Regulators May Use Express and Ancillary Powers to Mandate Performance Appraisals and Processing Fees

1. Introduction

This judgment concerns the regulatory authority of the National Council for Teacher Education (“NCTE”) over recognised Teacher Education Institutions (“TEIs”). The immediate dispute arose from a Public Notice dated 22 September 2019 requiring all TEIs to submit an annual online Performance Appraisal Report (“PAR”) and pay a prescribed processing amount.

The respondent institutions challenged the notice on the ground that the PAR system and its proforma had not been validly approved by the Council and that the Member Secretary of the Executive Committee lacked authority to impose the requirement. Although a Single Judge dismissed the challenge, the Division Bench of the Delhi High Court quashed the notice. The NCTE appealed to the Supreme Court.

The principal issue was whether the Council’s statutory power to evolve a performance appraisal system under Section 12(k) of the National Council for Teacher Education Act, 1993 (“NCTE Act”) permitted the Executive Committee, acting through its Member Secretary, to operationalise that system by prescribing a proforma, requiring annual submission and charging a processing fee.

2. Background and Statutory Framework

2.1 Connection with the fundamental right to education

The Court placed the dispute within the broader constitutional framework of Article 21A, which guarantees free and compulsory education to children between six and fourteen years of age. Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”) requires teachers to possess minimum qualifications laid down by an academic authority. The Central Government has designated the NCTE as that authority.

The Court therefore treated teacher education as an institutional precondition for the effective exercise of the fundamental right to elementary education. Regulation of TEIs was not regarded as a merely administrative concern, but as part of the constitutional system for securing qualified teachers and quality education.

2.2 Relevant powers under the NCTE Act

Section 12 gives the Council a broad duty to take all steps it considers appropriate for the planned and coordinated development of teacher education and for the determination and maintenance of standards. In particular, Section 12(k) empowers it to:

“evolve suitable performance appraisal system, norms and mechanism for enforcing accountability on recognised institutions”.

Section 19 provides for an Executive Committee to discharge functions assigned by the Council or determined by regulations. The Act also establishes Regional Committees and gives the Council rule- and regulation-making powers within the statutory scheme.

2.3 The disputed Public Notice

At its 48th General Body Meeting on 5 February 2019, the Council reconsidered an earlier proposal for annual renewal of recognition, which had generated extensive litigation. It instead approved the collection of PARs as part of a Management Information System and authorised the NCTE to proceed through a proforma to be developed for that purpose.

The Member Secretary subsequently issued the Public Notice requiring online submission of PARs for the academic year 2018–2019. Government institutions were required to pay ₹5,000, while other institutions were required to pay ₹15,000. Non-submission could attract action under Section 17 of the NCTE Act.

3. Summary of the Judgment

The Supreme Court allowed the appeal and set aside the Delhi High Court’s decision. It held that:

• Section 12(k) expressly empowers the NCTE to establish a performance appraisal system and enforce accountability among recognised institutions.
• The Council had considered and approved the PAR proposal at its 48th meeting.
• The Executive Committee, as the executive arm of the Council, was entitled to implement that decision through its Member Secretary.
• Prescribing and uploading a proforma was implementation of the Council’s policy, not an unauthorised assumption of the Council’s legislative or policy-making function.
• Even without an express statutory provision, requiring regulated institutions to provide appraisal information would be incidental and ancillary to the NCTE’s regulatory duties.
• The payment accompanying the PAR was a processing fee supported by the regulator’s incidental and ancillary powers.
• Courts reviewing regulatory action should examine whether a mandatory statutory provision has been violated or whether the authority has exceeded its powers; they should not adopt an unduly technical or pedantic approach that disables effective regulation.

The Public Notice was accordingly declared legal and valid. No order as to costs was made.

4. Analysis

4.1 Precedents Cited

DINESH BIWAJI ASHTIKAR v. STATE OF MAHARASHTRA & Ors.

In DINESH BIWAJI ASHTIKAR v. STATE OF MAHARASHTRA & Ors., the Supreme Court had identified five duty bearers responsible for implementing the fundamental right to elementary education: the appropriate Government, local authority, neighbourhood school, parents or guardians, and elementary school teachers.

The present judgment builds upon that framework by identifying two further duty bearers:

6. TEIs responsible for educating and training teachers; and
7. the NCTE, including its Executive and Regional Committees, as the statutory regulator.

The precedent was significant because it allowed the Court to connect regulatory supervision of teacher-training institutions with the constitutional obligation to provide meaningful elementary education. The Court also reiterated that teachers play a central role in shaping children’s minds and character and in nation-building. Consequently, institutions that train teachers and the authority regulating those institutions bear correspondingly serious responsibilities.

Vijay Rajmohan v. CBI

The Court relied on Vijay Rajmohan v. CBI for the proposition that accountability consists of three essential dimensions:

• Responsibility: identifying duties and performance obligations;
• Answerability: requiring explanations and reasoned decision-making; and
• Enforceability: taking corrective action where duties are not performed.

This framework supported the conclusion that a regulator must be able to collect information, review institutional performance and act on deficiencies. A PAR is therefore not merely a bureaucratic return; it is an instrument through which responsibility is measured, explanations are obtained and statutory compliance can be enforced.

4.2 Legal Reasoning

A. Express statutory power under Section 12(k)

The strongest basis for the notice was the express language of Section 12(k). The power to “evolve” a performance appraisal system necessarily includes authority to design its operational features, obtain information from institutions and prescribe a reporting format. A statutory power to enforce accountability would become ineffective if the regulator could not require regulated institutions to report their performance.

B. Implementation is different from delegation

The High Court had emphasised the absence of material showing that the specific proforma had separately been approved by the Council or that the Council’s function had been delegated under Section 27. The Supreme Court rejected this formalistic approach.

The Council had already taken the substantive policy decision to replace annual renewal with the PAR mechanism and had authorised the NCTE to proceed through a proforma. The Executive Committee and Member Secretary merely implemented that decision. Implementation of an approved policy did not require a fresh delegation of the Council’s core statutory function.

C. Incidental and ancillary powers

The Court also held that the PAR requirement would be valid even without a specific provision expressly authorising every procedural detail. When legislation entrusts a regulator with a substantive duty, it impliedly grants powers reasonably necessary to discharge that duty.

Since the NCTE must maintain standards and enforce accountability, it must be able to collect reliable institutional data. The fact that the NCTE itself is subject to performance audit by the Comptroller and Auditor General reinforced the practical need for it to obtain performance information from the institutions it regulates.

D. Processing fee as part of regulatory administration

The Supreme Court characterised the prescribed payment as a processing fee rather than treating it as an unauthorised tax. The power to undertake a regulatory process carries with it an incidental ability to recover the costs of administering that process.

The judgment principally establishes the existence of this regulatory power. It does not contain an extensive examination of the reasonableness of the amounts or their precise correlation with administrative costs.

E. Judicial review of regulatory action

The Court articulated an important approach to judicial review. A court should ask whether:

• the regulator has violated a mandatory statutory provision; or
• the regulator has transgressed the limits of the power vested in it.

Judicial review should not become so technical that it prevents a regulator from carrying out the very functions entrusted to it. Constitutional courts have not only a duty to restrain unlawful exercises of power, but also a positive duty to ensure that regulators exercise lawful powers effectively, efficiently and accountably.

This does not eliminate judicial supervision. Rather, it directs courts to distinguish between genuine statutory illegality and curable or operational matters that fall within a regulator’s implementation authority.

F. Integration of the RTE Act and the NCTE Act

The Court read the RTE Act and the NCTE Act as complementary statutes. The RTE Act recognises the child’s right and imposes obligations on identified actors, while the NCTE Act creates the institutional machinery for ensuring that teachers are properly trained. Effective regulation of TEIs therefore contributes directly to the fulfilment of Article 21A.

5. Impact of the Judgment

5.1 On teacher education

Recognised TEIs cannot resist performance reporting merely because every procedural feature has not been separately stated in the Act or approved afresh by the Council. The NCTE may require annual institutional information, audited accounts and other performance data reasonably connected with maintaining standards and enforcing accountability.

5.2 On statutory regulators generally

The reasoning extends beyond teacher education. Regulators may exercise powers that are reasonably incidental to their express statutory responsibilities, including collecting data, prescribing procedural formats, conducting audits and recovering processing costs. The judgment supports a functional interpretation of regulatory statutes.

5.3 On judicial review

Future courts are likely to distinguish between policy formation and administrative implementation. Once a competent authority has approved a regulatory policy, its executive arm may ordinarily settle operational details unless the statute requires a different procedure. Courts should intervene where there is substantive lack of authority, breach of mandatory procedure, arbitrariness or an unrelated regulatory burden—not merely because every detail was not separately approved.

5.4 Constitutional significance

By adding TEIs and the NCTE to the list of duty bearers responsible for quality elementary education, the judgment links institutional accountability with the fundamental right under Article 21A. It recognises that the right to education depends not only on access to schools but also on the quality and competence of teachers.

6. Complex Concepts Simplified

Performance Appraisal Report

A periodic report containing information by which the regulator can assess whether an institution continues to satisfy prescribed standards.

Incidental and ancillary power

A supporting power that is not stated in exact words but is reasonably necessary to carry out an expressly conferred statutory duty.

Delegation

The transfer of authority to exercise a statutory function. In this case, the Court treated the Member Secretary’s action as implementation of an approved policy rather than a fresh exercise of the Council’s policy-making power.

Judicial review

The power of courts to examine whether public authorities acted lawfully, within their powers and in accordance with mandatory procedures.

Processing fee

An amount charged to meet the administrative cost of processing a regulatory filing or application. It differs from a tax, which is generally imposed to raise public revenue.

Duty bearer

A person or institution legally responsible for helping fulfil a constitutional or statutory right.

7. Conclusion

The Supreme Court affirmed that the NCTE and its Executive Committee possess both express and incidental authority to require recognised TEIs to submit annual Performance Appraisal Reports and pay an associated processing fee. The Council’s approval of the PAR policy was sufficient; the Executive Committee’s preparation and implementation of the proforma did not require a fresh statutory delegation.

More broadly, the judgment establishes that regulatory statutes should be interpreted in a manner that permits regulators to perform their functions effectively. Judicial review must prevent ultra vires action, but it should not disable lawful regulation through an excessively technical approach. By treating TEIs and the NCTE as constitutional duty bearers, the Court has also placed accountability in teacher education within the larger project of securing meaningful and quality education under Article 21A.