ORDER
M.Y. Eqbal, J.
1. In this writ application the petitioner has prayed for issuance of writ of mandamus directing the respondents particularly respondent Nos. 3 and 4. Chairman and Controller of Examination. Jharkhand Combined Entrance Competitive Examination Board to send the names of eleven eligible candidates for their admission in the Engineering College of the petitioner as per the panel published by the Board on the basis of examination conducted by it.
2. Facts of the case lies in a narrow compass.
3. An advertisement was published on 7.7.2001 by All India Council for Technical Education (hereinafter referred as the Coun-cill inviting application for establishment of new Technical Institutions for academic years 2001-02 and 2002-03. Pursuant thereto petitioner applied in prescribed form with all requisite papers and submitted the same in the office of the Council at New Delhi and also office of the Ranchi University and the State Government as per the guidelines. The representative of the petitioner appeared before the Council with all the requisite documents. At the same time, Govt. of Jharkhand constituted a Committee to assess the feasibility to establish Engineering College at Tantisilwai for granting approval by the Council. The Departmental Inspection Committee submitted report recommending for establishment of Engineering College in the State of Jharkhand under the private sector as per the policy decision of the State Government. It is contended that the State of Jharkhand through its Secretary. Department of Science & Technology granted “No objection certificate” to the petitioner’s Institute to conduct Bachelor course of Engineering (Civil
Engineering. Mechanical Engineering, Electrical Engineering, Computer Science etc. for the Sessions 2001-02. It is contended that the Govt. of Jharkhand made a request to Council to grant approval to Cambridge Institute of Technology for the Sessions 2001-2002. In terms of the request, Council constituted a Committee who visited the college question for granting approval and thereafter the Council also sent its approval for its Sessions 2001-02. Petition then accordingly, wrote letter to the State of Jharkhand allow the students for admission. It appears that the Department of Science and Technology directed the Control of Examination. Jharkhand Combined Entrance Competitive Examination Board (in short examination Board) to allow total 180 students in terms of the approval of seats by Council. In terms of the direction of the State Government the Board in its meeting dated 9.11.2001 passed a resolution to the effect that Secretary, Science and Technology Department shall obtain necessary information from the Registrar. Ranchi University, regarding status of affiliation of the college in question. As per the resolution the Syndicate of Ranchi University in its meeting approved the same and granted affiliation for the academic session 2001-02. The Secretary of the department concerned then directed the Controller of Examination of the Board, to allow 180 students to the petitioner’ institute for the aforesaid session alongwith the reservation roster. However, inspite of direction issued by the State of Jharkhand time without number it is stated that the Examination Board has done nothing till date though the Board is going to start Counselling from 8.1.2002. Petitioner therefore seeks appropriate direction upon the Examination Board to immediately and forthwith allow the students for admission in petitioner–institute for the Sessions 2001-02.
4. Respondent No. 2, Science and Technology. Government of Jharkhand has filed counter-affidavit admitting the averments made in the writ petition. It is stated that the Institute was inspected by the expert team of the Council and on the basis of recommendation of the State Government the Council accorded approval of the petitioner–Institute for the Sessions 2001-02 in four different subjects with a total in-take capacity of 180 students for the aforesaid Session. However,
it is stated that in the approval letter the Council mentioned that admission will be made through the General Counselling by the Govt. of Jharkhand only. It is further stated in the counter-affidavit that the department of the Government also decided the fees-structure for the students on free seats and payment seats.
5. Respondent Nos. 3 and 4, namely. Chairman and Controller of Examination. Jharkhand Combined Entrance Competitive Examination Board filed separate counter-affidavit stating inter alia that the State of Jharkhand adopted Jharkhand Combined Entrance Competitive Examination Act, 1995 and in accordance with the provisions of the Act the board issued prospectus for holding competitive entrance examination for the Sessions 2001-02. The Examination was held on 29.7.2001 for admission in different engineering colleges run by the State Government. According to these respondents, petitioner institute does not come within purview of University, college and institute managed and maintained by the State Government. Moreover, the said Institute was not even affiliated and/or recognised when the combined entrance competitive examination was held by the Board nor the said institute was included in the Prospectus.
6. Mr. A.K. Sinha, learned senior Counsel appearing for the petitioner put heavy reliance on the Guidelines laid down by the Supreme Court in the case of “Unni Krish-nan, J.P. and Ors. v. State of Andhra Pradesh and Ors.,” 1993(1) SCC G45. According to the learned Counsel when the petitioner institute was duly recognised and approval for taking admission in the Session 2001- 02 was accorded not only by the Council but also by the State Government then the authority of the Board have no jurisdiction to refuse sending names of eligible candidates for admission out of merit list prepared on the basis of result of combined competitive entrance examination. Learned Counsel submitted that the authorities of the Board are bound to follow the direction regarding admission issued by the State Government. On the other hand, Mr. S.B. Gadodia. learned Counsel appearing for respondent Nos. 3 and 4 submitted that the authorities of the Board are governed by the Bihar Combined entrance competitive examination Act. 1995
(hereinafter referred to as the Act of 1995). Learned Counsel drawn by attention to the relevant provisions of the Act and submitted that the Act was enacted to provide for combined competitive examination for entrance in Graduate level technical course of the University, college and institute in the State. According to the learned Counsel, the authorities of the Board have to act in accordance with the provisions of the Act and no authority including the State of Jharkhand has competence or jurisdiction to issue directions which are contrary to the provisions of the said Act. Learned Counsel submitted that more than 60 seats for admission in the engineering colleges maintained by the State government are still vacant for which Counselling in going on. In this view of the matter, answering respondent cannot recommend any student for taking admission in the petitioner institute namely, Cambridge Institute of Technology.
7. Before appreciating the rival contention of the parties, it would be useful first to refer relevant provisions of the Jharkhand Combined Entrance Competitive Examination Act, 1995. Copy of the said Act has been annexed as Annexure-A to the counter-affidavit. Section 2(d) of the said Act defines the word “University, college and institute” which means any University, college and institute managed and maintained by the State Government. Section 3 of the Act lays down the procedure for admission in vocational courses, which reads as under :
“Admission in vocational courses.–(1) Notwithstanding anything to the contrary contained in any decision, decree, order of any Court or in any Act, rule or circular, the admission in the first year of the graduate standard of Engineering, Medical Science, Dentistry, Pharmacy, Veterinary Science, Agriculture Science, Fisheries, Dairy, ‘Forestry and other courses of same nature shall be made on the basis of the combined Entrance Competitive Examination.”
Section 6 of the Act provides powers and duties of the Board which reads as under :
“Powers and duties of the Board.-The
following shall be the powers and duties
of the board;
(i) To conduct the Bihar Combined Entrance Competitive Examination;
(ii) To take necessary decisions for the implementations of the provisions of the Act:
(iii) To make regulation, with the prior permission of the State Government for the implementation of the provisions of the Act;
(iv) To make appointments and deputation of officers and employees in the Board;
(v) To perform all functions relating to the fund, account and audit of the Board;
(vi) To fix the sale price of the prospectus and application forms and determination of the Examination fees;
(vii) To prescribe Courses of studies for the examination;
(viii) Works Relating to doing and decoding of Answer Books;
(ix) To issue guide lines to the Controller of Examinations for the implementation of the provisions of the Act and to have General Supervision and Control over his work.
Section 19 of the Act gives absolute power to the State Government if there is any difficulty in the implementation of the provisions of the said Act. Section 19 reads as under :
“Removal of Difficulties.–For the removal of any difficulty arising in the implementation of the provisions of this Act the State Government may pass such orders as are not Inconsistent with the provisions of this Act.”
8. On the other hand, the All India Council for Technical Education is exercise of power under Clause (j) and Clause (o) of Section 10 read with section 23 of the All India Council for Technical Education Act. 1987 framed regulations fixing norms and guidelines in the matter of admission of students to professional colleges. The regulations are called the All India Council for Technical Education (norms and guidelines for fees and guidelines for admission in professional colleges) Regulations, 1994. The said regulation shall be referred herein after as Regulations 1994. The regulations shall apply to professional college imparting diploma, degree or equivalent courses in engineering, technology…..or programmes in any discipline
other than management.”
9. Regulation 3(b) defines the “competent authority” as under :
“Competent authority” means a Government or a University or any other authority as may be designated by the Government or the University or by law to allot students for admission to various professional colleges in a state or Union territory.”
Clause 3(g) defines “professional college” as under :
“Professional college” means any private unaided college imparting technical education and includes a private unaided technical institution.”
Regulation 5 prescribes procedure for admission as follows :
“Admission.–(1) The number of seats for admission available in a professional college shall be fixed by the council and no professional college shall be permitted to change the intake capacity except by the approval granted by the council.
(2) The competent authority shall not make admissions, from the academic year 1994, to a course or a professional college which has been started or established in violation of the Act and these regulations.
(3) Admission to a course or programme shall be limited to the number of seats which are either fixed by the council of the number of seats that existed before the enactment of the Act and no admission shall be made for the seats which have been enhanced, without the approval of the council.
(4) No admission shall be made by the competent authorities in unapproved or unrecognised professional colleges from the academic year, 1994.”
Regulation 8 provides procedure for allotment
of seats, which reads as under :
“Procedure for allotment of seats.–No Professional College shall call for applications for admission separately or individually. All applications admissions to all the seats available in such college shall be called for by the competent authority. The application forms for admission shall be issued by competent authority which shall contain a college wherein an applicant shall indicate whether he or she wishes to be admitted against a free set or
a payment seat, or both and the order of preference, under three professional colleges.
10. Now. first thing which this Court has to see is whether petitioner institute has completed the requirement of the regulations or not. As noticed above, regulation 5 says that number of seats for admission in the professional college shall be fixed by the council and no professional college shall be permitted to change the intake capacity except by the approval granted by the council, From perusal of Annexure-5 to the writ application, it appears that the Council vide letter dated 5.9.2001 addressed to the secretary, to Govt. Higher Education Department, Govt. of Jharkhand, approved and accorded approval for establishment of the petitioner institute for academic year 2001-02 with specific condition that the admission shall be made through Counselling by the Government of Jharkhand only. The Council also fixed the intake capacity and further put a condition that admission shall be made in accordance with Regulations based on Hon’ble Supreme Court’s Judgment in the case of Unni Krishnan, J.P. and Ors, v. State of Andhra Pradesh and Ors., (supra).
11. The Regulations further provides that admission shall be made by competent authority. From the definitions of the “competent authority” as defined in the regulation means a Government or a University or any other authority as may be designated by the Government or the University or by law to allot students for admission to various professional colleges in a state or union territory. It is, therefore, clear from the regulations that it is only after intake capacity is fixed for admission in professional college and approval is granted by the Council, the competent authority means a Government of the State or its agency shall allot students for admission in the professional colleges.
12. Similarly, the State of Jharkhand by Memo No. 1435 dated 5.12.2001 directed the Examination Board to allot seats for admission in the petitioner institute for the Sessions 2001-02. Now only that the Ranchi University also vide letter dated 3.12.2001 informed the Science and Technology Department, Govt. of Jharkhand the decision of the Syndicate granting a approval to the institute for the Session 2001-02. Copy of the letter
issued by Ranchi University is annexed as Annexure-8 to the writ application. It is. therefore, clear that All India Council for Technical Education fixed the intake capacity of the institute and granted approval for admission in the Session 2001-02. the University also granted approval to the petitioner institute. The State Government who is the competent authority for taking admission also directed the Examination Board to allot candidates to the petitioner institute for taking admission. Surprisingly, the Examination board which is the agency of the Government is not following the direction of Government for the reason best known to them. In my opinion, a frivolous stand has been taken by the Examination Board that since the petitioner institute is not managed and maintained by the state Government, the Board is not required to recommend any students for taking admission in the petitioner institute. Such stand of the Examination Board is wholly illegal and in violation of the Act and the Regulations.
13. In the case of Unni Krishnna, J.P. and Ors. v. State of Andhra Pradesh and Ors. (supra), the Apex Court while formulating the guidelines held as under :
“We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies–as it does, without a doubt-to the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations wherein too merit inter se has to be followed) the applicability of Article 14 cannot be excluded from the Supplemental effort/activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of the its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the State Legislature. On this ground alone, the section is liable to fail.”
14. The Apex Court further held that 50% seats in every professional college shall be filled up from the students selected on the basis of merit determined on the basis of common entrance examination for regulation admission in the colleges run by the State Government and remain in 50% seats shall be filled up by those candidates who are prepared to pay prescribed fees. It is, therefore, clear that petitioner institute is not entitled to take admission of the students of its choice rather it has to take admission of those students who have been selected in common entrance examination held by the State Government.
15. In the case of Jaya Gokul Educational Trust v. Commissioner & Secretary to Govt. Higher Education Department, 2000 (5) SCC 231. the Apex Court while considering the question of affiliation of a professional engineering college has gone to the extent that once the Council (AICTE) granted approval for the establishment of the colleges and accorded permission to take admission after fixing intake capacity, even the State Government cannot take policy decision contrary to the regulations framed under A.I.C.T.E. Act.
16. In the case of State of Tamil Nadu and Anr. v. Adhlyaman Educational & Research Institute and Ors., 1995 (4) SCC 104, the Apex Court held that in case of repugnancy between the Central Act namely, AICTE Act and the legislation made by the State, the Central Act shall prevail and the said Act shall stand impliedly repealed to the extent of repugnancy. In the instant case, both the University and the State Government have granted approval and directed the Examination Board to allot students to the petitioner institute out of the merit list for admission but the Examination Board has been taking frivolous stand contrary to the guidelines framed by the Supreme Court that the Board is not required to send names of the selected candidates to the petitioner institute for admission.
17. Besides above. I fail to understand
why the Examination Board is taking such
objection in sending the names of students
according to merit list for taking admission in
the petitioner institute when there is no objection from the side of the Council, the State
Government and the University. In my
opinion, the Examination Board is bound to obey and comply the directions of the State Government.
18. Having regard to the entire facts
and circumstances of the case and the law
discussed herein above, this writ application
is allowed and respondent Nos. 3 and 4.
namely. Chairman and Controller of Examinations are directed to send names of the
Students out of the merit list for taking ad
mission in the petitioner institute as directed
by the Science and Technology Department.
State of Jharkhand in the letter referred to
herein above.