CWP NO.19194 OF 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
DATE OF DECISION: 15 .07.2009
Association of Punjab Self Financed College of Education ..Petitioner
State of Punjab and others ..Respondents CORUM
HON'BLE MR.JUSTICE PERMOD KOHLI
Present: Mr.Vinod S.Bhardwaj, Advocate for the petitioner Mr.S.S.Sahu,AAG, Punjab for respondents
The petitioner is a Society registered under the Societies Registration Act, 1960. It comprises of various institutions specified in paragraph 1 of the petition which are imparting education in B.Ed/Elementary Teacher Training Courses. Number of such institutions seems to be 28. It is further stated that all the member institutions of the petitioner-Society have been duly and validly granted permission/recognition by the National Council for Teacher Education (hereinafter referred to "NCTE"), an Apex Body under the provisions of National Council for Teacher Education Act,1993. According to the petitioner, these institutions have established the educational institutions for imparting teacher training in various parts of the CWP NO.19194 OF 2007 2 State, after securing necessary permission/recognition from the NCTE and all other authorities including the State of Punjab and have created infrastructure etc. with minimum investment of Rs.50.00 lacs and more. It is, however, pleaded that under the law laid down by the Hon'ble Supreme Court of India, either the non-aided institution has to be granted liberty to make admissions of its own or Central Common Entrance Test may be conducted by the State of Punjab for admission to such institutions irrespective of the fact whether it is a minority or a non-minority institution. The petitioner has categorically sought following reliefs:- i) Issue of an appropriate writ order or direction in the nature of mandamus directing the respondents to conduct the centralized counseling for admission to the Elementary Teacher Training Course.
ii) Issue of such other appropriate, writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner association of Punjab Self Financed College of Education to conduct its own admission to the aforesaid course.
iii) Issue any other appropriate writ, order or direction, which this Hon'ble Court may deem fit and proper in the fact and circumstances of this case.
iv) Exempt the petitioner from filing the certified copies of Annexures. v) Dispense with the prior services of the notice upon the respondents. vi) Award the cost of the writ petition to the petitioner." From the prayer, it appears that primarily the petitioners have asked for two reliefs i.e. (a) for a direction to the respondents to conduct the CWP NO.19194 OF 2007 3 centralized counseling for admission to the Elementary Teacher Training Course; and (b) for a direction to the respondents to permit the petitioner association of Punjab Self Financed Colleges of Education to conduct its own admission to the aforesaid course. The State Government in its reply has stated that the State Government has conducting centralized admission to the Elementary Teacher Course for the Sessions, 2006-08 and students have been admitted in the private institutions for two years diploma course. The State has further spelt out its policy decision to conduct a common test for centralized admissions to all Elementary Teacher Training institutions, on the basis of inter-se merits of the candidates. It is the stand of the State that the State Government has adopted this policy for ensuring certain standard and excellence of education in teacher training institute with the high object of providing trained teachers and education in the State and accordingly, the admissions are to be made on the basis of merit to ensure the quality teaching by teachers who are capable of instilling athletics excellence in the life of their pupils. The State Government has further expressed its desire to play an important role in the task of educational development by professional teachers for over all improvement of the educational standard in the State. It is, however, stated that the State Government wants to keep a track of number of trained teachers awaiting for employment and possibility of their deployment in near future. Thus, keeping in view this demand and supply procedure, the State Government decided to admit/train varying number of teachers in previous years. The State Government permitted admission from 50 to 200 candidates per institution from time to time. CWP NO.19194 OF 2007 4 The entrance test of ETT course was held in the year 2001-03 and thereafter centralized admission of ETT course has been made in the year 2006-08 for a period of two years. With a view to justify non-holding of such Common Entrance Test periodically every year, it is stated on behalf of the State that training of teachers cost both the State Government and the trainees' huge amount of money by way of fees and grants without there being adequate scope for utilizing their skill, the State Government is holding the test from time to time depending upon the desirability of having more trained teachers. The State Government does not want to have surplus trained teachers in the State creating employment problems. Regarding the right of the petitioner and such institutions to hold and conduct centralized admission test at their own level, it is stated that no such right is available to the petitioner and any such institution. According to the respondents, the petitioners- institutions have no right to either compel the Government to conduct the Common Entrance Test or hold any such test themselves. They are not covered under the ratio of the judgment in the case of P.A. Inamdar vs. State of Maharashtra, 2005 (6) SCC 537. I have heard learned counsel for the petitioner and for the State- respondents.
National Council for Teacher Education Act,1993 (hereinafter referred to as "the Act, 1993") came to be enacted by the Parliament to establish a National Council for Teacher Education with the object to achieving planned and co-ordinated development of teacher education system throughout the country and to regulate and maintain proper norms and standards for such education system. Some of the relevant CWP NO.19194 OF 2007 5 terms and expressions defined in the National Council for Teacher Education Act,1993 are reproduced as under:-
(c) "Council" means the National Council for Teacher Education established under sub-section (1) of Section3; XXX XXX XXX
(e) "Institution" means an institution which offers courses or training in teacher education.
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(i) "recognized institution" means an Institution recognized by the Council under Section 14;
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(l) "teacher education" means programmes of education, research or training of persons for equipping them to teacher at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education."
Chapter IV of the Act, 1993 deals with the Recognition of Teacher Education Institutions. Sub-section (3) of Section 14 empowers the Regional Committee under the Act to grant recognition to such institutions. Section 15 deals with the commencement of new courses whereas Section 16 deals with the grant of affiliation etc. by the affiliating bodies. Section 31 empowers the Central Government to make Rules and Section 32 empowers the Council to make regulations to carry out the purposes of the Act, 1993.
CWP NO.19194 OF 2007 6 While prescribing various conditions for grant of recognition, one of conditions prescribed for making admission is contained under Clause 12 of the National Council for Teacher Education (Recognition Norms & Procedure) Regulations, 2007 (here-in-after referred to as "The Regulations, 2007"). The aforesaid Clause 12 is reproduced as under:- "(12). An institution shall make admission only after it obtains order of recognition from the Regional
Committee concerned under Regulation 7 (11), and affiliation from the examining body."
The necessity and role of private educational institutions imparting various educational and professional courses has been recognized in India for last more than two decades.
Government of India formulated National Policy on Education in the year 1986 modified from time to time. The extract relevant for the purpose of this petition is noticed here-in-under:-
"10.1 An overhaul of the system of planning and the management of education will receive high priority. The guiding considerations will be:
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(c ) giving pre-eminence to people's involvement, including association of non-govermental agencies and voluntary effort;
10.9. Non-Government and voluntary effort including social activist groups will be encouraged, subject to proper management, and financial assistance provided. At the same time, steps will be taken to prevent the establishment of CWP NO.19194 OF 2007 7 institutions set up to commercialize education." Taking note of the Government of India Education Policy to involve the private sector role in imparting education which hitherto was the sole responsibility and the prerogative of the State, in the case of Unni Krishnan, J.P. And others vs. State of Andhra Pradesh and others, (1993) 1 Supreme Court Cses 645, the Hon'ble Supreme Court made following observations:-
"85.Therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the "so-called colleges" run in thatched huts with hardly any equipment, with no or improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution or who desires to set up such an institution. They are poisonous weeds in the field of education. Those who venture are financial adventurers without morals or scrupules. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a CWP NO.19194 OF 2007 8 passport for employment in a country rampant with unemployment. They could be even called pirates in the high seas of education.....
However, a word of caution requires to be uttered. Not all the private instutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the Government in many respects. They require encouragement. From this point of view regulatory controls have to be continued and strengthened. The commercialisation of education, the racketeering must be prevented. The State should strive its utmost in this direction. Regulatory measures must so ensure that private educational institutions maintain minimum standards and facilities. Admission within all groups and categories should be based only on merit. ...."
The aforesaid view has been consistently followed in all subsequent judgments in the cases of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, Islamic Academy of Education v. State of Karnataka (2003) 6 Supreme Court Cases 697, P.A.Inamdar and others vs. State of Maharashtra and others, (2005) 6 Supreme Court Cases 537, Vaish College Education, Rohtak and others, 2007 (4) SLR 839. In the case of Islamic Academy of Education (supra), the Hon'ble Supreme Court made following observations:-
"24.Imparting of education is a State function. The State, however, having regard to its financial and other constrains is CWP NO.19194 OF 2007 9 not always in a position to perform its duties. The function of imparting education has been, to a large extent, taken over by the citizens themselves. Some do it as pure charity; some do it for protection of their minority rights whether based on religion or language; and some do it by way of their "occupation". Some such institutions are aided by the State and some are unaided."
While recognizing the role of the Private Sector in promoting education in the country, the Government of India, the State Government emphasized the need for adopting a fair admission procedure to prevent the commercialization of the education. In absence of there being any statutory sanction for regulation of the admission procedure in higher education, the Hon'ble Supreme Court in the famous case of Unni Krishnan, J.P. And others (supra) itself framed a scheme for regulating admission in the professional colleges and also issued certain directions for enacting appropriate laws. Based upon the observations of the Hon'ble Supreme in the aforesaid judgment, a number of administrative measures were adopted by the Parliament as also by the State Governments. Amendments were carried out in Medical Council of India Act, All India Council of Technical Education Act and the National Council for Teachers Education Act, 1993 (for short "NCTE Act") also came into being. For the purpose of present petition, only NCTE Act is relevant. Though rules and regulations have been framed under the aforesaid Act and the relevant regulations have been noticed herei-in-above, no rule and regulation has been framed to regulate the admission to the non-aided/B.Ed. Colleges, and other teacher training institutes, though recognised by the State Governments and affiliated with CWP NO.19194 OF 2007 10 the appropriate universities for the purpose of granting the degrees/diplomas etc. Even the examinations are being conducted by affiliating universities, but in the matter of admission, the situation remained flute and uncertain all along. Hon'ble Supreme Court accordingly issued certain directions in some of the cases regarding regulation of admissions. In the case of T.M.A. Pai Foundation (supra), paragraph 68 can be split into seven parts as under:-
"Firstly, it deals with the unaided minority or non- minority professional colleges.
Secondly, it will be unfair to apply the rules and regulations framed by the State Government as regards the government aided professional colleges to the unaided professional colleges.
Thirdly, the unaided professional institutions are entitled to autonomy in their administration, while at the same time they should not forego or discard the principles of merit.
Fourthly, it is permissible for the University or the Government at the time of granting recognition to require an unaided institution to provide for merit-based admission while at the same time giving the management sufficient discretion in admitting students.
Fifthly, for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management out of those students who passed the common test held by itself or by the State/University and CWP NO.19194 OF 2007 11 for applying to the College/University for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency.
Sixthly, the provisions for poorer and backward sections of the society in unaided professional colleges are also to be provided for.
Seventhly, the prescription for percentage of seats in unaided professional colleges has to be done by the Government according to the loca needs. A different percentage of seats for admission can be fixed for minority unaided and non-minority unaided professional colleges."
Later in Islamic Academy of Education (supra), the Hon'ble Supreme Court made following observations:-
"16.That brings us to the question as to how the management of both minority and non-minority professional colleges can admit students in the quota allotted to them. Undoubtedly, the majority judgment has kept in mind the sad reality that there are a large number of professional colleges which indulge in profiterring and/or charging of capitation fees. It is for this reason that the majority judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted, it is impossible to control profieering/charing of capitation fees unless it is ensured that admission is on the basis of merit. Aalso, as has been rightly pointed out, if a student is required to appear at more than one entrance test, it CWP NO.19194 OF 2007 12 would lead to great hardship. The application fees charged by each institute, even though they may be only Rs.500 to Rs.1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further, as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each college. If a student has to go for test to each institute, it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by the State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. Medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State........."
In the case of P.A. Inamdar (supra), the matter was referred to Larger Bench on the following questions:-
CWP NO.19194 OF 2007 13 (i)the fixation of "quota" of admissions/students in respect of unaided professional institutions;
(ii)the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and
(iii)the fee structure."
The Hon'ble Bench of the Supreme Court hearing the reference formulated following questions:-
(1)To what extent can the State regulate admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?
(2)Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether the direction made in Islamic Academy for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation? (3)Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?"
For the purpose of present petition, questions No. (1) and (2) are relevant. While answering question No. (2), the Hon'ble Supreme Court made following observations:-
CWP NO.19194 OF 2007 14 "129.In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.
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132.Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1)." Q.2. Admission procedure of unaided educational institutions.
133. So far as the minority unaided institutions are concerned to admit students being one of the components of "right to establish and administer an institution", the State cannot interfere therewith.Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.
134. However, different considerations would apply for CWP NO.19194 OF 2007 15 graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth.
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136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may CWP NO.19194 OF 2007 16 itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.
137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non- exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being CWP NO.19194 OF 2007 17 imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non- exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty."
From the ratio of the aforesaid judgment, it transpires that institutions imparting education may evolve their own common entrance test for admission to the institutions. However, the procedures for the tests so adopted must be fair and merit based without any maladministration. The State has also been given the authority to either join such institutions CWP NO.19194 OF 2007 18 for a Common Entrance Test for the un-aided/aided private institutions as also the government institutions or regulate admissions by providing a centralised and single window system. Further the emphasis is on merit based and transparent admissions. The State Government admittedly conducted the centralised test by counselling common to all the private institutions imparting elementary teacher course. Such a test was last conducted in the year 2006 for a period of two years and thereafter no such test was conducted for centralised admissions to ETT course. Admittedly, no test was conducted periodically for every academic sessions after 2006 which has left the petitioner high and dry as they had not been able to make admission to the colleges established by them. The State in its reply has attempted to justify its inaction on the ground that if admissions are made every year and students are admitted, it will generate unemployment. This trend of the State is totally unjustified. The object and purpose of education is not only to secure employment and that too in government jobs. The very object and purpose of the education is to enlighten the people, employment being one of the considerations. The State has already granted recognition to all the institutions run by the petitioner and the affiliating universities have also granted the affiliation under their respective laws in consonance with the NCTE Act and rules/regulations made there under. The institutions are required to have permanent faculty members and minimum required infrastructure. If admissions are not made periodically, the institutions are bound to suffer financially and may have to be closed. Not only this, no new entrepreneurs or willing person will come forward in this field. The existing institutions may die with the passage of time and new one will not take birth. In this manner, the State Government is not going to achieve CWP NO.19194 OF 2007 19 any public good. The State Government has a right to conduct survey and collect relevant data regarding the requirement of such institutions and may, if so desired, prevent the establishment of such institutions in future. From the reply filed, it appears that no exercise has been carried out till date. The entire stand of the State is based upon apprehensions or may be political or other considerations. Such an approach is totally unwarranted. So long as the institutions exist, State Government cannot shirk its responsibility taken upon by it to hold test for admission to such institutions for every academic year or permit the institutions to admit the students on the basis of common entrance test. Inaction of the State and its stubborn attitude has created chaotic conditions for the existing institutions and their survival is threatened.
In the totality of the circumstances, this petition is disposed of with the following directions:-
1) The State is directed to hold Common Entrance Test as per its policy before the commencement of every academic year for admission to ETT/B.Ed. Courses in the petitioner-institution and such other institutions as have already been established, recognized and affiliated with the appropriate University.
2) Based upon the test so conducted, the students will be admitted in each institution in accordance with the laid down norms and to the extent of intake capacity prescribed. If there are no norms by equitable distribution subject to intake capacity.
3) In the event the State is unable to conduct such Common Entrance Test for any academic year, it shall permit the petitioner-institutions or authorize any other authority or body to hold such a Common Entrance Test or by constituting a Committee of the representatives of the CWP NO.19194 OF 2007 20 institution(s) under the over-all control of the Director of Education of the State. In such an eventuality, the institutions shall invite applications for Common Entrance Test and adopt a fair and transparent procedure/method for admission to various courses being pursued by the institutions. The allocation of students will be on equitable basis, though preference shall be given to the students to opt for a particular institution based upon their assessment of the infrastructure and other facilities, including the proximity to their residence etc. However, such preference will be subject to intake capacity of each institution. 4) It would be appreciated if the State Government itself holds such a Common Entrance Test every year. The State Government will also constitute a Committee of experts to conduct survey regarding future requirement of such institutions and while conducting such survey, at least 1/4th of the Members of the Committee shall be the representative of the existing institutions. On completion of such survey, the State Government will take a policy decision whether to permit any more institutions to come up in the State of Punjab in general or with reference to any backward or rural area in particular. Till such survey is conducted, it shall not permit any new institution to be established in the State.
5) No order as to costs.
Note:Whether referred to reporter or not:YES