned or controlled by State Government or the local authority, shall after commencement of this Act, be established or function without obtaining a certificate of recognition from such authority as may be prescribed. Section 23 prescribes the minimum eligibility qualification for appointment as a teacher which would be as laid down by the academic authority, authorised by the Central Government by notification. The Central Government by notification dated 31.3.2010 had authorised the National Council for Teacher Education as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. It is relevant to point out over here the NCTE in Regulations 2009 in Appendix-1 has laid down the norms and standards for Diploma in early childhood education programme. In Appendix-2 norms and standards for diploma in elementary teacher education programme are laid down. Section 29(2)(f) provides that academic authority while laying down the curriculum and evaluation procedure shall take into consideration that medium of instructions shall, as far as practicable, be in child's mother tongue. Section 34 provides that a State Advisory Committee shall be constituted by the State Government.
28. In further affidavit-in-reply in paragraph 8 (xii), it is stated that institutions offering PTC training after the 1993 Act are recognised by NCTE. In paragraph 11, it is stated that under section 29(f) of the Act 2009 emphasis has to be given for providing primary education to the children in their respective mother tongue as far as possible and, therefore, the students who have not passed 12th standard examination from schools in the State of Gujarat may not be suitable to become teachers. The apprehension of the State Government is not well-founded. The admission has to be given to students in PTC training course under the norms and standards fixed by NCTE with a national outlook. As it is clear from the admission brochure of 2011-2012 and affidavit filed by the respondents wherein a table has been given, which we have already extracted in earlier paragraph of this judgment, which clearly establishes that there are Gujarati, Hindi, English, Urdu, Marathi, and Sindhi medium colleges for imparting PTC training to students who have passed 12th examination could be admitted. Further in English medium schools students of CBSC Board New Delhi and ISCE Board New Delhi could be admitted. The State of Gujarat may require trained teachers of Gujarati, Urdu, Marathi, Sindhi, Hindi and English in primary schools. If a student has to be taught in the aforesaid mediums, then trained teachers are required. In State of Gujarat, there may be large number of Urdu, Marathi, Sindhi and Christians population. Their mother tongue may be Gujarati, Hindi, Marathi, Urdu, Sindhi or English. Therefore, admissions to PTC colleges could not be restricted only to the students who had passed their 12th standard examination from schools situated in Gujarat. If a student's mother tongue is Sindhi, the teacher will be communicating with the child in Sindhi. Where a student's mother tongue is Hindi, the teacher will be communicating with the child in Hindi. Therefore, the object of Section 29(f) could be met and there will be all round development of the child and his knowledge potentiality, talent, physical and mental abilities as well as learning activities would be to the fullest extent which will result in overall healthy development and growth of the child.
29. The learned Government Pleader has fervently urged that the Rules 1984 as amended in 1998 and instruction issued in 2002 by the State Government were with the object of promoting the welfare of the students who had studied in schools situated in Gujarat. The State has a right to admit students of their choice to give benefit to local students, provided the admission procedure is fair and admissions are made strictly on merits. The argument of the learned counsel for the respondents deserves to be rejected. The object for enacting Act 1993 was to achieve overall excellence in teachers education throughout the country. If the State is permitted to choose local student only on the basis of merit, the State would be depriving admission to the most meritorious students of the other States. In the field of higher education after 12th standard, the involvement of the State Government has to be minimal. Knowledge empowers the individual. No boundary can be drawn for acquiring knowledge by the State. State's territorial barriers are breaking down in the field of higher education. To deny access to knowledge or training and limiting it to the students who had passed from institutions situated in State of Gujarat would be arbitrary and unconstitutional. The 1993 Act, Regulations 2009, norms and standard are binding on the State Government.
30. We are of the considered opinion that answer to the first question is that the rules, regulations and guidelines framed by the National Council for Teacher Education in exercise of powers under the National Council for Teacher Education Act, 1993; are binding on the Government of Gujarat and the rules, policy, guidelines and instructions issued by the Government providing that a candidate seeking admission to two years, PTC course would only be eligible to apply for admission provided such candidate had passed the qualifying examination from a school located within the State of Gujarat, are directly in conflict with the regulations 2009 and norms and standards fixed under the 1993 Act and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009.
SECOND QUESTION
31. The second question is whether the Gujarat Educational Institutions (Regulation) Act, 1984 or the Gujarat Educational Institutions (Pre-primary and Primary teachers Training College) Rules, 1984 as amended in 1998 and instruction of the Education Department of the State of Gujarat dated 4.6.2002 issued by the State of Gujarat or any other rule, policy or guideline issued for restricting admissions to PTC course only to the students who had passed 12th standard examination (10+2 pattern) from the institutions located within the State of Gujarat is directly in conflict with the Central 1993 Act, therefore, void and unenforceable under Article 254 of the Constitution of India? The learned Government Pleader appearing for the State Government has vehemently urged that the Act and Rules framed by the State Government in the year 1984 or instructions of Education Department would not apply to the student from outside States who had not passed 10+2 examination from schools in Gujarat and therefore students from outside State could not be admitted. He further urged that the policy and guidelines mentioned in the admission brochure restricting admissions only to those students who had passed the qualifying examination from schools in Gujarat is valid and the State Act and Rules would continue to occupy the field as they are not in conflict with the Central 1993 Act. The State Government had framed Act and Rules in the year 1984. Rule 1984 in Appendix V (i) laid down that the minimum educational qualification for admission to PTC training course which provided that a candidate must possess the secondary school certificate issued by Gujarat Secondary Education Board. Whereas Regulation 2009 framed by NCTE under the 1993 Act, Appendix-2, paragraph 3(2)(a) provides that candidates with at least 50% marks in senior secondary (10+2) or equivalent examination would be eligible for admission. In the further affidavit-in-reply it had been stated that in the admission brochure it was mentioned that for getting admission in PTC course, students are required to have passed 12th standard examination from Gujarat Secondary School Board or from the Schools situated in Gujarat as referred in the instructions dated 4.6.2002 for admission. The counsel for the petitioner has urged that the eligibility criteria provided in the norms and standard fixed in Appendix-2 of the Regulations 2009 could not be changed or altered by the State Government. The 1993 Act and Regulation 2009 if read in juxtaposition with the Act 1984 and Rules 1984 as amended in 1998 makes it clear that they operate in the same field. This demonstrates that there is apparent conflict between the laws, one made by the Parliament and the other by the State Legislature. The Apex Court in State of Tamil Nadu v. Adhiyaman Educational and Research Institute, (1995) 4 SCC 104 considered the role of NCTE and held in paragraph 22 as under :-
"22. ... The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is, further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to derecongise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. ...... It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the States and the professional bodies on it which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well. What is further important to note is that the subject covered by this statute is fairly within the scope of Entry 66 of List I and Entry 25 of List III."
32. The Apex Court in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others, (2006) 9 SCC 1 considered the conflict between the Central Act and the State Act and in paragraph 62 and 63 held as under :-
"62. From the above decisions, in our judgment, the law appears to be very well settled. So far as co-ordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as State Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution.
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'."
33. From the law laid down by the Apex Court in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra), it is clear that if there is a direct conflict between the Central Act and the State Act, the provisions of the State Act which impinge upon the provisions of the Central Act are void and unenforceable. In the further affidavit-in-reply filed by the respondents, it has been stated in paragraph 7 that there is no conflict between the 1993 Act and Gujarat Act 1984 and both can co-exist by giving a harmonious interpretation. We have tried to harmonize the two Statutes. We have come to the conclusion that both the Statutes occupy the same field. If one follows the State Act, the Central Act is disobeyed. It is not possible to obey one Act without disobeying the other. Both the Acts are incompatible with each other and if both are followed, it may lead to absurd results, therefore, both the Acts cannot co-exist. The repugnancy exist in fact. Once the field was fully and completely occupied by the 1993 Act which was enacted by the Parliament and covered by Entry 66 of List I of Schedule VII of the Constitution, the Act 1984 and the Rules as amended framed thereunder or any other rule, policy or guideline framed by the State Government or instructions issued by the Education Department are in direct conflict with the provisions of the 1993 Act and Regulations 2009 framed thereunder. The State Act 1984, Rules 1984 as amended and instructions 2002 has to be declared to be void and unenforceable under Article 254(1) of the Constitution of India. We hold that the Act 1984, Rules 1984, as amended and instructions 2002 made by the State Government are void and unenforceable.
34. We are of the considered opinion that the answer to the second question is that the Gujarat Educational Institutions (Regulation) Act, 1984 and the Gujarat Educational Institutions (Pre-primary and Primary teachers Training College) Rules, 1984 as amended in 1998 and instruction of the Education Department of the State of Gujarat dated 04.06.2002 or any other rule, policy or guideline issued for restricting or limiting admissions to PTC course only to the students who had passed 12th standard examination (10+2 pattern) from the institutions located within the State of Gujarat are directly in conflict with the Central 1993 Act and Regulations 2009 and are declared void and unenforceable under Article 254(1) of the Constitution of India.
THIRD QUESTION
35. The third question is whether in the field of higher education, the State Government or any university could provide 100% preference or reservation for admission to students who had passed XIIth standard (10+2 pattern) examination from schools situated within the State of Gujarat, and exclude completely students from other states from consideration for admission, whether such right is upheld in various Division Bench decisions by this Court in writ petitions being Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010 decided on 05.05.2010 ; Special Civil Application No.7406 of 2010 decided on 23.08.2010 ; Special Civil Application No.10356 of 2010 decided on 13.01.2011 ; Special Civil Application No.10324 of 2010 decided on 26.04.2011 and whether the abovementioned Division Bench decisions are directly in conflict with the ratio of the Apex Court decisions in Pradeep Jain v. Union of India (1984) 3 SCC 654 and Saurabh Chaudry v. Union of India AIR 2004 Supreme Court 361 and whether the rules, instructions or guidelines issued by State Government completely ousting students from other States are violative of fundamental rights guaranteed under Article 14 of the Constitution of India? The Apex Court in Pradeep Jain and others v. Union of India and others (1984) 3 SCC 654 observed that India is one nation and there is only one citizenship. Article 5 of the Constitution recognizes only one domicile, namely, domicile in India. The Apex Court further observed that it is unfortunate that a citizen who has his permanent residence in a State entertains the feeling that he must have a preferential claim to be admitted to an educational institution within the State vis-a-vis a citizen who has his permanent residence in another State, because the latter is an outsider and must yield place to a citizen who is a permanent resident of the State, irrespective of merit. The question before the Apex Court was as to whether such reservations or preferences are constitutionally valid when tested on the touchstone of Article 14. The Apex Court laid down in Pradeep Jain (supra) in paragraphs 19 and 20 as below :-
"19. ...We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalize opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or premedical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education."
"20. The only question which remains to be considered is as to what should be the extent of reservation based on residence requirement and institutional preference. There can be no doubt that such reservation cannot completely exclude admission of students from other universities and States on the basis of merit judged in open competition. Krishna Iyer, J. rightly remarked in Jagdish Saran's case at pages 845 and 846 (of SCR):(at p.828 of AIR 1980 SC 820) (supra) of the Report : ................................reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly. all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation - when the Constitution mandates for every one equality before and equal protection of the law - may be fatal folly, self-defeating educational technology and anti-national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit - such is the dynamics of social justice which animates the three egalitarian articles of the Constitution.
We agree wholly with these observations made by the learned Judge and we unreservedly condemn wholesale reservation made by some of the State Governments on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation of Art. 14 of the Constitution."
36. The Apex Court in Pradeep Jain (supra) after condemning wholesale reservation made by some State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination directed that such reservation should not exceed the outer limit of 70% of the total number of open seats after taking into account other kinds of reservations validly made. The Court also directed that in any event, at least 30% of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit.
37. The Apex Court in Saurabh Chaudry v. Union of India, AIR 2004 SC 361 dealt with admission to Post Graduate and super specialty course. The Court was concerned only with institutional preference. In paragraph 64, it observed that "the sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means-(1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis." The question was answered by the Constitution Bench of the Apex Court in paragraph 72 as under :-
"72. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr. Pradeep Jain's case (supra) should be reiterated in preference to Dr. Dinesh Kumar's case (supra).
Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest."
38. In another decision of the Apex Court in Indian Medical Association v. Union of India and others, (2011) 7 SCC 179, in paragraph 69, the Apex Court has held as under :-
"69. Thus we find that the exemption granted by the Government of Delhi allowing ACMS to fill 100% of its seats by wards of army personnel violates the basic principles of democratic governance, of the constitutional requirement that executive implement the specific and mandatory policy legislated by the legislature, and violates the provisions of Delhi Act 80 of 2007. In fact, the actions of the Government of Delhi, for the aforesaid reasons are wholly arbitrary, without any basis in law, and ultra vires...."
39. From the aforesaid three decisions of the Apex Court, the law is clear that there can be no absolute or wholesale reservation or preference for candidates of a particular State or absolute institutional preference. For local candidates, the State Government is empowered to make reservation of seats or provide institutional preference, to a reasonable percentage, then only the reservation would be valid. But absolute, wholesale or 100% reservation for local candidates who passed the qualifying examination from institutions in State of Gujarat is impermissible and unconstitutional being violative of Article 14 of the Constitution.
40. At this juncture, we consider it necessary to deal with the Division Bench decisions of this Court where the facts demonstrated 100% reservation in favour of local students of Gujarat completely ousting the students who have obtained essential qualifications from institutions situated outside State of Gujarat had been upheld.
41. A Division Bench of this Court in Ronald Jagdish Thakor v. Gujarat University through Registrar decided on 05.05.2010 in Special Civil Application No.3950 of 2010 was considering a case for admission in M.Sc. (Nursing), a Post Graduate Nursing course which provided preference in admission to candidates graduating from the Gujarat University. There were 20 seats. The petitioner had passed his B.Sc. (Nursing) course from R.K.D.F. Nursing College of Bhopal. Rule 4 provided that selection of candidates for seats will be done category wise on the basis of merit as laid down in order of preference mentioned in Rule 4. Rule 4.1 and 4.3 provided for preference to graduates of Gujarat University and graduates from any other University located in Gujarat State. Rule 4.5 provided about candidates graduating from any other University located outside Gujarat State. First the students graduating from Gujarat University were to be admitted, if any seat was vacant, then students graduating from any other University located in Gujarat State were to be admitted and if still any seat was left vacant, then graduates from any other University located outside State of Gujarat were to be admitted. In all, 48 students appeared in the open examination.
As per merit list, petitioner ought to have been placed at Serial No.12, but since all candidates of Gujarat University were admitted ahead of students from other Universities, the petitioner's name was shown at Serial No.34 of the merit list. Even the name of topper of the open examination Manishaben Utkarsh Modi who had secured 283.50 marks was ranked 30 in the list as she had not passed the qualifying examination from Gujarat University. The University defended the admission of students of Gujarat University on the ground that institutional preference was not impermissible. The Division Bench considered the question as to whether preference means granting admission to all students from Gujarat University before considering students of other local Universities or outside students. The Bench observed that no separate quota of seats was reserved for the students graduating from the Gujarat University or other local universities or for all India students. After relying on various decisions of the Apex Court to find out the meaning of the expression 'preference', the Division Bench held that preference means that other factors being equal, the candidate belonging to the preferential group would be preferred over the others. Mere preference would not mean granting en-block admission ahead of all others. The Division Bench held that Rule 4 would not permit the University to rank all the candidates graduating from Gujarat University en-block ahead of the other candidates and it would not be a case of institutional preference. Such an interpretation of the Rule would not stand the test of Article 14 of the Constitution. The Division Bench further held that by admitting local students ahead of all outside students without prescribing any quota for either of the streams, and that too without prescribing any minimum standard of passing in the open test, would amount to virtual 100% reservation in favour of local students. The Court held that the Rules are neither arbitrary nor invalid but the interpretation of the Rules by the University is defective. The writ petition was allowed and direction was issued to the University to prepare a fresh merit list on the basis of inter-se merit of all candidates. It further directed that only when the merits of two candidates are equal, local students may be ranked high. We are of the opinion that once the Division Bench found that Gujarat University local students being admitted first, ahead of all outside students without prescribing any quota for other local universities or for all India students under Rule 4, would amount to virtual 100% reservation in favour of local students, then the entire Rule 4 with its sub-rules were liable to be struck down being arbitrary and violative of Article 14 of the Constitution.
42. In another Division Bench decision in Sidharth Jagdishbhai Panchal through father Jagdish D Panchal v. Admission Committee for Professional Diploma Course (ACPDC), decided on 23.08.2010 in Special Civil Application No.7406 of 2010, this Court considered the non-admission of the petitioner to the course of Diploma in any Polytechnic Colleges situated within the State of Gujarat. The petitioner had passed his Xth Standard examination from study centre situated in Gujarat which was a National Institute of Open Schooling (NIOS) which is recognized by Gujarat Secondary Education Board at secondary education and senior secondary education level. Various Universities in Gujarat also recognize NIOS course and the certificates issued by NIOS. Gujarat Professional Technical Education Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 was enacted by the Government of Gujarat and to regulate the admission to Diploma courses, Rules known as Professional Diploma Courses (Regulation of Admission and Payment of Fees) Rules, 2008 provided that qualifying examination means the secondary school certificate examination, (standard X) passed with Mathematics, Science and English. Rule 5 of the eligibility for admission prescribed various schools which were recognized for the purposes of the admission. Though Rule 5 provided for admission to students who have studied from the school situated within the State of Gujarat, the issue raised in the writ petition was that though the petitioner had passed standard Xth examination from NIOS, from an institution situated within the State of Gujarat, but under Rule 5 of the Rules, NIOS is not recognized. The State Government agreed to include NIOS in Rule 5 from the next academic session and, therefore, the Court directed the State Government to make necessary amendment in the Rule as per the stand taken by them in their affidavit and consider the case of the petitioner for admission in the current academic year. But Rule 5 was being considered by the Division Bench which limited admissions to the students who had passed the qualifying examination from schools in Gujarat but students from outside Gujarat with no connections whatsoever who did not have their parents residing in Gujarat, were not eligible for admission. The Court refrained from declaring Rule 5 ultravires. We are of the opinion that the Rule 5 deserved to be declared ultravires and violative of Article 14 of the Constitution.
43. In another Division Bench decision in Leena Patel v. State of Gujarat through Secretary and others in Special Civil Application No.10356 of 2010 decided on 13.01.2011, this Court considered the claim of the petitioner for admissions to either Master of Computer Application (MCA) or Master of Business Administration (MBA) as per the merit of the petitioner in Gujarat Common Entrance Test Examination, 2010 and for holding Rule 5(2) of the Master of Computer Application (Regulation of Admission and Payment of Fees) Rules 2008 and Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2008 as arbitrary and unconstitutional. The petitioner had obtained Bachelor of Science (Information Technology) Degree from Mumbai University in the year 2009. She appeared in the entrance test and was declared successful. No call letter was issued to her and on inquiry, it was revealed to her that she could not be admitted in either of the Post Graduate courses because Rule 5 of MCA Rules 2008 and MBA Rules 2008 provide that a student should have passed a qualifying examination from a University situated in Gujarat State or the University situated outside the Gujarat State provided the candidate should have passed the higher secondary school certificate examination (Standard 12 i.e. 10+2 pattern) or its equivalent examination from a School which is located in the State of Gujarat. Since the petitioner had completed her Higher Secondary and Graduation from Mumbai, she was denied admission. The Division Bench considered the decision in Dr. Pradeep Jain's case and Saurabh Chaudry's case and found that the Apex Court had held that the reservation on the basis of a residence requirement and institutional preference exclusively was violative of Article 14 of the Constitution of India. The Division Bench relied on the decisions of Ronald Jagdish Thakore (Supra) and Sidharth Jagdishbhai Panchal (Supra) and Swayamprakash Pande, Medical Officer, Class II v. State of Gujarat and others 2009 (2) GLH 495 and held that limited institutional preference based on region or locality was not ultra vires to Article 14 of the Constitution. The Division Bench observed that Rule 5 of Professional Diploma Courses (Regulation of Admission and Payment of Fees) Rules, 2008 is pari materia to Rule 5 of the MCA/MBA Rules and in paragraph 7 held that Rule 5 was not ultra-vires to Article 14 of the Constitution. We have read Rule 5 of the Rules 2008 in juxtaposition with Rule 5 of the MCA/MBA Rules. We have no hesitation in saying that both the Rules mentioned by the Division Bench were not pari materia.
In Rule 5 of the Professional Diploma Courses (Regulation of Admission and Payment of Fees) Rules, 2008, qualifying examination means the secondary school certificate examination (Standard X) passed. Whereas in MCA/MBA Rules, 2008, graduation was the minimum qualification. Further, under MCA/MBA Rules, it had been provided that admission to a candidate of University situated outside the State of Gujarat would be granted provided the candidate had passed the higher secondary school certificate examination (Standard XII, 10+2 pattern), or its equivalent examination from, (i) the Gujarat Board or (ii) the Central Board of Secondary Education Board etc., provided that the school in which the candidate had studied, should be located in the State of Gujarat, whereas there is no such Rule for admission to Professional Diploma Courses (Regulation of Admission and Payment of Fees) Rules, 2008. The decision relied by the Division Bench in Swayamprakash Pande, Medical Officer, Class II v. State of Gujarat and others 2009 (2) GLH 495 had been misinterpreted. From the aforesaid facts, we are of the opinion that the learned Division Bench committed a serious error in applying the Rules and decisions in Sidharth Jagdishbhai Panchal (Supra) and Ronald Jagdish Thakor which were not applicable. We are of the opinion the Division Bench had not laid down the law correctly.
44. In the Division Bench decision in Parish Priest Catholic Church Manager, St. Xavier's PTC College v. State of Gujarat through Secretary and others in Special Civil Application No.10324 of 2010 decided on 26.04.2011, this Court had the occasion to consider the validity of admissions in PTC course and validity of Rule 4. In this case the petitioner was a minority institution and had been granted permission in 2005 by NCTE to start an English Medium PTC course with intake capacity of 50 students. The Director of Primary Education issued an information brochure containing guidelines for admission in PTC course in the State. It was claimed that there were very few institutes in the State which imparts instructions for PTC in English Medium. Three religious nun who had passed their qualifying Board examination from other States applied for admission. The petitioner institute had forwarded the merit list of the students to the authorities for admission. The authorities directed the petitioner to submit fresh merit list after deleting the names of three nun candidates who had passed the qualifying board examination from other states after studying in schools which are also situate in other States. The petitioner challenged the action of the authorities in directing the petitioner institution to delete the names of three religious nuns on the ground that said candidates have passed qualifying examination from other States, as illegal, arbitrary, unjust, unreasonable, bad in law and violative of constitutional guarantee. The petitioner also challenged that the instructions and guidelines issued by the authorities being violative of Constitutional rights guaranteed under Articles 14, 19(1)(g), and 30 of the Constitution of India. The writ petition was contested by the authorities respondents on the ground that the three nun candidates who were not found eligible for admission passed their qualifying Board examination i.e. standard 12th examination not only from the Board of other State but also from schools outside the State of Gujarat and that therefore, their candidature was not in accordance with the Rules 4.1, 4.1.1, 4.1.2 and 4.1.3 governing admissions in PTC institutes. The Division Bench relying on other Division Bench decisions of this court in Ronald Jagdish Thakor (supra), Sidharth Jadgishbhai Panchal (supra), Leena Patel (supra), held in paragraph 5.4 that according to the Rules in question, the candidates who have passed-out the higher secondary examination or its equivalent from Gujarat Board or CBSE Board or ISCE Board, upon having studied in the schools which are located in the State of Gujarat are held eligible subject to their fulfilling other criteria regarding minimum qualifying marks etc. Thus, it cannot be said that there is absolute reservation in favour of student passing out the examination from the State of Gujarat only. It further held that any absolute reservation, as held in para 6 of the decision in SCA No.10356 of 2010, is not prescribed, but preference is given to the student who has studied in the institution situate in the State of Gujarat subject to fulfillment of the requirement regarding minimum marks, etc. While interpreting similar provision for admission in course of MBA and MCA, the Division Bench held in the aforesaid decision in SCA No.10356 of 2010 that it cannot be said that such provision prescribes absolute reservation. The Division Bench committed a serious error of law in arriving at the aforesaid finding, though all PTC seats would be filled by students who had passed 12th standard from schools in Gujarat completely ousting students from other States. It would be a case of absolute or wholesale reservation. It was not a case of giving preference to students who had passed 12th standard from a school situated in State of Gujarat. The decision is in conflict with the ratio of the decisions of the Apex Court in Pradeep Jain (supra) and Saurabh Chaudhry (supra). This decision does not lay down good law.
45. We are of the considered opinion that answer to the third question is that the decisions of the Division Bench in Ronald Jagdish Thakor v. Gujarat University through Registrar decided on 05.05.2010 in Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010 ; Sidharth Jagdishbhai Panchal through father Jagdish D. Panchal v. Admission Committee for Professional Diploma Course (ACPDC) and others, decided on 23.08.2010 in Special Civil Application No.7406 of 2010 ; Leena Patel v. State of Gujarat through Secretary and others, decided on 13.01.2011 in Special Civil Application No.10356 of 2010 ; Parish Priest Catholic Church Manager, St. Xavier's PTC College v. State of Gujarat through Secretary and another decided on 26.4.2011 in Special Civil Application No.10324 of 2010, are directly in conflict with the ratio of the decisions of the Apex Court in Pradeep Jain (supra) and Saurabh Chaudhry (supra). The aforesaid four decisions of the Division Bench do not lay down the law correctly. In appears that in none of the aforesaid writ petitions the decision of the Apex Court in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others, (2006) 9 SCC 1 had been placed before the court otherwise such serious error would not have occurred. We overrule the aforesaid decisions of the Division Bench passed in writ petitions being, Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010, Special Civil Application No.7406 of 2010, Special Civil Application No.10356 of 2010 and Special Civil Application No.10324 of 2010.
46. An affidavit duly sworn by Mr. Bharat B. Pandit, Deputy Director of Primary Education had been filed. It had been explained that 10th standard pass is the minimum qualification for pre-PTC training course. And 12th standard pass is the minimum qualification for admission to PTC course. In paragraphs 6, 7, 8, 9, 10, 17, 18, 20 and 23 of the affidavit, the Deputy Director had contested the claim of the petitioner and has stated that admission to PTC course are governed by Act 1984 and Rules 1984 as amended and instructions issued by the Education Department. It had also been stated that after the Act 1993 came into force, the State Government amended Rules 1984. However, in paragraph 13 of the affidavit, it has been admitted that the State Government has not framed any Rules under the 1993 Act. It had also been stated in paragraphs 2 and 3 of the affidavit that the State in dealing with admission to PTC course will not refuse the application of the petitioner for admission in PTC course on the ground that the petitioner has not passed 12th standard from Gujarat Secondary Education Board. It had also been stated that a student passing 12th standard from other State Board will be considered as eligible for admission in PTC course, run by the respondent No.4 College and in similar such colleges. The petitioner will not be denied admission on the ground that the petitioner had not passed 12th standard from Gujarat or other Board as referred to in the admission notice. It had also been stated that the State Government will apply the same principle for similarly situated students of other States. However, the petitioner and any other similarly situated students will be required to abide by other conditions and other eligibility criteria for seeking admission in PTC course. The learned counsel for the petitioner has urged that the statement made in paragraphs 2 and 3 of the affidavit is not a bonafide statement and though the case of the petitioner has been contested on merits, in the three affidavits filed by the respondents, the statement made in paragraphs 2 and 3 of the affidavit has been tactfully drafted. He pointed out that it has not been stated in paragraphs 2 and 3 that the petitioner's application or application of students of other States who have passed their 12th standard examination from institutions which are located outside State of Gujarat would be entertained and if they qualify on merit, they would be granted admission for the academic year 2012-13 onwards. He brought to the notice of the Court that examinations of PTC for the year 2011-12 had been held and result is awaited. There is no statement in paragraph 2 and 3 by the respondents that they will admit the petitioner for the academic year 2011-12 and take her examination separately, so that, after passing PTC 1st year examination, she may be admitted to 2nd year PTC course and her precious one year may be saved. Further, no decision of the State Government has been brought on record. Merely the assertions made in paragraphs 2 and 3 of the affidavit by the Deputy Director, Primary Education, would not amount to amending the Act 1984, Rules 1984 and instructions issued on 4.6.2002. The State Government can always deny that the Deputy Director was not authorised to make such statement in paragraph 2 and 3 of the affidavit and it is not binding on the Government. The State Government is required to frame Rules or Regulation in accordance with the 1993 Act and Regulations 2009. No notification or rule had been issued by the Government in line with paragraph 2 and 3 of the affidavit. The learned counsel for the petitioner has placed before us the order passed by Apex Court dated 7.7.2011 in Special Leave to Appeal (Civil) No.4209 of 2011 which was filed by Leena P. Patel challenging the judgment of the Gujarat High Court dated 13.1.2011 in Special Civil Application No.10356 of 2011. Paragraph 4 and 5 of the order passed by the Apex Court is reproduced below :-
"4. When the matter came up today, learned counsel appearing for the respondents 1 to 4 (State, its instrumentalities and the University) submitted that without prejudice to their contentions, and without the order being disturbed, they will consider and allot a seat to the appellant for the academic year 2011-12. Learned counsel for the appellant submitted that the appellant will have no objection if the matter is closed leaving upon the question of law, provided she is given a seat.
5. Recording the said submission, the appeal is disposed of."
47. The learned counsel for the petitioner urged that the only effort of the respondents by making a statement in paragraphs 2 and 3 of the affidavit sworn on 6.5.2012 was to ensure that the question about 100% reservation to the students who have passed their qualifying examination from the institutions situated in Gujarat may not be adjudicated and the right of students who possess 12th pass qualification from institutions situated outside State of Gujarat may not be decided. If the statement made in paragraphs 2 and 3 of the affidavit was bonafide, then the State Government would have issued a notification. We are in agreement with the learned counsel for the petitioner as statement has been made in paragraphs 2 and 3 of the affidavit in a very guarded language without stating that for academic year 2011-12, the petitioner's application for admission would be entertained and she will be admitted in PTC course and her examination will be taken by the respondents. It has also not been stated in the affidavit that for the academic year 2012-13, petitioner and other similarly situated candidates would be permitted to apply and they would be granted admission provided they qualify on merits and they fulfill other conditions.
48. We are also of the considered opinion that the answer to the third question is that in the field of higher education, the eligibility criteria for admission to PTC course had been laid down by the NCTE under its Regulations 2009 and norms and standards. The guidelines issued by NCTE for admission to PTC or equivalent course would be binding on the State Government and the State Government cannot act contrary to the decision taken by NCTE. The State Government had no power after the enforcement of the 1993 Act to decide or lay down the eligibility criteria for admission to PTC course or to take any policy decision or give effect to the provisions of Act 1984 or Rules 1984 as amended or issue instructions which are in direct conflict with the 1993 Act. The decision taken by the State Government to admit only those students in PTC course who had passed 10+2 examination from schools situated within the State of Gujarat excluding students from outside States is contrary to the 1993 Act and Regulation 2009. It amounts to granting 100% or wholesale reservation to local students, who had passed qualifying examination from Gujarat, which is impermissible and is declared to be void and unconstitutional and is struck down for being unreasonable, arbitrary and violative of Article 14 of the Constitution of India.
49. For the reasons given by us while answering the three questions formulated by us, the students who have passed their 12th (10+2) standard examination from institutions situated outside Gujarat shall be accepted for this year as well as for forthcoming years and they shall be admitted to PTC training course in accordance with combined merit list of PTC candidates by the Centralized Admission Committee strictly according to merit of each candidate. This system for admission shall continue till the State Government frames necessary Rules which is in accordance with the 1993 Act and Regulations framed thereunder.
50. For the reasons given by us while answering the three questions, we are of the considered opinion that writ petition deserves to be allowed and a direction is liable to be issued to the respondents to accept the admission form of the petitioner for admission to PTC course in the PTC college of respondent No.4 for the session 2011-2012 for grant of admission to 1st year in PTC college of respondent No.4, and take her examination, and declare her result within a reasonable period, so that her one year may be saved, and if the petitioner is declared successful, she may be admitted to the 2nd year PTC course for the academic session 2012-13 and her examination be taken. However, if it is not possible for the respondents to accept the application form of the petitioner for admission to 1st year PTC course for the academic session 2011-2012, then the petitioner's application for the academic year 2012-2013 be accepted and she be admitted to the PTC training course in an institution imparting education in PTC course, if she fulfills the other condition. The petitioner's application form shall not be rejected on the ground that she or other similarly situated candidates have passed their 12th (10+2) standard examination from an institution situated outside State of Gujarat. A further direction is also liable to be issued to the respondents that in case they are not in a position to admit the petitioner, take her examination within a reasonable period and declare her result, for the academic session 2011-2012, then in that case the respondents shall accept the petitioner's application for admission to 1st year PTC course for the academic session 2012-2013 and also of other similarly situated candidates who have passed the qualifying examinations from institutions situated outside Gujarat and they should be admitted to PTC course, in PTC colleges according to their choice of institution, in accordance with the combined merit list which shall be prepared of the students who have passed the qualifying examination from institutions situated within the State of Gujarat, and the students who have passed from institutions situated outside the State of Gujarat strictly on merits. This system for admission shall continue till the State Government frames Rules in accordance with the National Council for Teacher Education Act, 1993 and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009.
CONCLUSION
51. In the result, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents with the following directions :-
(i). The National Council for Teacher Education Act, 1993 and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009, are binding on the Government of Gujarat.
(ii). It is declared that the Gujarat Educational Institutions (Regulation) Act, 1984, the Gujarat Educational Institutions (Pre-primary and Primary Teachers Training College) Rules, 1984 as amended in 1998 and the instructions issued on 4.6.2002 by the Education Department of the State Government are void and unenforceable under Article 254(1) of the Constitution of India.
(iii). The decision taken by the State Government to admit only those students in PTC course who had passed Higher Secondary School (10+2 pattern) examination or other institutions which impart equivalent qualification situated within the State of Gujarat excluding students from other States is contrary to the National Council for Teacher Education Act, 1993 and National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009 and it amounts to granting 100% or wholesale reservation to local students, who had passed qualifying examination from Gujarat, which is impermissible and is declared to be void and unconstitutional and is struck down for being unreasonable, arbitrary and violative of Article 14 of the Constitution of India.
(iv). The respondents are directed to accept the application form of the petitioner for admission to PTC course for the academic session 2011-2012 for grant of admission to 1st year in PTC college of respondent No.4, and take her examination, and declare her result within a reasonable period, so that her one year may be saved, and the petitioner if declared successful, may be admitted to the 2nd year PTC course for the academic session 2012-13 and her examination be taken.
(v) The respondents are further directed that in case they are not in a position to comply with direction given in paragraph 51 (iv) of this judgment, then in that case the respondents shall accept the petitioner's application for admission to 1st year PTC course for the academic session 2012-2013. Other similarly situated candidates who have passed the qualifying examinations from institutions situated outside Gujarat, should also be admitted to PTC course, in PTC colleges according to their choice of institution, in accordance with the combined merit list which is to be prepared of the students who have passed the qualifying examination from institutions situated within the State of Gujarat and the students who have passed from institutions situated outside the State of Gujarat strictly on merits. This system of admission shall continue till the State Government frames Rules in accordance with the National Council for Teacher Education Act, 1993 and the National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009.
(vi). The decisions of the Division Bench passed in writ petitions being, Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010, Special Civil Application No.7406 of 2010, Special Civil Application No.10356 of 2010 and Special Civil Application No.10324 of 2010 are overruled.
(vii) Rule is made absolute. Parties shall bear their own costs. Sd/-
[V.
M. SAHAI, J.] Sd/-
[D.
H. WAGHELA, J.] Sd/-
[RAVI R. TRIPATHI, J.] Savariya Top