 Full Judgement is | attached ..... 229 Pages Exercise of power by president under Article 143(1) of the Constitution of India |
| Posted on 19 November 2012 by Apurba Ghosh | |
CourtSupreme Court of India BriefIn exercise of powers conferred under Article 143(1) of the Constitution of India, the President of India has on 12th April, 2012, made the present Reference CitationRE: SPECIAL REFERENCE NO.1 OF 2012[Under Article 143(1) of the Constitution of India] O P I N I O N D.K. JAIN, J. [FOR S.H. KAPADIA, CJ, HIMSELF, DIPAK MISRA & RANJAN GOGOI, JJ.] Judgement REPORTABLE IN THE SUPREME COURT OF INDIA ADVISORY JURISDICTION RE: SPECIAL REFERENCE NO.1 OF 2012 [Under Article 143(1) of the Constitution of India] O P I N I O N D.K. JAIN, J. [FOR S.H. KAPADIA, CJ, HIMSELF, DIPAK MISRA & RANJAN GOGOI, JJ.] In exercise of powers conferred under Article 143(1) of the Constitution of India, the President of India has on 12th April, 2012, made the present Reference. The full text of the Reference (sans the annexures) is as follows: "WHEREAS in 1994, the Department of Telecommunication, Government of India ("GOI"), issued 8 Cellular Mobile Telephone Services Licenses ("CMTS Licenses"), 2 in each of the four Metro cities of Delhi, Mumbai, Kolkata and Chennai for a period of 10 years (the "1994 Licenses"). The 1994 licensees were selected based on rankings achieved by them on the technical and financial evaluation based on parameters set out by the GoI in the tender and were required to pay a fixed licence fee for initial three years and subsequently based on number of subscribers subject to minimum commitment mentioned in the tender document and licence agreement. The 1994 Licenses issued by GoI mentioned that a cumulative maximum of upto 4.5 MHz in the 900 MHz bands would be permitted based on appropriate justification. There was no separate upfront charge for the allocation of Spectrum to the licensees, who only paid annual Spectrum usage charges, which will be subject to revision from time to time and which under the terms of the license bore the nomenclature "licence fee and royalty". A copy of the 1994 Licenses, along with a table setting out the predetermined Licence Fee as prescribed by DoT in the Tender, is annexed hereto as Annexure I (Colly). WHEREAS in December 1995, 34 CMTS Licenses were granted based on auction for 18 telecommunication circles for a period of 10 years (the "1995 Licenses"). The 1995 Licenses mentioned that a cumulative maximum of up to 4.4 MHz in the 900 MHz bands shall be permitted to the licensees, based on appropriate justification. There was no separate upfront charge for allocation of spectrum to the licensees who were also required to pay annual spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty" which will be subject to revision from time to time. A copy of the 1995 Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure II (Colly). WHEREAS in 1995, bids were also invited for basic telephone service licenses ("BTS Licenses") with the license fee payable for a 15 year period. Under the terms of the BTS Licenses, a licensee could provide fixed line basic telephone services as well as wireless basic telephone services. Six licenses were granted in the year 1997-98 by way of auction through tender for providing basic telecom services (the "1997 BTS Licenses"). The license terms, inter-alia, provided that based on the availability of the equipment for Wireless in Local Loop (WLL), in the world market, the spectrum in bands specified therein would be considered for allocation subject to the conditions mentioned therein. There was no separate upfront charge for allocation of spectrum and the licensees offering the basic wireless telephone service were required to pay annual Spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty". A sample copy of the 1997 BTS Licenses containing the table setting out the license fees paid by the highest bidder is annexed hereto as Annexure III (Colly). WHEREAS in 1997, the Telecom Regulatory Authority of India Act, 1997 was enacted and the Telecom Regulatory Authority of India (the "TRAI") was established. WHEREAS on 1st April, 1999, the New Telecom Policy 1999 ("NTP 1999") was brought into effect on the recommendation of a Group on Telecom ("GoT") which had been constituted by GoI. A copy of NTP 1999 is annexed hereto as Annexure IV. NTP 1999 provided that Cellular Mobile Service Providers ("CMSP") would be granted a license for a period of 20 years on the payment of a one-time entry fee and licence fee in the form of revenue share. NTP 1999 also provided that BTS (Fixed Service Provider or FSP) Licenses for providing both fixed and wireless (WLL) services would also be issued for a period of 20 years on payment of a one-time entry fee and licence fee in the form of evenue share and prescribed charges for spectrum usage, appropriate level of which was to be recommended by TRAI. The licensees both cellular and basic were also required to pay annual Spectrum usage charges. WHEREAS based on NTP 1999, a migration package for migration from fixed license fee to one time entry fee and licence fee based on revenue share regime was offered to all the existing licenses on 22nd July, 1999. This came into effect on 1st August 1999. Under the migration package, the licence period for all the CMTS and FSP licensees was extended to 20 years from the ate of issuance of the Licenses. WHEREAS in 1997 and 2000, CMTS Licenses were also granted in 2 and 21 Circles to Mahanagar Telephone Nigam Limited ("MTNL") and Bharat Sanchar Nigam Limited ("BSNL") respectively (the "PSU Licenses"). However, no entry fee was charged for the PSU Licenses. The CMTS Licenses issued to BSNL and MTNL mentioned that they would be granted GSM Spectrum of 4.4 + 4.4 MHz in the 900 MHz band. The PSU Licensees were also required to pay annual spectrum usage charges. A copy of the PSU Licenses is annexed hereto as Annexure V (Colly). WHEREAS in January 2001, based on TRAI's recommendation, DoT issued guidelines for issuing CMTS Licenses for the 4th Cellular Operator based on tendering process structured as "Multistage Informed Ascending Bidding Process". Based on a tender, 17 new CMTS Licenses were issued for a period of 20 years in the 4 Metro cities and 13 Telecom Circles (the "2001 Cellular Licenses"). The 2001 Licenses required that the licensees pay a one-time non refundable entry fee as determined through auction as above and also annual license fee and annual spectrum usage charges and there was no separate upfront charge for allocation of spectrum. In accordance with the terms of tender document, the license terms, inter-alia, provided that a cumulative maximum of upto 4.4 MHz + 4.4 MHz will be permitted and further based on usage, justification and availability, additional spectrum upto 1.8 MHz + 1.8 MHz making a total of 6.2 MHz + 6.2 MHz, may be considered for assignment, on case by case basis, on payment of additional Licence fee. The bandwidth upto maximum as indicated i.e. 4.4 MHz & 6.2 MHz as the case may be, will be allocated based on the Technology requirements (e.g. CDMA @ 1.25 MHz, GSM @ 200 KHz etc.). The frequencies assigned may not be contiguous and may not be same in all cases, while efforts would be made to make available larger chunks to the extent feasible. A copy of the 2001 Cellular Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure VI. WHEREAS in 2001, BTS Licenses were also issued for providing both fixed line and wireless basic telephone services on a continual basis (2001 Basic Telephone Licenses). Service area wise one time Entry Fee and annual license fee as a percentage of Adjusted Gross Revenue (AGR) was prescribed for grant of BTS Licenses. The licence terms, inter-alia, provided that for Wireless Access System in local area, not more than 5 + 5 MHz in 824-844 MHz paired with 869-889 MHz band shall be allocated to any basic service operator including existing ones on FCFS basis. A detailed procedure for allocation of spectrum on FCFS basis was given in Annexure-IX of the 2001 BTS license. There was no separate upfront charge for allocation of spectrum and the Licensees were required to pay revenue share of 2% of the AGR earned from wireless in local loop subscribers as spectrum charges in addition to the one time entry fee and annual license fee. A sample copy of the 2001 Basic Telephone License along with a table setting out the entry fees is annexed hereto as Annexure VII. WHEREAS on 27th October, 2003, TRAI recommended a Unified Access Services Licence ("UASL") Regime. A copy of TRAI's recommendation is annexed hereto as Annexure VIII. WHEREAS on 11.11.2003, Guidelines were issued, specifying procedure for migration of existing operators to the new UASL regime. As per the Guidelines, all applications for new Access Services License shall be in the category of Unified Access Services Licence. Later, based on TRAI clarification dated 14.11.2003, the entry fee for new Unified Licensee was fixed same as the entry fee of the 4th cellular operator. Based on further recommendations of TRAI dated 19.11.2003, spectrum to the new licensees was to be given as per the existing terms and conditions relating to spectrum in the respective license agreements. A copy of the Guidelines dated 11.11.2003 is annexed hereto as Annexure IX. WHEREAS consequent to enhancement of FDI limit in telecom sector from 49% to 74%, revised Guidelines for grant of UAS Licenses were issued on 14.12.2005. These Guidelines, inter-alia stipulate that Licenses shall be issued without any restriction on the number of entrants for provision of Unified Access Services in a Service Area and the applicant will be required to pay one time non-refundable Entry, annual License fee as a percentage of Adjusted Gross Revenue (AGR) and spectrum charges on revenue share basis. No separate upfront charge for allocation of spectrum was prescribed. Initial Spectrum was allotted as per UAS License conditions to the service providers in different frequency bands, subject to availability. Initially allocation of a cumulative maximum up to 4.4 MHz + 4.4 MHz for TDMA based systems or 2.5 MHz + 2.5 MHz for CDMA based systems subject to availability was to be made. Spectrum not more than 5 MHz + 5 MHz in respect of CDMA system or 6.2 MHz + 6.2 MHz in respect of TDMA based system was to be allocated to any new UAS licensee. A copy of the UASL Guidelines dated 14.12.2005 is annexed hereto as Annexure X. WHEREAS after the introduction of the UASL in 2003 and until March 2007, 51 new UASL Licenses were issued based on policy of First Come-First Served, on payment of the same entry fee as was paid for the 2001 Cellular Licenses (the "2003-2007 Licenses") and the spectrum was also allocated based on FCFS under a separate wireless operating license on case by case basis and subject to availability. Licensees had to pay annual spectrum usage charges as a percentage of AGR, there being a no upfront charge for allocation of spectrum. A copy of the 2003-2007 License, along with a table setting out the fees payable, is annexed hereto as Annexure XI (Colly). WHEREAS on 28th August 2007, TRAI revisited the issue of new licenses, allocation of Spectrum, Spectrum charges, entry fees and issued its recommendations, a copy of which is annexed hereto as Annexure XII. TRAI made further recommendations dated 16.07.2008 which is annexed hereto as Annexure XIII. WHEREAS in 2007 and 2008, GoI issued Dual Technology Licences, where under the terms of the existing licenses were amended to allow licensees to hold a license as well as Spectrum for providing services through both GSM and CDMA network. First amendment was issued in December, 2007. All licensees who opted for Dual Technology Licences paid the same entry fee, which was an amount equal to the amount prescribed as entry fee for getting a new UAS licence in the same service area. The amendment to the license inter-alia mentioned that initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz was to be allocated in the case of TDMA based systems (@ 200 KHz per carrier or 30 KHz per carrier) and a maximum of 2.5 MHz + 2.5 MHz was to be allocated in the case of CDMA based systems (@ 1.25 MHz per carrier), on case by case basis subject to availability. It was also, interalia, mentioned that additional spectrum beyond the above stipulation may also be considered for allocation after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines/criteria prescribed from time to time. However, spectrum not more than 5 + 5 MHz in respect of CDMS system and 6.2 + 6.2 MH in respect of TDMA based system was to be allocated to the licensee. There was no separate upfront charge for allocation of Spectrum. However, Dual Technology licensees were required to pay Spectrum usage charges in addition to the license fee on revenue share basis as a percentage of AGR. Spectrum to these licensees was allocated 10.01.2008 onwards. WHEREAS Subscriber based criteria for CMTS was prescribed in the year 2002 for allocation of additional spectrum of 1.8 + 1.8 MHz beyond 6.2 + 6.2 MHz with a levy of additional spectrum usage charge of 1% of AGR. The allocation criteria was revised from time to time. A copy of the DoT letter dated 01.02.2002 in this regard is annexed hereto as Annexure XIV. WHEREAS for the spectrum allotted beyond 6.2 MHz, in the frequency allocation letters issued by DoT May 2008 onwards, it was mentioned inter-alia that allotment of spectrum is subject to pricing as determined in future by the GoI for spectrum beyond .2 MHz + 6.2 MHz and the outcome of Court orders. However, annual spectrum usage charges were levied on the basis of AGR, as per the quantum of spectrum assigned. A sample copy of the frequency allocation letter is annexed hereto as Annexure XV. WHEREAS Spectrum for the 3G Band (i.e. 2100 MHz band) was auctioned in 2010. The terms of the auction stipulated that, for successful new entrants, a fresh license agreement would be entered into and for existing licensees who were successful in the auction, the license agreement would be amended for use of Spectrum in the 3G band. A copy of the Notice inviting Applications and Clarifications thereto are annexed hereto and marked as Annexure XVI (Colly). The terms of the amendment letter provided, inter alia, that the 3G spectrum would stand withdrawn if the license stood terminated for any reason. A copy of the standard form of the amendment letter is annexed hereto and marked as Annexure XVII. WHEREAS letters of intent were issued for 122 Licenses for providing 2G services on or after 10 January 2008, against which licenses (the "2008 Licenses") were subsequently issued. However, pursuant to the judgment of this Hon'ble Court dated 2nd February, 2012 in Writ Petition (Civil) No.423 of 2010 (the "Judgment"), the 2008 Licenses have been quashed. A copy of the judgment is annexed hereto and marked Annexure XVIII. WHEREAS the GoI has also filed an Interlocutory Application for clarification of the Judgment, wherein the GoI has placed on record the manner in which the auction is proposed to be held pursuant to the Judgment and sought appropriate clarificatory orders/directions from the Hon'ble Court. A copy of the Interlocutory Application is annexed hereto and marked as Annexure XIX. WHEREAS while the GoI is implementing the directions set out in the Judgment at paragraph 81 and proceeding with a fresh grant of licences and allocation of spectrum by auction, the GoI is seeking a limited review of the Judgment to the extent it impacts generally the method for allocation of national resources by the State. A copy of the Review Petition is annexed hereto and marked as Annexure XX. WHEREAS by the Judgment, this Hon'ble Court directed TRAI to make fresh recommendations for grant of licenses and allocation of Spectrum in the 2G band by holding an auction, as was done for the allocation of Spectrum for the 3G licenses. WHEREAS, in terms of the directions of this Hon'ble Court, GoI would now be allocating Spectrum in the relevant 2G bands at prices discovered through auction. WHEREAS based on the recommendations of TRAI dated 11.05.2010 followed by further clarifications and recommendations, the GoI has prescribed in February 2012, the limit for spectrum assignment in the Metro Service Areas as 2x10MHz/2x6.25 MHz and in rest of the Service Areas as 2x8MHz/2x5 MHz for GSM (900 MHz, 1800 MHz band)/CDMA(800 MHZ band), respectively subject to the condition that the Licensee can acquire additional spectrum beyond prescribed limit in the open market should there be an auction of spectrum subject to the further condition that total spectrum held by it does not exceed the limits prescribed for merger of licenses i.e. 25% of the total spectrum assigned in that Service Area by way of auction or otherwise. This limit or CDMS spectrum is 10 MHz. WHEREAS, in view of the fact that Spectrum may need to be allocated to individual entities from time to time in accordance with criteria laid down by the GoI, such as subscriber base, availability of Spectrum in a particular circle, inter-se priority depending on whether the Spectrum comprises the initial allocation or additional allocation, etc., it may not always be possible to conduct an auction for the allocation of Spectrum. AND WHEREAS in view of the aforesaid, the auctioning of Spectrum in the 2G bands may result in a situation where none of the Licensees, using the 2G bands of 800 MHz., 900 MHz and 1800 MHz would have paid any separate upfront fee for the allocation of Spectrum. AND WHEREAS the Government of India has received various notices from companies based in other countries, invoking bilateral investment agreements and seeking damages against the Union of India by reason of the cancellation/threat of cancellation of the licenses. AND WHEREAS in the circumstance certain questions of law of far reaching national and international implications have arisen, including in relation to the conduct of the auction and the regulation of the telecommunications industry in accordance with the Judgment and FDI into this country in the telecom industry and otherwise in other sectors. Given that the issues which have arisen are of great public importance, and that questions of law have arisen of public importance and with such far reaching consequences for the development of the country that it is expedient to obtain the opinion of the Hon'ble Supreme Court of India thereon. NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely: Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions? Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches? Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy? Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources? Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements? Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz. (i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008? (ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone? And specifically (iii) Whether the telecom licences granted in 1994 would be affected? (iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected? (v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees? (vi) Whether dual technology licences granted in 2007 and 2008 would be affected? (vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date? Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to: (i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price? (ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard? (iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or 1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)? Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment? NEW DELHI; DATED: 12 April 2012 PRESIDENT OF INDIA" 2. A bare reading of the Reference shows that it is occasioned by the decision of this Court, rendered by a bench of two learned Judges on 2nd February, 2012 in Centre for Public Interest Litigation & Ors. Vs. Union of India & Ors. (for brevity "2G Case"). 3. On receipt of the Reference, vide order dated 9th May, 2012, notice was issued to the Attorney General for India. Upon hearing the learned Attorney General, it was directed vide order dated 11th May, 2012, that notice of the Reference shall be issued to all the States through their Standing Counsel; on Centre for Public Interest Litigation (CPIL) and Dr. Subramanian Swamy (petitioners in the 2G Case); as also on the Federation of Indian Chambers of Commerce and Industry (FICCI) and Confederation of Indian Industry (CII), as representatives of the Indian industry. On the suggestion of the learned Attorney General, it was also directed (though not recorded in the order), that the reference shall be dealt with in two parts viz. in the first instance, only questions No. 1 to 5 would be taken up for consideration and the remaining questions shall be taken up later in the light of our answers to the first five questions. 4. At the commencement of the hearing of the Reference on 10th July, 2012, a strong objection to the maintainability of the Reference was raised by the writ petitioners in the 2G Case. Accordingly, it was decided to first hear the learned counsel on the question of validity of the Reference. SUBMISSIONS ON MAINTAINABILITY: 5. Mr. Soli Sorabjee, learned senior counsel, appearing for CPIL, strenuously urged that in effect and substance, the Reference seeks to question the correctness of the judgment in the 2G Case, which is not permissible once this Court has pronounced its authoritative opinion on the question of law now sought to be raised. The learned counsel argued that reference under Article 143(1) of the Constitution does not entail appellate or review jurisdiction, especially in respect of a judgment which has attained finality. According to the learned counsel, it is evident from the format of the Reference that it does not express or suggest any 'doubt' as regards the question of fact or law relating to allocation of all natural resources, a ine-qua-non for a valid reference. In support of the proposition, learned counsel placed reliance on observations in earlier references – In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 And The Part C States (Laws) Act, 19502, In Re: The Berubari Union and Exchange of Enclaves Reference Under Article 143(1) of the Constitution of India3, In Re: The Kerala Education Bill, 195,7 In Reference Under Article 143(1) Of The Constitution of India4, Special Reference No.1 of 19645 (commonly referred to as "Keshav Singh"), In Re: Presidential Poll, In Re: The Special Courts Bill, 1978, In the Matter of : Cauvery Water Disputes Tribunal (hereinafter referred to as "Cauvery-II") and Special Reference No.1 of 1998 Re. 2 [1951] S.C.R. 747 3 [1960] 3 S.C.R. 250 6. Next, it was contended by the learned senior counsel that if for any reason, the Executive feels that the 2G Case does not lay down a correct proposition of law, it is open to it to persuade another bench, before which the said judgment is relied upon, to refer the issue to a larger bench for reconsideration. In short, the submission was that an authoritative pronouncement, like the one in the 2G Case, cannot be short circuited by recourse to Article 143(1). 7. Learned counsel also contended that the Reference as framed is of an omnibus nature, seeking answers on hypothetical and vague questions, and therefore, must not be answered. Commending us to In Re: The Special Courts Bill, 1978 (supra) and several other decisions, learned counsel urged that a reference under Article 143(1) of the Constitution for opinion has to be on a specific question or questions. It was asserted that by reason of the construction of the terms of Reference, the manner in which the questions have been framed and the nature of the answers proposed, this Court would be entitled to return the Reference unanswered by pointing out the aforesaid impediments in answering it. Lastly, it was fervently pleaded that if the present Reference is entertained, it would pave the way for the Executive to circumvent or negate the effect of inconvenient judgments, like the decision in the 2G Case, which would not only set a dangerous and unhealthy precedent, but would also be clearly contrary to the ratio of the decision in Cauvery II. 8. Mr. Prashant Bhushan, learned senior counsel, while adopting the arguments advanced by Mr. Soli Sorabjee, reiterated that from the format of questions No.1 to 5, as well as from the review petition filed by the Government in the 2G Case, it is clear that the present Reference seeks to overrule the decision in the 2G Case by reading down the direction that allowed only 'auction' as the permissible means for allocation of all natural resource, in paragraphs 94 to 96 of the 2G Case, to the specific case of spectrum. It was argued by the learned counsel that it is apparent from the grounds urged in the review petition filed by the Government that it understood the ratio of the 2G Case, binding them to the form of procedure to be followed while alienating precious natural resources belonging to the people, and yet it is seeking to use the advisory jurisdiction of this Court as an appeal over its earlier decision. It was contended that even if it be assumed that a doubt relating to the disposal of all natural resources has arisen on account of conflict of decisions on the point, such a conflict cannot be resolved by way of a Presidential reference; that would amount to holding that one or the other judgments is incorrectly decided, which, according to the learned counsel, is beyond the scope of Article 143(1). Learned counsel alleged that the language in which the Reference is couched, exhibits mala fides on the part of the Executive. He thus, urged that we should refrain from giving an opinion. 9. Dr. Subramanian Swamy, again vehemently objecting to the maintainability of the Reference, on similar grounds, added that the present Reference is against the very spirit of Article 143(1), which, according to the constituent assembly debates, was meant to be invoked sparingly, unlike the case here. It was pleaded that the Reference is yet another attempt to delay the implementation of the directions in the 2G Case. Relying on the decision of this Court in Dr. M. Ismail Faruqui & Ors. Vs. Union of India & Ors.10, Dr. Swamy submitted that we will be well advised to return the Reference unanswered. 10. Mr. G.E. Vahanvati, the learned Attorney General for India, defending the Reference, submitted that the plea egarding non-maintainability of the Reference on the ground that it does not spell out a 'doubt', is fallacious on a plain reading of the questions framed therein. According to him, Article 143(1) uses the word 'question' which arises only when there is a 'doubt' and the very fact that the resident has sought the opinion of this Court on the questions posed, shows that there is a doubt in the mind of the Executive on those issues. It was stressed that merely because the Reference does not use the word 'doubt' in the recitals, as in other cited cases, does not imply that in substance no doubt is entertained in relation to the mode of alienation of all natural resources, other than spectrum, more so when the questions posed for opinion have far reaching national and international implications. It was urged that the content of the Reference is to be appreciated in proper perspective, keeping in view the context and not the form. 11. It was urged that maintainability and the discretion to decline to answer a reference are two entirely different things. The question of maintainability arises when exfacie, the Presidential reference does not meet the basic requirements of Article 143(1), contrastive to the question of discretion, which is the power of the Court to decline to answer a reference, for good reasons, once the reference s maintainable. In support of the proposition, reliance was placed on In Re: The Kerala Education Bill, 1957 (supra), Keshav Singh and In Re: The Special Courts Bill, 1978 (supra). According to the learned counsel, the question as to whether the reference is to be answered or not, is not an aspect of maintainability, and is to be decided only after hearing the reference on merits. 12. Learned Attorney General, while contesting the plea that in a reference under Article 143(1), correctness or otherwise of earlier decisions can never be gone into, submitted that in a Presidential reference, there is no constitutional embargo against reference to earlier decisions in order to clarify, restate or even to form a fresh opinion on a principle of law, as long as an inter partes decision is left unaffected. In support of the contention that in the past, references have been made on questions in relation to the correctness of judgments, learned counsel placed reliance on the decisions of this Court In Re: The Delhi Laws Act, 1912 (supra), Special Reference No.1 of 1998 (supra), Keshav Singh (supra) and of the Privy Council In re Piracy Jure Gentium11. It was asserted that it has been repeatedly clarified on behalf of the Executive that the decision in the 2G Case has been accepted and is not being challenged. The Reference was necessitated by certain observations made as a statement of law in the said judgment which require to be explicated. Referring to certain observations in Re: The Berubari Union and Exchange of Enclaves (supra), learned counsel submitted that this Court had accepted that a reference could be answered to avoid protracted litigation. Check the full judgment in the attached file.... Attached File : 142583_3795_sc_article_143.pdf downloaded 3 times |
| | No recognition can be granted to any institution for conducting teacher training course unless fulfillment of conditions laid in Sections 14(3) or 15(3) read with Regulations 7 and 8 |
| Posted on 19 November 2012 by Apurba Ghosh | |
CourtSupreme Court of India BriefAcquisition of knowledge and obtaining of necessary training for imparting education have their immense signification. As C. immons would like to put it "The secret of successful teaching is to teach accurately, thoroughly, and earnestly" and one may fruitfully add that accuracy and thoroughness can be achieved by cultivated education, matured training and keen intellect. That is why teaching becomes a teacher's passion and religion. A good teacher, in a way, represents country's orderly civilization. A teacher is expected to kindle interest in the taught by method of investigation, incessant implantation of knowledge and demonstration of experience that is replete with intellectual pragmatism. A student who is keen on getting training has to keep in mind the concept of reason, conception of logic and sanctity of rationality. He is expected to distance himself from habitual disobedience and unfettered feeling, for a civilized society which is governed by Rule of Law does not countenance such characteristics. The aspiration to become a teacher after obtaining training requires these qualities as they constitute the base on which the superstructure is built. CitationNational Council for Teacher Education and another. ... Appellants Versus Venus Public Education Society and others ...Respondents Judgement Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO . 7749 OF 2012 (Arising out of S.L.P. (Civil) No. 11385 of 2012) National Council for Teacher Education and another. ... Appellants Versus Venus Public Education Society and others ... Respondents J U D G M E N T Dipak Misra , J . Leave granted. 2. Acquisition of knowledge and obtaining of necessary training for imparting education have their immense signification. As C. immons would like to put it "The secret of successful teaching is to teach accurately, thoroughly, and earnestly" and one may fruitfully add that accuracy and thoroughness can be achieved by cultivated education, matured training and keen intellect. That is why teaching becomes a teacher's passion and religion. A good teacher, in a way, represents country's orderly civilization. A teacher is expected to kindle interest in the taught by method of investigation, incessant implantation of knowledge and demonstration of experience that is replete with intellectual pragmatism. A student who is keen on getting training has to keep in mind the concept of reason, conception of logic and sanctity of rationality. He is expected to distance himself from habitual disobedience and unfettered feeling, for a civilized society which is governed by Rule of Law does not countenance such characteristics. The aspiration to become a teacher after obtaining training requires these qualities as they constitute the base on which the superstructure is built. 3. Importance of teachers and their training, significance of qualified teachers in schools and colleges and their centripodal role in building of the nation have been highlighted in Ahmedabad St. Xavier's College Society v. State of Gujarat, Andhra Kesari Educational Society v. Director of School Education, State of Maharashtra v Vikas Sahebrao Roundale, St. John's Teachers Training Institute (for Women) v. State of T.N.and N.M. Nageshwaramma v. State of A.P., and recently reiterated in Adarsh Shiksha Mahavidyalaya and others v. Subhash Rahangdale and others. 4. It is to be clearly stated that an institution that is engaged or interested in getting involved in imparting a course for training has to obey the command of law in letter and spirit. There cannot be any deviation. But, unfortunately, some of the institutions flagrantly violate the norms with adamantine audacity and seek indulgence of the court either in the name of mercy or sympathy for the students or financial constraint of the institution or they have been inappropriately treated by the statutory regulatory bodies. None of these grounds justify deviation. The case at hand graphically depicts deviations but the High Court putting the blame on the statutory authority has granted relief to the respondent institution which is impermissible. 5. The factual exposition of the present litigation demonstrably reflects the combat between the truth and falsehood, battle between justice and injustice, the contestation between the accord and discord, the collision between fairness and manipulation, the scuffle betwixt the sacrosanctity of the majesty of law and its abuses and the clash between the mandated principles and invocation of sympathy. Such a controversy emerges because majesty, sanctity and purity of law have been corroded and truth, however, relative it may be in the mundane world, has its own command and the same has been deliberately guillotined forgetting the fundamental fact that none can afford to build a castle in Spain in the realm of truth. It is worthy to note that justice in its connotative expanse engulfs the liberalism of an ocean, the magnanimity of the Sun, the sternness of a mountain, the simplicity of a saint, the austerity of a Spartan and the humility of a river. The concept of justice has to remain embedded in spite of adversities. It should remain unshaken, unterrified, unperturbed and loyal to the Rule of Law. In the case at hand, as a maladroit effort has been made to give an indecent burial to the command of law and pave the path of injustice, the same has to be dealt with sternly sans sympathy. 6. Presently to the factual narration. The respondent-society submitted an application on 27.10.2009 to the Western Regional Committee (for short "the WRC") of National Council for Teacher Education (for brevity "the NCTE") for grant of recognition for the purpose of conducting D.El.Ed. course from the academic session 010-11. On receipt of the said application the WRC, after scrutiny of the same, issued a communication dated 10.2.2010 to remove certain deficiencies, namely, the institution had submitted the lease deed issued by Gwalior Development Authority in favour of the Society for a period of thirty years but the same was not certified by the competent authority; that it had submitted copy of the building plan approved by Nagar Nigam, Gwalior meant for school purposes nd not for the college; that the land use certificate issued by the competent Government authority was not submitted; that the building completion certification from the competent Government authority was not filed; that the encumbrance certificate from the competent Government authority was not submitted; and that necessary undertaking in the prescribed format was not enclosed. The respondent institution was advised to remove the deficiencies within a span of sixty days. It was also required to submit a reply pertaining to the deficiencies pointed out by the WRC. The respondent submitted its reply on 20.3.2010 and the same was considered in the 133rd meeting of the WRC held on 20-21.04.2010. On 11.5.2010 the WRC informed the respondent that it would conduct an inspection for D.El.Ed. course for the academic session 2010-11 on a date between 21.5.2010 to 30.5.2010. The visiting team carried out the inspection and submitted its report to the WRC which, in its 136th meeting held on 5-7.6.2010, decided to issue a show cause notice under Section 14(3)(b) of the National Council for Teacher Education Act, 1993 (for brevity 'the 1993 Act') and, accordingly, a show cause notice was issued on 19.6.2010 requiring the respondent to file its representation within twenty one days. The reply to show cause notice was received on 7.7.2010 and the WRC considered the same and took the decision on 20- 21.7.2010 to refuse recognition on the ground that the approved building plan submitted by the college showed a square building with ground and two floors, whereas the videograph showed the building was rectangular and having ground and one floor. The said decision was communicated vide order dated 3.8.2010 whereunder the WRC refused recognition in exercise of power under Section 14(3)(b) of the 1993 Act. 7. As the factual matrix further gets unfolded, the respondent preferred an appeal on 29.9.2010 under Section 18 of the 1993 Act and the appellate authority by order dated 10.11.2010 opined as follows: - "AND WHEREAS Shri Vivek Gupta, President, Venus Public Education Society, Gwalior, Madhya Pradesh presented the case of the appellant institution on 20.10.2010. In the appeal and during personal presentation, it was submitted that there was not at all any mismatch between the approved plan and videography. The building with round and two floors was constructed in the same shape according to the building plan which was also proved by the completion certificate. The similarity was also proved with the relevant clip of the videography which was submitted wherein the building was visible with ground and two floors with the visiting team. The position of the existing building with ground plus two floors was also proved by the photographs of the building taken from different angles. The ground taken by the WRC that the building was square and rectangular was an after thought which was totally unlawful. The WRC did not communicate such type of objection earlier. The building was more than sufficient and fulfills the norms and standards of the NCTE. AND WHEREAS the Council noted that the VT report did not indicate the dimensions of the rooms as well as the total built up area available for the proposed course. The report also did not contain an essential data sheet in which the particulars with regard to land and built up area details are to be filled. It merely stated the infrastructural facilities were as per the NCTE norms. Further the photographs annexed with the appeal do not confirm to the VCD available in the WRC's file. In view of this the Council came to the conclusion that an inspection of the institution may be conducted by the NCTE Hqrs. for taking a final decision in the appeal." On the basis of the aforesaid order a team was constituted which submitted the report and eventually, after perusal of the report, the NCTE, on 11.3.2011, passed the following order:- "AND WHEREAS the Council noting that the report of the visiting team from the Hqrs. of the Council has clarified the position, came to the conclusion that the appeal deserves to be accepted and the order of the WRC reversed with a direction to process the case further on merits. AND WHEREAS after perusal of documents, memorandum of appeal, affidavit and after considering oral arguments advanced during the hearing, the Council reached the conclusion that there was adequate ground to accept the appeal and reverse the WRC's order dated 03.08.2010 with the direction to the WRC to process the case further on merits. Accordingly, the appeal was accepted and the order of the WRC dated 03.08.2010 reversed." 8. After the appeal was disposed of, the WRC decided to constitute a visiting team. In the meantime the respondent referred Writ Petition No. 4541 of 2011 for issue of writ of mandamus to the NCTE to grant recognition for the academic session 2010-11 for D.El.Ed. course. During the pendency of the writ petition, on 22.7.2011 the WRC decided to conduct further inspection between 22.7.2011 to 30.7.2011. The inspecting team visited the respondent institution on 27.7.2011 and submitted its report to the WRC. The report indicated that a functionary of the Society told the team that as the matter was subjudice, the WRC had no authority to inspect. However, the team went to the institution and took photographs of the building. When the matter came up before the High Court on 28.7.2011, it, after narrating the chronological events and the order passed by the appellate authority, issued the following directions: - "(i) That the decision of the Respondent No. 1 for inspection of the petitioner institution vide letter dated 22.7.2011 is hereby quashed; (ii) The respondent is directed to consider the case of the petitioner for grant of recognition in accordance with the order passed by Appellate Authority dated 11.3.2011. (iii) The case of the petitioner shall be considered for grant of recognition within a period of two weeks from the date of receipt of a copy of this order." 9. As the order was not complied with within the stipulated time, the respondent preferred Writ Petition No. 5776 of 2011. The High Court disposed of the same by observing that the grievance of the petitioner was that in spite of direction issued by the court in the earlier writ petition, the respondents had yet not complied with the direction and for the aforesaid purpose, the petitioner was at liberty to file a contempt petition. The High Court further observed that it was expected that the respondents shall obey the direction issued by the court in W.P. C No. 4541/2011. 10. As is perceptible, the WRC in its 154th meeting held on 11- 12.9.2011 considered the matter and vide order dated 22.9.2011 issued a "letter of intent" for grant of recognition for D.El.Ed. course under clause 7(9) of National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009 (for short "2009 Regulations"). The relevant part of the said letter of intent reads as follows: - "3. Before grant of formal recognition under Regulation 7(11) of the NCTE Regulations 2009, is considered, you are requested to submit the following: (i) The institution shall initiate the process of appointments of qualified staff as per Policy of State Government or University Grants Commission or University and ensure that the staff or faculty is appointed as per the NCTE norms within two months. (in case of M.Ed. six months). The Institute shall submit the list of faculty as approved by the affiliating body to the Western Regional Committee. An affidavit on the enclosed format of Rs.100/- Non- Judicial Stamp Paper from each faculty member appointed are to be submitted. (ii) The institute shall launch its own website covering interalia, the details of the institution, its location, name of the course applied for with intake, availability of physical infrastructural (land, building, office, class rooms and other facilities/amenities), infrastructural facilities (laboratory, photographs, Permanent Account Number (PAN) or Unique Identity Number (UIN) of the teacher educator whenever issued by the NCTE), for information of all concerned. The institution shall also make available on its website information relating to: i. Sanctioned programmes along with annual intake in the institution. j. Name of faculty and staff in full as mentioned in school certificate along with their qualification , scale of pay and photograph. k. Name o f faculty Members who left or joined during the last quarter. l. Names o f students admitted during the current session alongwith qualification , percentage of marks in the qualifying examination and in the entrance test , if any , date o f admission etc . m. Fee charged from students n. Facilities added during the last summer. o. Number of books in the library, journals subscribed to and addition , if any , in the last quarter. p. The institution shall be free to post additional relevant information, if it so desires. (iii) The institution shall submit FDR of Rs.500 Lakhs towards Endowment Fund and Rs.300 Lakhs towards reserve fund in the joint name of authorised representative of the management and the Regional Director, WRC, NCTE and the same shall be maintained perpetually by way of renewal of FDR's at the intervals of every five years. The FDRs submitted by the institution are returned herewith for conversion/renewal (this time to be added in case FDRs are not in the office). 4. Any wrong or incomplete information on website shall render the institution liable for withdrawal of recognition, under the Act of NCTE. 5. Admission should not be made until formal recognition order under Clause 7(11) of the NCTE (Recognition, Norms and Procedures) Regulation, 2009 is issued by Western Regional Committee , NCTE and affiliation is obtained from the University/examining body concerned. 6. You are advised to comply the above requirement before formal recognition is considered under regulation 7(11) of NCTE (Recognition, Norms and Procedures) Regulation, 2009 under section 14(3)(a) of the Act." [emphasis supplied] 11. Be it noted, in the meantime the respondent had filed Contempt Petition No. 677 of 2011 for non-compliance of order dated 28.7.2011 passed in Writ Petition No. 4541 of 2011. On 28.9.2011 a submission was put forth that as the court had decided to grant recognition to the respondent-institution, an interim direction should be issued to admit the students for D.Ed. course because after 30.9.2011 it would not be able to admit the students. The High Court, dealing with the said submission, opined as follows: - "In our opinion, no such interim direction can be issued in favour of the petitioner vide clause 3 of the letter, the petitioner has been directed to submit certain information and documents and that has to be verified by the NCTE. Even apart, in a contempt matter, by way of interim direction, a relief could not be granted. However, we observe that if the petitioner is eligible, the authority shall consider the case of the petitioner on 30th September, 2011." 12. It is worthy to note that the WRC was to file the reply within three weeks. During the pendency of the contempt petition, the respondent preferred Writ Petition No. 6674 of 2011 for grant of recognition for academic session 2011-12 for D.El.Ed. course. The High Court, vide order dated 30.9.2011, directed the Regional Director of the WRC to remain present and explain as to why the decision had not been taken in regard to grant of recognition of the respondent institution. As is perceived, the WRC vide order dated 27.10.2011 issued an order of recognition. The relevant portion of the same is reproduced herein below: - "4. ....... the institution is required to comply with al l post-recognition conditions enumerated from clause 8 (11) to Clause 8(16) o f NCTE (Recognition, Norms and Procedures) Regulations 2009. 6. The institution shal l make admission only after it obtains affiliation from the examining body in terms o f clause 8(12 ) o f the NCTE (Recognition Norms and Procedures ) Regulation, 2009 for the academic session ......... 7. The institution/permission will operate for 2012-13 only if the requirement of 200 teaching days in the session is fulfilled as per calendar of the university/affiliating body." [emphasis supplied] 13. Being grieved by the aforesaid order the respondent preferred Writ Petition No. 7664 of 2011 with a prayer to command the NCTE to grant recognition from the academic session 2011-12 for D.El.Ed. course or to treat the recognition dated 27.10.2011 for the academic session 2011-12 instead of 2012-13. The High Court dealt with the said writ petition along with the contempt petition and, after referring to its earlier order passed in Writ Petition No. 4541 of 2011, the chronology of events, the issue of "letter of intent" and eventual grant of recognition, concluded as under: - "8. In this view of the matter, in our opinion, the petitioner is entitled to have recognition for the academic session 2011-12 also because the case of the petitioner was pending before the Western Regional Committee and in pursuance to the directions of the Court dated 28.07.2010 passed in writ petition No. 4541/2010, it was obligatory on the part of the respondents to include the claim of the petitioner for recognition from the academic session 2011-12 also. In our opinion, the respondents have deliberately not included the same due to pendency of the Contempt Proceeding and other proceedings." 14. After so stating the Bench disposed of the contempt petition and the writ petition by directing that in the recognition order dated 27.10.2011 it shall be added that the institution was entitled for recognition for the D.El.Ed. course with an annual intake of 50 students for academic session 2011-12 also. The said order is the subject-matter of assail in this appeal. 15. The thrust of the matter is whether the High Court by the impugned order passed on 7.12.2011 could have issued a direction as has been stated hereinabove. 16. It is submitted by Mr. Amitesh Kumar, learned counsel for the appellants that the order of recognition passed in favour of the respondent was conditional and there was a clear stipulation that admission should not be made until formal recognition under clause 7(11) of the 2009 regulations is issued by the WRC and ffiliation is obtained from the University/examining body. That apart, the order of recognition dated 27.10.2011 clearly laid a postulate that the institution shall make admission only after it obtains affiliation from the examining body in terms of clause 8(12) of 2009 Regulations for the academic session and, therefore, the High Court has fallen into error by holding that it was obligatory on the part of the NCTE to include the aim of the respondent for recognition for the academic session 2011-12 as the same was not deliberately done. The learned counsel would submit the direction given by the High Court that the institution was entitled for recognition with annual intake of 50 students for academic session of 2011-12 also is legally impermissible inasmuch as the institution had not fulfilled the NCTE norms and further the recognition could not have been made retrospectively effective. 17. Mr. Varun Thakur, learned counsel appearing for the respondents, per contra, would contend that the WRC had acted mala fide in constituting the inspection team and after the High Court quashed the same it was obligatory on its part to confer recognition without any delay. It is canvassed by him that the appellant under the circumstances was compelled to admit the students and, therefore, the students who have been admitted for the academic session 2010-11 should be allowed to undertake the examinations in respect of added intake seats as directed by the High Court. It is vehemently proponed by him that the educational institutions cannot remain at the total mercy of the WRC and such an attitude on the part of the WRC is likely to lead to anarchy and a state of uncertainty which would corrode the financial backbone of the educational societies that are devoted to imparting education. It is also urged by him that such a situation would smother the legitimate expectations of the students. 18. Mrs. Vibha Datta Makhija, learned counsel appearing for respondent No. 2, M.P. Board of Secondary Education, has contended that it is obligatory on the part of the Board to verify whether an educational institution has obtained recognition from the NCTE and affiliation from the Board and then only the said institution can admit the students, but in the case at hand as the respondent No. 1 has admitted the students without recognition and affiliation, they cannot be permitted to appear in the examination and conferment of such privilege would destroy the fundamental fibre of the education system. 19. At this juncture, we may fruitfully refer to Section 14 of the 1993 Act which deals with recognition of institutions offering course or training in teacher education. It reads as follows: - "14. Recognition of institutions offering course or training in teacher education. – (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations: Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee. (2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed. (3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall – (a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfills such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) if it is of the opinion that such institution does not fulfill the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing: Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the institution concerned for making a written representation. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under subsection (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (6) Every examining body shall, on receipt of the order under sub-section (4) – (a) grant affiliation to the institution, where recognition has been granted; or (b) cancel the affiliation of the institution, where recognition has been refused." 20. Section 32 of the Act empowers the council to make regulations not inconsistent with the provisions of the Act and rules ramed thereunder generally to carry out under the provisions of the Act. Sub-section (2)(d) provides for the norms, guidelines and standards in respect of certain categories of employees who are to be employed in the institution. The said provision reads as follows:- "(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely— (a) .......... (b) .......... (c) .......... (d) the norms, guidelines and standards in respect of — (i) the minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12; (ii) the specified category of courses or training in teacher education under clause (e) of Section 12; (iii) starting of new courses or training in recognised institutions under clause (f) of Section 12; (iv) standards in respect of examinations leading to teacher education qualifications referred to in clause (g) of Section 12; (v) the tuition fees and other fees chargeable by institution under clause (h) of Section 12; (vi) the schemes for various levels of teachers education, and identification of institutions for offering teacher development programmes under clause (l) of Section 12;" 21. It is apt to note that in exercise of the aforesaid power, the NCTE has, from time to time, framed certain regulations. Initially, regulations were framed in the year 1995. Thereafter in 2002, 2005, 2007, and the latest one in 2009 have been framed. 22. The lis in the present case is governed by 2009 Regulations. Clause 5(5) of 2009 Regulations provides as follows:- 5(5) All applications received on-line on or before the 31st day of the October of the year shall be processed for the next academic session and final decision, either recognition granted or refused, shall be communicated to the applicant on or before the 15th day of May of the succeeding year." 23. On a perusal of the said Regulation, it is clear as noon day that recognition can only be granted for the next academic session. Regulation 7(9) provides for issue of "letter of intent". The said regulation is as follows: - "7(9) The Institution concerned shall be informed through a letter of intent, regarding the decision for grant of recognition or permission subject to appointment of qualified faculty members before the commencement of the academic session. The letter of intent issued under this clause shall not be notified in the Gazette but would be sent to the Institution and the affiliating body with the request that the process of appointment of qualified staff as per policy of State Govt. or University Grants Commission or University may be initiated and the Institution may be provided all assistance to ensure that the staff or faculty is appointed as per National Council for Teacher Education Norms within two months. The Institution shall submit the list of the faculty, as approved by the affiliating Body, to the Regional Committee." 24. Regulation 7(9) stipulates what the institution is required to do after receipt of the "letter of intent". Regulation 7(11) of the 2009 Regulations provides when a formal order of recognition is to be issued. The said Regulation is as follows: - "7(11) The institution concerned, after appointing the requisite faculty or staff as per the provisions of sub-regulation (9) and after fulfilling the conditions under sub-regulation (10), shall formally inform the Regional Committee concerned that the faculty has been appointed as per National Council for Teacher Education Norms and has been approved by the affiliating body. The letter granting approval for the selection or appointment of faculty shall also be provided by the institution to the Regional Committee with the document establishing that the Fixed Deposit Receipt of Endowment Fund and Reserve Fund have been converted into a joint account. The Regional Committee concerned shall then issue a formal order of recognition which shall be notified as per provision o f the National Council for Teacher Education Act." [emphasis added] 25. Regulations 8(1) and 8(12) of the 2009 Regulations which deal with norms and standards being in a composite compartment are quoted below: - "8(1) An institution must fulfill all the prescribed conditions pertaining to norms and standards as prescribed by National Council for Teacher Education for conducting course or training in teacher education. These norms, inter-alia, cover conditions relating to financial resources, accommodation, library, laboratory, other physical infrastructure, qualified staff including teaching and non-teaching personnel etc. (12) The University or Examining Body shall grant affiliation only after issue of the formal recognition order under sub-regulation (11) of Regulation 7 o f these Regulations. Further, admissions by the institution shall be made only after affiliation by the University or Affiliating body and as per the State policy." [emphasis supplied] 26. On a keen scrutiny of Section 14 and the aforesaid Regulations it is vivid that the university or examining body is required to issue letter of affiliation after formal recognition under sub-regulation (11) of Regulation 7 of the 2009 Regulations is issued. It is also clear that certain obligations are to be carried out by the institution after letter of intent is received. It is clear as a cloudless sky that the letter of intent was communicated to the institution as well as to the affiliating body with a request that the process of appointment of qualified staff as per the policy of the State Government or University Grants Commission or university may be initiated and the institution may be provided all assistance to ensure that the staff or faculty is appointed as per the norms of the NCTE within two months. It was obligatory on the part of the institution to submit the list of the faculty, as approved by the affiliating body, to the Regional Committee. Thus understood, the letter of intent laid down the conditions which were to be fulfilled by the institution. The said letter was issued on 22.9.2011 and the formal order of recognition was issued on 27.10.2011. Clause 6 of the same clearly stipulates that the institution shall make admission only after it obtains its affiliation from the examining body in terms of clause 8(12) of the 2009 Regulations. Clause 8(12), which has been reproduced hereinabove, clearly lays a postulate that the university or the examining body shall grant affiliation only after issue of formal recognition order under subclause (11) of Regulation 7 and thereafter the institution shall make the admissions. 27. In Chairman, Bhartia Education Society and another v. State of Himachal Pradesh and others7 this Court in the context f 1993 Act after drawing a distinction between "recognition" and "affiliation" proceeded to state as follows: - "The examining body can therefore impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The State Government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of NCTE. Sub-section (6) of Section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber-stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course or training in teacher education or admit students to such course or training." 28. In Shri Morvi Sarvajanik Kelavni Mandal Sachalit MSKM BEd College v. National Council for Teachers' Education and others8 a two-Judge Bench, after referring to the decisions in N.M. Nageshwaramma (supra), State of T.N. v. St. Joseph Teachers Training Institute9, Vikas Sahebrao Roundale (supra) and Bhartiya Education Society case (supra), eventually opined that there was no justification to strike a discordant note. 29. In Adarsh Shiksha Mahavidyalaya (supra) this Court, after referring to Sections 12, 14 to 16, 17, 17-A, 18, 20, 29 and 32 of the 1993 Act, Regulations 3, 5, 7 and 8 of the 2005 Regulations and further referring to paras 1.0, 2.0, 3.0, 3.1, 3.2 and 3.3 of the amended Regulations made by notification dated 12.7.2006, has categorically laid down thus:- "What needs to be emphasised is that no recognition/permission can be granted to any institution desirous of conducting teacher training course unless the mandatory conditions enshrined in Sections 14(3) or 15(3) read with the relevant clauses of Regulations 7 and 8 are fulfilled and that in view of the negative mandate contained in Section 17-A read with Regulation 8(10), no institution can admit any student unless it has obtained unconditional recognition from the Regional Committee and affiliation from the examining body." 30. After laying down the aforesaid principle the Bench proceeded to deal with the cases of students who had taken admission in unrecognized educational institutions. The question posed by the Bench is as follows: - "The question which remains to be considered is, whether the students who had taken admission in unrecognised institutions or the institutions which had not been granted affiliation by the examining body have the right to appear in the examination and whether the Court can issue a mandamus for declaration of the result of such students simply because they were allowed to provisionally appear in the examination in compliance with the interim orders passed by the High Court and/or this Court. An ancillary question, which would require consideration is, whether the students who had not completed the requirement of minimum teaching days were entitled to appear in the examination and a direction can be given for declaration of their result." 31. Thereafter, the Bench referred to the pronouncements in A.P. Christian Medical Educational Society v. Govt. of A.P.10, N.M. Nageshwaramma (supra), Vikas Sahebrao Roundale (supra) and St. John's Teachers Training Institute (for Women) (supra) and eventually recorded its conclusions in paragraph 87 by reiterating certain conclusions some of which are apposite to be reproduced regard being had to the fact situation of the present case: - "87. ................ (iv) The recognition granted by the Regional Committees under Section 14(3)(a) of the 1993 Act read with Regulations 7 and 8 of the Regulations and permission granted under Section 15(3)(a) read with the relevant Regulations shall operate prospectively i.e. from the date of communication of the order of recognition or permission, as the case may be. xxx xxx xxx (x) In view of the mandate of Section 16, no examining body, as defined in Section 2(d) of the 1993 Act, shall grant affiliation unless the applicant has obtained recognition from the Regional Committee under Section 14 or permission for starting a new course or training under Section 15. (xi) While granting affiliation , the examining body shall be free to demand rigorous compliance with the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines/norms which may have been laid down by the examining body concerned. (xii) No institution shall admit any student to a teacher training course or programme unless it has obtained recognition under Section 14 or permission under Section 15, as the case may be. (xiii) While making admissions, every recognized institution is duty-bound to strictly adhere to Paras 3.1 to 3.3 of the Norms and Standards for Secondary/Pre-School Teacher Education Programme contained in Appendix 1 to the Regulations. (xiv) .......... (xv) The students admitted by unrecognized institution and institutions which are not affiliated to any examining body are not entitled to appear in the examination conducted by the examining body or any other authorised agency ." [emphasis supplied] 32. The direction contained in paragraph 88(ii), being relevant for the present purpose, is reproduced hereinbelow:- "(ii) The result o f the students admitted by an unrecognised institution or by an institution which had not been granted affiliation by the examining body shall not be declared. The result of the students who were admitted without qualifying the entrance examination shall also not be declared. In other words, the students admitted by the private institutions on their own shall not be entitled to declaration of their result. If any private institution had not complied with the requirements of completing the prescribed training, then the result of students of such institution shall also not be declared." [underlining is ours] 33. On a studied scrutiny of the statutory provisions, the relevant Regulations of 2009 Regulations framed under section 32 of the 1993 Act and the pronouncements in the field, we are disposed to think that the High Court has clearly erred in misconstruing its earlier order passed in Writ Petition 4541 of 2011. True it is, there was some delay and, therefore, the High Court was moved in another writ petition wherein the it had granted liberty to file a contempt petition expecting that the directions in the earlier order would be duly complied with. Thereafter, as is manifest, letter of intent was issued but the institution instead of complying with the same moved the High Court for grant of recognition. As has been stated earlier, the High Court in the initial order had directed to consider the case of the respondent-institution for grant of recognition without further inspection. Issuance of letter of intent was necessary prior to grant of formal letter of recognition. However, the High Court being moved directed for issuance of formal letter of recognition which was issued with a postulate that the institution shall only grant admission after obtaining affiliation from the examining body in terms of clause 8(12) of 2009 Regulations. The order of recognition clearly mentioned that it was meant for the academic session 2012-13. 34. Adjudged in the aforesaid perspective the High Court could not have directed the recognition to be retrospectively operative because certain formalities remained to be complied with. It could not have put the clock back. It needs no special emphasis to state that the High Court did not keep itself alive to the conceptual difference between "letter of intent" and "formal recognition". True it is, there was delay but that could not have enabled the High Court to issue a writ for treating the recognition to be effective for the year 2011-12 with intake of fifty students. That apart, the respondent-institution had not obtained affiliation from the university. Therefore, the direction of the High Court is contrary to the provisions of law and the interpretation of the Act and the Regulations made by this Court and, accordingly we are compelled to set aside the same, and we so direct. 35. Now, to the last plank of submission of the learned counsel for the appellant. It is urged by him that the NCTE had procrastinated its decision at every stage and such delay was deliberate and, therefore, the society was compelled to admit the students and impart education, regard being had to the fact that there were really no deficiencies. As has been laid down in many a pronouncement of this Court that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such an attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the students to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been "transparency". Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking "vision of hope", chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same. 36. Before parting with the case, we are obliged to state that the NCTE should have acted in quite promptitude, for a statutory authority which is conferred with the power, is required to act within the parameters of law and the directions given by the court and further not to create a feeling among the educational institutions that they are harassed. This Court expects that the NCTE shall function with propriety regard being had to the statutory responsibility bestowed on it by the Parliament. Its actions neither should show arbitrariness nor should it reflect any indulgence. Objectivity, reliability and trust are to be the motto of the NCTE and the committees working under it. We say no more on this score. 37. In view of our aforesaid premised reasons, the appeal is allowed, the order passed by the High Court is set aside and that of the NCTE is restored. There shall be no order as to costs. ……………………………….J. [K. S. Radhakrishnan] ……………………………….J. New Delhi; [Dipak Misra] |
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