# C/M Babu Baij Nath Singh Mahavidyalaya & Anr v. State Of U.P. & Ors. 46 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 6 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-24
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-babu-baij-nath-singh-mahavidyalaya-anr-v-state-of-u-p-ors-46-indian-law-43996
- **Pages:** 26

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6 All. C/M Babu Baij Nath Singh Mahavidyalaya & Anr. Vs State Of U.P. & Ors.

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submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned
department, who shall submit a comprehensive report to the Chief Secretary within next two months.

(iii) If any such religious structure has been raised encroaching upon public road
(including highways), street, lane etc., as stated above, before 01.01.2011, a Scheme shall be worked out
and executed to shift the same to a private land offered by beneficiaries of such religious structures or
persons responsible for its management or to remove it, within six months and a compliance report shall
be submitted in the manner as said above in Direction No. (ii).

(iv) On and after 10.06.2016, it shall be the responsibility of all Deputy Collectors/
Collectors in respective Sub-divisions and District as also Circle Officers and Superintendent of
Police/Senior Superintendent of Police of concerned District including the Officers responsible for
maintenance of roads (including highways) that no encroachment is made, by raising religious
structures, by whatever name it is called, belong to any religion, creed, caste, sect, section etc., on public
roads (including highways), streets, pathways, sideways, lanes etc. and if any deviation or disobedience
is found, these Officers shall be personally responsible. This disobedience shall also be treated a
deliberate and intentional disobedience to lower down authority of Court and would amount to criminal
contempt.

(v) State Government is also directed to make out a plan so as to ensure that public roads
(including highways), streets, pathways, sideways, lanes etc. are not obstructed creating hindrance in the
smooth flow of traffic/movement of public on such roads (including highways) due to observance of
religious activities and such activities are performed strictly at the places identified for the same or
belong to concerned religious sections or at private place.

(vi) In the present case, District Magistrate is directed to take immediate steps and take
appropriate action within two weeks.

9. A compliance report of the above directions shall be submitted through Chief Secretary, U.P.
Government after seven months i.e. by 07.01.2017 for perusal of Court.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.06.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ C No.- 28141 Of 2016

C/M Babu Baij Nath Singh Mahavidyalaya & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents
46 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for Petitioners:
Shivendu Ojha, Radha Kant Ojha

Counsel for Respondents:
C.S.C., Brajesh Datta Pandey, Ramanuj Tiwari, Rijwan Ali Akhtar, Saumitra Singh

Held:-

NCTE Act enacted under Entry 66, List‐I has supremacy over State law.
Once NCTE grants recognition, University cannot refuse affiliation on grounds already examined by NCTE.
NOC from State/University is not mandatory once recognition is granted.
University can conduct only limited enquiry regarding fraud or compliance.
Impugned order dated 22.05.2016 quashed.
Matter remitted to University for fresh decision within three weeks.

Case Law Cited:-
Article 226 Constitution of India; NCTE Act, 1993; U.P. State Universities Act, 1973; NCTE Regulations, 2009 &
2014

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. The petitioners have instituted this writ proceedings under Article 226 of the
Constitution of India for quashing of an order dated 22nd May, 2016 communicated by the
Registrar of Deen Dayal Upadhyay Gorakhpur University, Gorakhpur denying affiliation to the
petitioners' institution for the academic session 2016-18 and for a direction upon the respondents to
permit the petitioners' institution to participate in the counselling and also to allot the students on
the basis of entrance examination conducted for B.Ed. course for session 2016-18.

2. The basic facts pertinent to the issue in question may be stated as follows:

3. Baij Nath Smarak Sansthan, Deorhi, Deoria is a Society, which is registered under the
provisions of the Societies Registration Act, 1860. It has established a degree college, namely,
Babu Baij Nath Singh Mahavidyalaya, Deorhi, Deoria1, which is affiliated to Deen Dayal
Upadhyay Gorakhpur University, Gorakhpur2. The college is governed under the provisions of the
Uttar Pradesh State Universities Act, 19733 and the First Statutes of the University. The college
runs undergraduate classes. It is a self-financing institution.

4. In the year 2012, the petitioners made an application to the Northern Regional
Committee4 of the National Council for Teacher Education5 for recognition to run Bachelor of
Education (B.Ed.) course in the college.

5. The NCTE sent a team of Experts, Visiting Team, with a view to assess the level of
preparedness of the institution to commence the course. The Visiting Team made an inspection of
the college and it has also got done videography of the building, laboratory, library, members of the
staff, etc. The NRC in its 223rd meeting, which was held on 17th to 19th January, 2014, considered
6 All. C/M Babu Baij Nath Singh Mahavidyalaya & Anr. Vs State Of U.P. & Ors.

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the report and videography submitted by its Expert Committee/Visiting Team. On the basis of the
report submitted by the Visiting Team and the videography, the NRC was prima facie satisfied that
the college possesses adequate financial resources, accommodation, library and laboratory, etc. as
prescribed in the norms and standards and it also fulfills all such other conditions relating to
infrastructural and instructional facilities required for proper functioning of the institution for a
teacher education course. Hence, the NCTE decided to issue a letter of intent to the college and the
same was issued on 08th February, 2014. It is worthwhile to notice that the letter of intent is issued
prior to grant of recognition/ permission for B.Ed. course.

6. In the letter of intent the NCTE laid down certain conditions to be fulfilled before grant
of formal recognition, such as, submissions of documents relating to particulars of the staff duly
approved by the University, advertisement in leading newspapers, educational & professional
qualification certificates of all teaching staff, etc. It is stated that the college has made the
appointment of the qualified teachers and the University vide its orders dated 19th February, 2015,
26th August, 2015 and 12th May, 2016 has accorded approval to 11 teachers in the college.

7. The NCTE having been satisfied that the college fulfills its norms for grant of
recognition, vide its order dated 09th April, 2015 granted recognition to the college to run B.Ed.
course for two years duration with 100 annual intakes (two units) from the academic session 201516.

8. It is stated that although the recognition was granted from the academic session 2015-16
but the petitioners could not be able to get the students for admission for the said session.

9. It is further stated that about 40 institutions had applied for recognition from the NCTE
in the year 2012 but they were granted recognition in 2015. In those cases also, No-Objection
Certificates (NOC) from the University were not taken. This aspect was considered by the
Executive Council of the University in its meeting dated 18th May, 2016 and deferred the
consideration on the ground that issue of NOC is under consideration of NCTE. It is stated that
NCTE was likely to take decision on 19th May, 2016, therefore, the Executive Council authorized
the Vice-Chancellor of the University to take appropriate decision after the decision is taken by the
NCTE on 19th May, 2016.

10. On 19th May, 2016 the NRC considered a letter of the Registrar of the University dated
22nd April, 2016, which was received in the office of the NRC on 10th May, 2016, and decided to
grant recognition in respect of 29 institutions including the petitioners' college and rejected the
recognition of 11 institutions. In the cases of all 29 institutions, the NRC was satisfied that the
applications of these institutions for recognition were in process before the implementation of the
National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 20146.
It also noted that the applications of the petitioners and other 28 institutions were in process before
the Gazette Notification of the Regulations, 2014. It further noted that the approvals of the Faculty
by the affiliating University were considered equivalent to NOC from affiliating University.
48 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In spite of the recognition of the NCTE dated 09th April, 2016 the University issued a
show cause letter dated 04th May, 2016 to the college calling upon it to submit a reply that without
obtaining NOC from the University the college has secured permanent recognition from the NCTE.
It was also mentioned therein that recognition granted by the NCTE is against the Regulations,
2014 and letter of the NCTE dated 21st May, 2015. The petitioners submitted a reply on 10th May,
2016 and pointed out that the recognition is for the session 2015-16. Hence, the requirement of
NOC in view of the Regulations, 2014 is not required.

12. On 22nd May, 2016 the University has issued the impugned order rejecting the
application of the petitioners for affiliation to run B.Ed. course amongst other grounds that the
University has not issued no objection to the college.

13. Relevant, it would be to mention that said decision was taken by the Affiliation
Committee (lEc)rk lfefr).

14. The next ground mentioned in the impugned order is that the letter of intent was issued
under Clause 7(9) of the National Council for Teacher Education (Recognition Norms and
Procedure) Regulations, 20097 on 18th February, 2014, however, approval of 11 lecturers have
been granted on 19th February, 2015, 26th August, 2015 and 12 May, 2016, whereas the permanent
recognition has been granted by the NCTE on 09th April, 2015 under Regulation 7(16) of the
Regulations, 2014.

15. It is averred in the writ petition that for admission in B.Ed. course a common entrance
examination has been conducted at the State level by the Lucknow University and the result was
declared and the counselling has started since 06th June, 2016. Therefore, there is extreme urgency
in the matter because in case the students are not allotted to the petitioners' college, it will suffer
irreversible loss as it has already lost one session of 2015-16 in spite of the fact that it was granted
recognition from session 2015-16.

16. The petitioners have averred that the University had sent a separate Expert Committee
for inspection of the infrastructure available in the college. The three-Member Expert Committee
constituted by the University was comprised of the Regional Higher Education Officer and two
experts. It is stated that the said Committee found that the college has necessary infrastructure in
terms of the requirement of the University and it made a recommendation for affiliation.

17. A counter affidavit has been filed on behalf of the University sworn by a Senior
Assistant. The stand taken by the University is that to run B.Ed. course several requirements are to
be completed and one of the requirements is that the college, which is submitting the application
for recognition, has to annex the copy of NOC issued by the competent authority in order to prove
that the land, on which college for B.Ed. course is going to run, belongs to the said society or the
institution and in case NOC is not submitted, the application for recognition is considered to be
incomplete.
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18. A Government Order dated 27th September, 2002 was issued to the effect that no
objection certificate granted by the State Government is to be submitted by the institution for
granting recognition to the new college. It is stated that for regulating the institutions to run B.Ed.
course, the Regulations, 2009 has been framed, which makes it mandatory for sending a certified
copy of the registered land documents issued by the competent authority.

19. Thereafter, the Regulations, 2014 has been framed which has made it mandatory that
online application for grant of recognition to run the B.Ed. course must accompany a no objection
certificate issued by the competent authority about the land documents. Thus, NOC in respect of
the land is mandatory. It has also referred a Government Order dated 05th February, 2014 in
respect of the time-schedule. It is also stated that the University has sent the letter dated 22nd April,
2016 to the NCTE but the NCTE has wrongly granted the recognition.

20. A rejoinder affidavit has been filed by the petitioners. It is stated therein that the NCTE
itself has clarified in its resolution dated 19th May, 2016 that there is no need of any NOC from the
affiliating body. It is also stated that the petitioners have moved the application much before the
new Regulations of 2014 were made and hence, it was governed under the Regulations, 2009,
wherein it was provided that if the State Government does not send its objection within 45 days,
then NRC will be free to take decision on merit. In the present case, the application was moved in
the year 2012. In paragraph-8 of the rejoinder affidavit the petitioners have mentioned the name of
several institutions which are similarly placed but the University has given them affiliation in spite
of the fact that those institutions have also not taken NOC either from the State Government or
from the University. There are about 15 such colleges. The names of some of the colleges have
been mentioned by the petitioners. It is also stated that other Universities have also granted
affiliation without insisting for NOC.

21. Along with the rejoinder affidavit, the petitioners have also brought on record
recommendations of the Expert Committee of the University. It is worthwhile to mention that the
said Expert Committee was constituted by the University itself and the Committee has found that
the college fulfills the norms of the University and the State Government. Hence, a
recommendation has been made by the Committee of the University to grant affiliation. The
University did not seek any time to rebut the averments made in the rejoinder affidavit. The learned
counsel for the University in his submissions did not deny the said fact.

22. I have heard Sri Radha Kant Ojha, learned Senior Advocate appearing for the
petitioners, assisted by Sri Shivendu Ojha, learned counsel for the petitioners, Sri B.D. Pandey,
learned counsel for the University, Sri R.A. Akhtar, learned counsel for the NCTE, and Sri Vikram
Bahadur Yadav, learned Standing Counsel.

23. Sri Radha Kant Ojha, learned Senior Counsel appearing for the petitioners, has
submitted that the NCTE has granted recognition to the college on 09th April, 2015 from the
academic session 2015-16. The University was bound to grant affiliation for the academic session
2015-16 in terms of Section 14(6) read with Section 17(3) & (4) of the National Council For
50 INDIAN LAW REPORTS ALLAHABAD SERIES

Teacher Education Act, 19938. The insistence of the University for NOC was wholly irrelevant in
view of the fact that the University had granted approval for the appointment of the teachers for
B.Ed. course. He further submitted that the inspection panel constituted by the University had also
found that the petitioners' college has all the necessary infrastructure, therefore, the University was
bound to grant affiliation. It was also urged by him that the NCTE Act is enacted by the Parliament
under Entry 66, List-I of the Seventh Schedule of the Constitution of India, therefore, the
provisions of the State Universities Act in respect of the affiliation shall be deemed to be
inoperative. He has placed reliance on a judgment of the Supreme Court in State of Maharashtra
v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others9 and a judgment of the
Kerala High Court in the case of Vikram Sarabhai Education Trust and B.Ed. College,
Keipamangalam v. University of Calicut10. Lastly, he urged that the college has made the
application in the year 2012, therefore, the Regulations, 2009 shall be applicable.

24. Learned counsel for the University Sri B.D. Pandey has submitted that the requirement
of NOC is one of the mandatory provisions and the petitioners' college has failed to submit the
NOC as required under the Government Order dated 27th September, 2002. Hence, the University
has rightly rejected the application of the petitioners for affiliation. He further submitted that under
the Regulations of 2009 and 2014 also NOC is mandatory. Learned counsel for the University has
laid emphasis on the Government Order dated 27th September, 2002 in this regard. It is also urged
by Sri Pandey that the students cannot be admitted by the college without affiliation of the
University and this Court under Article 226 of the Constitution may not issue any direction to
admit the students provisionally. Lastly, he urged that for grant of affiliation the University is
entitled to be satisfied that the college has qualified teaching staff and proper infrastructure. He has
placed reliance on a judgement of the Supreme Court in the case of Minor Sunil Oraon Tr.
Guardian & ors. v. C.B.S.E. & ors.11, and a judgment of this Court in Samiksha Verma v.
University of Lucknow and others12 for the proposition that by interim order the students should
not be permitted to join a course or to appear in examination.

25. Sri R.A. Akhtar, learned counsel for the NCTE, submits that once the NCTE has
granted recognition, the University is bound to grant affiliation in terms of Section 14(3) and 14(5)
of the NCTE Act. He further submitted that the NOC is only a recommendation and in view of the
deeming clause under Regulation 7(4) of the Regulations, 2009 the State Government is deemed to
have granted no objection. He has also placed reliance on the judgment of the Supreme Court in
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra). Further, he urged that a
combined reading of Section 14(4) & 14(6) read with Section 16 of the NCTE Act obligates an
affiliating body to grant affiliation in case the NCTE has granted the recognition to the institution.
The provisions of the NCTE Act indicate that it leaves no discretion to the affiliating body to
impose any further condition particularly no objection from the State Government.

26. Before adverting to the submissions made by the learned counsel for the parties, it
would be appropriate to refer the relevant provisions of the statutes which regulate the recognition
by the NCTE, affiliation by the University and the role of the State Government.
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27. The NCTE Act has been enacted by the Parliament. Its Preamble provides for the
establishment of a National Council for Teacher Education with a view to achieving planned and
coordinated development for the teacher education system in the whole of the country, the
regulation and proper maintenance of norms and standards in the teacher education system. The
NCTE was set up in the year 1973 as a purely advisory body. It was felt that the said body could
not achieve its objective as it had very little impact on the standards of teacher training institutions
in the country. In view of the said fact, the Parliament enacted the National Council for Teacher
Education Act, 1993. The object thereof was in the light of the national policy on education and the
NCTE was empowered to provide necessary resources and capacity of accredited institution of
teacher education. It was entrusted with the task to provide guidance regarding curricula and
methods. The Parliament has enacted the NCTE Act under Entry 66 of List-I i.e. Union List of the
Seventh Schedule of the Constitution of India. Entry 66 of List-I of the Seventh Schedule of the
Constitution reads as under:

"66. Co-ordination and determination of standards in institutions for higher
education or research and scientific and technical institutions."

28. Before the Constitution (Forty-second Amendment) Act, 1976, Entry 11 of the State
List i.e. List-II of the Seventh Schedule provided for the education including Universities subject to
the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List-III. After the said
amendment, Entry 25 of List-III provides that the education, including, technical education,
medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I;
vocational and technical training of labour.

29. The aforesaid Entries indicate that insofar as the higher education or research on
scientific and technical education is concerned, that has not been subject to any amendment and
was always under the purview of the power of Parliament. The Constitution (Forty-second
Amendment) Act, 1976 came into force with effect from 03rd January, 1977, and the only change
thereafter made was that Entry 11 of List-II was merged with Entry 25 of List-III from the List-II.
The amended Entry 25 of List-III explicitly lays down that it is subject to the provisions of Entries
63, 64, 65 and 66 of List-I.

30. As noticed above, the preamble of the NCTE Act provides that one of the main objects
of the Act is to achieve planned and coordinated development of teacher education throughout the
country. Section 2(d) of the NCTE Act defines the "examining body" in the following terms:

"(d) "examining body" means a University, agency or authority to which an
institution is affiliated for conducting examinations in teacher education qualifications;"

31. Section 2(i) of the NCTE Act gives the definition of "recognised institution" thus:

"(i) "recognised institution" means an institution recognised by the Council under
Section 14;"
52 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Definition of "University" has been given under Section 2(n) of the NCTE Act, as
under:

"(n) "University" means a University defined under clause (f) of Section 2 of the
University Grants Commission Act, 1956, and includes an institution deemed to be a University
under Section 3 of that Act (3 of 1956);"

33. Chapter II of the NCTE Act deals with establishment of the Council. Chapter-III
enumerates various functions of the Council. Section 12(f) & (g) deals with laying down guidelines
and standards in respect of teacher education. By an amendment, Section 12-A has been inserted in
the NCTE Act by Act No. 18 of 2011 with effect from 01st June, 2012, which empowers the
Council to determine the minimum standards of education and qualifications of persons for being
recruited as school teachers also in respect of pre-primary, primary, upper primary, secondary,
senior secondary or intermediate school or college. Thus, the teachers employed from pre-primary
stage of the education were also included within the purview of the NCTE Act. Chapter-IV of the
NCTE Act deals with recognition of teacher education institutions. Since the dispute in the present
case relates to recognition and affiliation of institution, it is necessary to extract Section 14 of the
NCTE Act, as under:

"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 fulfils 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
6 All. C/M Babu Baij Nath Singh Mahavidyalaya & Anr. Vs State Of U.P. & Ors.

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(b) if it is of the opinion that such institution does not fulfil 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 concerned institution for making a written
representation.

(4) Every order granting or refusing recognition to an institution for a course or
training in teacher education under sub-section (3) shall be published in the Official Gazette and
communicated in writing for appropriate action to such institution and to the concerned examining
body, the local authority or the State Government and the Central Government.

(5) 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 subsection (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."

34. Section 15 of the NCTE Act deals with the procedure for application for recognition.
Since in the case in hand the recognition has been granted by the NCTE, Section 15 is not relevant
for the purpose. Section 16 provides that the University shall not grant affiliation to any institution
unless the institution concerned has obtained recognition from the Regional Committee under
Section 14. Section 16 of the NCTE Act is quoted below:

"16. Affiliating body to grant affiliation after recognition or permission by the
Council.--Notwithstanding anything contained in any other law for the time being in force, no
examining body shall, on or after the appointed day,--

(a) grant affiliation, whether provisional or otherwise, to any institution; or

(b) hold examination, whether provisional or otherwise, for a course or training
conducted by a recognised institution,

unless the institution concerned has obtained recognition from the Regional
Committee concerned, under Section 14 or permission for a course or training under Section 15."
54 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Section 17 provides the consequences of contravention of the provisions of the Act.
Sub-sections (3) & (4) of Section 17, being relevant for the purpose, are quoted below:

"(3) Once the recognition of a recognised institution is withdrawn under sub-section
(1), such institution shall discontinue the course or training in teacher education, and the concerned
University or the examining body shall cancel affiliation of the institution in accordance with the
order passed under sub-section (1), with effect from the end of the academic session next following
the date of communication of the said order.

(4) If an institution offers any course or training in teacher education after the
coming into force of the order withdrawing recognition under sub-section (1) or where an
institution offering a course or training in teacher education immediately before the appointed day
fails or neglects to obtain recognition or permission under this Act, the qualification in teacher
education obtained pursuant to such course or training or after undertaking a course or training in
such institution, shall not be treated as a valid qualification for purposes of employment under the
Central Government, any State Government or University, or in any School/College or other
educational body aided by the Central Government or any State Government."

36. Chapter-VII of the NCTE Act deals with miscellaneous matters. Section 31 gives
power to the Central Government to make rules. The Central Government in exercise of the powers
conferred by Section 31 of the NCTE Act has made the rules, namely, the National Council for
Teacher Education Rules, 199713. Rule 8 of the Rules, 1997 provides that an institution which
intends to conduct the B.Ed. course shall be inspected to ascertain as to whether the institution has
necessary physical and other infrastructure in terms of the provisions of the NCTE Act and the
Rules and Regulations made thereunder. Rule-8 of the Rules, 1997 reads as under:

"8. Inspection.--(1) The Council may inspect the recognized institutions in the
manner specified in sub-rules (2) to (8).

(2) The Council shall approve a panel of names of experts in teacher education or
educational administration who may be able to inspect the recognized institutions. The Chairman
shall nominate at least two persons out to the panel of experts to a inspection team.

(3) The Council shall give a notice of its intention to the institution along with a
questionnaire in Form 'IV' seeking information within fifteen days on all relevant matters relating
to the institution.

(4) On receipt of the completed questionnaire, the Council shall communicate the
names of the members of inspection team and the date of inspection to the institution.

(5) The institution to be inspected shall nominate its one officer or employee, to be
associated with the inspection team.
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(6) The inspection team shall ascertain as to whether the institution is functioning in
accordance with the provisions of the Act and the rules and regulations made thereunder.

(7) The members of the inspection team may, if deem necessary, interact with the
faculty members and other employees of the institution.

(8) The inspection team shall submit its report to the Council within a period of
fifteen days from the last day of the inspection."

37. Section 32 of the NCTE Act empowers the NCTE to make regulations not inconsistent
with the provisions of the NCTE Act and the rules made thereunder. The Regulations, amongst
others, provides the norms, guidelines and standards in respect of the minimum qualifications, form
and manner, in which an application for recognition is to be submitted under sub-section (1) of
Section 14, the conditions required for the proper conduct of a new course, etc..

38. At this stage, it would be advantageous to have a survey of the law on this subject and
can start with the case of State of T.N. and another v. Adhiyaman Educational & Research
Institute and others14. The Parliament prior to enactment of the NCTE Act had enacted the All
India Council for Technical Education (AICTE) Act in the year 1987 under Entry 66 of List-I of
the Seventh Schedule of the Constitution. The AICTE Act deals with technical education. The said
Act was also enacted with reference to Entry 66 of the Union List and Entry 25 of the Concurrent
List. After the enactment of the AICTE Act, the conflict between the Central Act, AICTE Act, and
the State Act, under which the Universities have been established, arose. The Supreme Court in the
said case held as under:

"30. ... As has been pointed out earlier, the Central Act has been enacted by
Parliament under Entry 66 of List I to coordinate and determine the standards of technical
institutions as well as under Entry 25 of List III. The provisions of the University Act regarding
affiliation of technical colleges like the engineering colleges and the conditions for grant and
continuation of such affiliation by the University shall, however, remain operative but the
conditions that are prescribed by the University for grant and continuance of affiliation will have to
be in conformity with the norms and guidelines prescribed by the Council in respect of matters
entrusted to it under Section 10 of the Central Act."

In paragraph 41(iv) of the judgment i.e. Adhiyaman Educational & Research
Institute (supra) the Supreme Court observed as under:

"41 (iv) Whether the State law encroaches upon Entry 66 of the Union List or is
repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be
determined by the examination of the two laws and will depend upon the facts of each case."

39. The judgment of Adhiyaman Educational & Research Institute (supra) was
followed by the Supreme Court in Jaya Gokul Educational Trust v. Commissioner & Secretary
56 INDIAN LAW REPORTS ALLAHABAD SERIES

to Government Higher Education Department, Thiruvanathapuram, Kerala State and
another15. In this case the issue arose in respect of the affiliation by the Kerala University to a selffinancing engineering college. In spite of the recognition from the AICTE, the University had
rejected the application for affiliation on the ground that the State Government did not issue no
objection. The Supreme Court held that as the AICTE Act occupied the field relating to the grant of
approval, the requirement of the Kerala University Statute of approval of the State Government was
found to be inconsistent with the provisions of the AICTE Act and hence, such requirement is
illegal and void. The Court further held that the provisions of the Kerala University and its Statute
would not be inoperative, except only those provisions which are inconsistent with the AICTE Act
or regulations.

40. The conflict of the provisions of the NCTE Act and the State Universities Act came to
be considered in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra). Learned Senior
Counsel appearing for the petitioners has placed heavy reliance upon this judgment. In this case,
the institution was granted recognition by the NCTE. However, the State Government took a stand
that since there are large number of B.Ed. colleges in the State, therefore, the State Government
took a policy decision to refuse permission to establish new B.Ed. colleges on policy consideration.
The Supreme Court observed that similar objections were raised by the Government in the earlier
case in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Educational & Charitable Trust v. State of T.N. 16 and Jaya Gokul Educational Trust (supra).
The Supreme Court held as under:

"61. Interpreting the statutory provisions, this Court held (at SCC p. 34, para 31)
that by enacting Section 10-A, Parliament had made "a complete and exhaustive provision covering
the entire field for establishing of new medical colleges in the country". No further scope is left for
the operation of the State legislation in the said field which was fully covered by the law made by
Parliament. The Court, therefore, held that the proviso to sub-section (5) of Section 5 of the State
Act which required prior permission of the State Government for establishing a medical college
was repugnant to Section 10-A of the Central Act and to the extent of repugnancy, the State Act
would not operate. The Court noted that in the scheme that had been prepared under the
Regulations for the establishment of new medical colleges, one of the conditions for the qualifying
criteria laid down was "essentiality certificate" regarding desirability and of having the proposed
college at the proposed location which should be obtained from the State Government. The proviso
to sub-section (5) of Section 5 of the Act, therefore, must be construed only as regards "proposed
location". The "essentiality certificate", however, could not be withheld by the State Government
on any "policy consideration" inasmuch as the policy and the matter of establishment of new
medical college rested with the Central Government alone.

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
6 All. C/M Babu Baij Nath Singh Mahavidyalaya & Anr. Vs State Of U.P. & Ors.

57
Schedule VII to the Constitution that there is a concurrent power of Parliament as well as State
Legislatures and appropriate Act can be made by the State Legislature subject to limitations and
restrictions under the Constitution.

63. In the instant case, admittedly, Parliament has enacted the 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 teachereducation 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, the 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 the State Government to
refuse permission relying on a State Act or on "policy consideration".

64. Even otherwise, in our opinion, the High Court was fully justified in negativing
the argument of the State Government that permission could be refused by the State Government
on "policy consideration". As already observed earlier, policy consideration was negatived by this
Court in Thirumuruga Kirupananda Trust17 as also in Jaya Gokul Educational Trust18.

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68. In view of the fact, however, that according to us, the final authority lies with
NCTE and we are supported in taking that view by various decisions of this Court, NCTE cannot
be deprived of its authority or power in taking an appropriate decision under the Act irrespective of
absence of no-objection certificate by the State Government/Union Territory. Absence or nonproduction of NOC by the institution, therefore, was immaterial and irrelevant so far as the power
of NCTE is concerned."

41. The law laid down in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra)
has consistently been followed by the Supreme Court. In the case of National Council for
Teacher Education and others v. Shri Shyam Shiksha Prashikshan Sansthan and others19, the
Supreme Court held as under:

"40. In State of Maharashtra v.