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J.B. Education Society, Banjara … vs Govt. Of A.P. And Anr. on 4 December, 1997

Andhra High Court
J.B. Education Society, Banjara … vs Govt. Of A.P. And Anr. on 4 December, 1997
Equivalent citations: 1998 (1) ALD 639
Bench: G Bikshapathy


ORDER

1. All the three writ petitions can be disposed of by a common order as the common questions of law arise in all these matters.

2. The important question that falls for consideration in all these writ petitions are
(1) the power and jurisdiction of the State Government to withhold permission for starting the Engineering Colleges after the clearance is given by the All India Council for Technical Education under the provisions of All India Council of Technical Education Act, 1987 and
(2) whether Section 20 of A.P. Education Act is repugnant to or overlaps over the provisions of All India Council of Technical Education Act, 1987.

3. Before delving into the legal issues, it is necessary to trace out certain facts in

each case for proper appreciation of the matter. Writ Petition No.27598/1997 is filed by the management of J,B. Educational Society, a registered body seeking writ of mandamus declaring that the petitioner is entitled to commence and conduct the degree courses in Engineering and Technology with academic year 1997-98 in pursuance of the approval granted by All India Council for Technical Education. The petitioner society made an application in 1995 for establishing Engineering College and made an application to the All India Council for Technical Education (hereinafter called ‘Council’ for brief). Simultaneously application was also submitted to the State Government and also the University. However, the Council could not clear the application of the petitioner society for the year 1996-97 for some reason or the other. But, finally the Council issued proceedings dated 22-9-1997 granting approval for establishment of Engineering College to conduct the courses with intake of 60 seals in each four courses namely
(1) Computer Science in Engineering,
(2) Mechanical Engineering, (3) Electrical and Electronics Engineering, and (4) Electronics and Communication Engineering. It is also the case of the petitioner that on the very same day, the Council approved four Engineering institutions including the petitioner college, but however, in respect of one institution, the Government granted permission on 25-9-1997 i.e., Sri Kalahsteeswara Institute of Technology at Srikalahasli in Chittoor District and in respect of the petitioner, no action was taken and the petitioner came to know that the Andhra Pradesh State Cabinet of Ministers decided not to grant any permission to the Engineering Colleges where there were already Engineering Colleges in the Revenue Divisions. It is the case of the petitioner that when once the approval is granted under the Act, by the Council, it is no more open for the State Government to refuse or reject the permission. Moreover it is the case of the petitioner that it has incurred heavy expenses for acquiring the land and making construction of huge buildings for the purpose of Engineering College and also deposited Rs.50 lakhs in fixed deposit for 10 years and

therefore the refusal to grant permission is wholly arbitrary and unjust.

4. Writ Petition No.27612/1997 filed by Noor Educational Society with similar averments. It is also the case of the petitioner that on 22-9-1997, the Council has granted approval and that refusal of the Government to consider the case of the petitioner for permission is illegal and arbitrary. Similar contentions were raised by the petitioner.

5. Writ Petition No.27617/1997 is filed by Siddartha Academy of General and Technical Education and Nagarjuna Institute of Technology. It is the case of the petitioner that it has established number of institutions in the State both Technical and Medical etc. However, for the purpose of establishing Engineering College at Vijayawada it acquired 20 acres of land and constructed 15,000 sq. fts. for immediate accommodation of the college. Inspection was conducted by the Council and finally the approval was granted by the Council by proceedings dated 26-9-1997. But, however, the State Government has not granted the permission. It is also the case of the petitioner that the Government has already issued Feasibility Certificate on earlier occasion and therefore the State Government has no power to refuse or withhold the permission. Under those circumstances, the petitioner seeks appropriate directions to the authorities to allot the candidates.

6. It is the common contentions of the petitioners that the provisions of All India Council for Technical Education Act, 1987 (for short’ AICTE Act’) will prevail over the A.P. Education Act and hence no permission of State Government is necessary. Even otherwise the permission shall be automatic.

7. The Government filed a common counter in alt these writ petitions. It is the case of the Government that there should be uniform distribution of the colleges throughout the State for ensuring balanced development. It also stated that the policy of the Government is to sanction colleges only in uncovered Revenue Divisions and it was also brought to the notice of the Council. The Government

also informed the Council vide letter dated 16-7-1997 that only those cases which fall in uncovered revenue divisions should be considered based on new policy. Since the petitioners seeking to establish the Engineering Colleges in covered revenue divisions, their cases were not considered by the Cabinet Sub-Committee. Hence, the Government submits that they are not entitled for permission for running the Engineering Colleges. With regard to Sri Kalahasteeswara Institute of Technology, it is the contention of the Government that it was decided to permit this Engineering College as a special case as it belongs to a Religious Charitable Trust. Hence the petitioners cannot claim any discrimination. It is stated in the counter that the policy of the State Government for sanctioning the Engineering Colleges in the uncovered revenue divisions was based on certain logic. The policy envisaged that the intervention of the State Government in regard to the location of such institutions would have a positive impact on the creation of these institutions all over the State in a uniform and evenly distributed manner. It is the case of the Government that Engineering Colleges not only contribute to the growth and development of the area where they are situate, but they also provide an opportunity to the students of that area to study in their own area thereby reducing the hardships in studying at a far away places. With this in view, the State Government decided not to permit establishment of Engineering Colleges in the covered revenue divisions. The Government have also accepted that the permission in respect of certain institutions were granted in contravention of the policy by making an exception by consulting all the political parties and that exception cannot be continued. Therefore, in nutshell the contention of the Government is that it has taken a decision to permit only establishment of Engineering College in the uncovered revenue divisions and admittedly the petitioners fall in the covered revenue divisions. In view of this, the State Government submits that they are not inclined to grant permission to the petitioners.

8. Learned Counsel appearing for the petitioners in the writ petitions Sri Koka Raghava Rao and Sri C. Kodanda Ram submit that the petitioners have acquired large extent of lands for the purpose of establishing Engineering Colleges and they have constructed a building by spending huge amounts and instruments and other items required for establishment of Engineering Colleges were purchased and installed in the college. They also made deposit of Rs.50 lakhs each in fixed deposit for 10 years. The recruitment to various posts have also been made and kept ready for commencing the course for the year 1997-98. Under these circumstances, it would not be open for the State Government to refuse permission, n is also their case that a special enactment namely All India Council for Technical Education Act, 1987 was enacted by the Parliament by virtue of powers under List 66 of Union List wherein the exclusive power is vested with the Central Government with regard to Technical Education. Whereas the power under A.P. Education Act under Section 20 is only with regard to the establishment of various educational institutions in general. Therefore, the Special Enactment legislated by the Parliament, will prevail over the A.P. Education Act to the extent of Technical Institutions namely Engineering Colleges under Article 254 of the Constitution and therefore when once the approval is granted by the Council, the permission of State Government is not necessary or alternatively the permission is automatic. They also further contend that under the Act various Committees were constituted for assessing the desirability and feasibility of establishing the Engineering Colleges and in those Committees the State Governments and also the affiliating Universities are parties. Since the decision was taken to grant permission only after consulting them, the State Government shall be deemed to have accorded permission. It is also contended that the State Government has adopted discriminatory attitudes towards the petitioners. When once the approval was granted by the Council in respect of number of institutions, on 22-9-1997, the permission was granted

by the State Government only in respect of one such approved institution viz., Sri Kalahasteeswara Institute of Technology, Sri Kalaliasti, Chittoor District. Further it is their case that discrimination cannot be meted out on the ground that particular institution is sponsored by the Charitable Trust or that the institutions were permitted in contravention of the policy after consulting the political parties. Therefore, the reasons for discrimination are wholly illegal and arbitrary. Finally also they submit that so called policy of the Government is irrational and has no nexus to the object sought to be achieved. The establishment of Engineering College has nothing to do with the development of the area and more over the students of that particular area cannot have any admissions in the colleges established in that area as the admissions is controlled by a Central Agency and the admissions are based on merit ranking. Therefore, a candidate who hails from a particular place where the institution is now permitted cannot have a right of admission in the same institution, and it is subject to the merit ranking and availability of the seats. Hence the very object of policy is frustrated. Even assuming that such a policy decision is valid, still, the policy cannot be applied retrospectively, and that at the most the policy can be made applicable in respect of the applications which are received subsequent to July, 1997. Admittedly, in the instant case, the applications were made in 1995 and in early 1997. Hence those applications have to be processed without reference to the policy of the Government. On the other hand, the teamed Advocate General submits that both the Acts namely All India Council for Technical Education Act and A.P. Education Act travel in different directions and there is no repugnancy with the provisions of these two Acts. The Council is entitled to grant permission in accordance with the AICTE Act, but that does not mean that the State Government denuded of its powers either to permit or to reject the application for establishment of the Engineering College. Under Section 20 such a power is available to the State Government. Therefore, he

submits that inspite of approval having been granted by the Council still it is open for the State Government to refuse the permission on the basis of the policy decision taken by it in the interest of the integrated and uniform development of the State.

9. The learned Counsel for the
petitioners relied on the decision of the Supreme Court in State of Tamil Nadu v. Adhiyaman Educational and Research Institute, , Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu, AIR 1996 SC 2384, and Synthetics and Chemicals Ltd. v. State of UP., . On the other hand, the learned Advocate General relied on the decision of the Full Bench of this Court in M.Sambasiva Rao @ Sambaiah v. Osmania University, Hyderabad, 1997 (2) ALD 1 and Devarakonda Educational Society, Jubilee Hills, Hyderabad v. All India Council for Technical Education, New Delhi, 1997 (2) APLJ 11.

10. Let us consider the aspect of repugnancy between the AICTE Act and also the A.P. Education Act. The AICTE Act, 1987 is a Central Act enacted with the object of regulating and coordinating the development of Technical Education system throughout the country and also for establishing proper and uniform norms and standard of technical education in India It falls under Item 66 List I of VII Schedule of the Constitution. Under Section 3, the Central Government shall appoint a Council called All India Council for Technical Education and its composition. Under Section 10 of the Act, the Council has the following powers and functions:

“10.(1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may-

(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;

(b) coordinate the development of technical education in the country at all levels;

(c) allocate and disburse out of the fund of the Council such grants on such terms and conditions as it may think fit to-

(i) technical institutions, and

(ii) Universities imparting technical education in coordination with the Commission;

(d) promote innovations, research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes;

(e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;

(f) promote an effective link between technical education system and other relevant systems including research; development organisations, industry and the community;

 (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporation norms and mechanisms       for     , enforcing accountability; 
 

 (h) formulate schemes for the initial and inservice training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers; 
 

 (i) lay down norms and standards for courses, curricula, physical and

instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; 
 

 (j)  fix norms and guidelines for charging tuition and other fees; 
 

 (k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned; 
 

 (l)  advice the Central Government in respect of grant of character to any professional body or institution in the field of technical education conferring powers, rights and previleges on it for the promotion of such profession in its field including conduct of examinations and awarding of membership certificates; 
 

 (m) lay down norms for granting autonomy to technical institutions; 
 

 (n) take all necessary steps to prevent commercialisation of technical education; 
 

 (o) provide guidelines for admission of
students to technical institutions and
Universities imparting technical   
 

 (p) inspect or cause to inspect any technical institution; 
 

(q) withhold or discontinue gp1 rants in respect
of courses programmes to such technical institutions which fail to the directions given by the Councel within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council; 
 

 (r) take steps to strengthen the existing organisations, and to set up new organisations to ensure effective discharge of the Council's responsibilities and to create positions of professional, technical and supporting staff based on requirements; 
 

 
(s) declare technical institutions at various levels and types offering courses in technical education fit to receive grants; 
 

 (t) advice the Commission for declaring any institution imparting technical  education as a deemed University; 
 

(u) set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the Council or to the Commission or to other bodies, regarding recognition or de-recognition of the institution or the programme;

(v) perform such other functions as may be prescribed.

11.(1) For the purposes of ascertaining the financial needs of technical institution or a University or its standards of teaching, examination and research, the Council may cause an inspection of any department or departments of such technical institution or University to be made in such manner as may be prescribed and by such person or persons as it may direct.

(2) The Council shall communicate to the technical institution or University the date on which any inspection under subsection (1) is to be made and the technical institution or University shall be entitled to be associated with the inspection in such manner as may be prescribed.

(3) The Council shall communicate to the technical institution or the University, its views in regard to the results of any such inspection and may, after ascertaining the opinion of that technical institution or University, recommend to that institution or University the action to be taken as a result of such inspection.

(4) All communicatiopns to a technical institution or University under this section shall be made to the executive authority thereof and the executive authority of the technical institution or University shall

report to the Council the action, if any, which is proposed to be taken for the purposes of implementing any such recommendation as is referred to in subsection (3).”

11. This Act has been made by the Parliament for the establishment of All India Council for Technical Education with a view to the proper planning and coordinated development of the Technical Education system throughout the country, promotion of qualitative improvement of such education and other allied matters. Section 3 provides for the establishment of Council and its composition. Section 10 empowers the Council to perform various functions inter alia to (c), (f), (k), (m), (n), (o) and (q). Section 11 vests the Council with power of inspection. Section 22 empowers the Council to frame rules for carrying out the purposes of the Act. While, under Section 23, the Council is entitled to frame regulations. In Unni Krishnan v. State of A.P., AIR 1993 (1) SC 645, while referring to the provisions of the Act, said :

“It is true, there is no express provision in the Act which says that no engineering college or any other college or institution imparting technical education shall be established except with the permission of the Council. But this may be for the reason that such a power was intended to be exercised by the Council itself if it thinks necessary to do so. We are of the opinion that the vast powers conferred upon the Council by Section 10, including those specified above, do extend to and entitle it to issue an order to the above effect. It can also say that even in the existing institutions, no new course, faculty or class shall be opened except with its approval. It can also pass appropriate directions to the existing institutions as well for achieving the purposes of the Act. Such an order may indeed be necessary for a proper discharge of the wide-ranging functions conferred upon the Council.”

By virtue of Section 23 of the Act, the Council
framed regulations called All India Council

for Technical Education (Grant of approval for starting new technical institutions, introduction of courses or programmes and approval of intake capacity of seats for the courses or programmes) Regulations, 1994, Regulation 4 stipulates that no new technical institution or University Technical Department shall be started etc. except with the approval of the Council. Regulation 5 contemplates form of application and Regulation 6 contemplates conditions for grant of approval. Regulation 7 contains the process of applications which says that the applications shall be filed before the Council. Under clause (4) every application from a Registered Society or a trust for approval of Technical Institution for setting up a new technical institution, shall be submitted to the Bureau of R.C. (Bureau of Regional Committee of the Council) and also simultaneously to the concerned State Government, the University or the State Board of Education and the Regional Office of its concern by the applicants. Sub-clause (4) of Regulation 7 is extracted below:

“Every application from a registered society or trust for approval of technical institution functioning on the date of commencement of these regulations or for setting up of a new technical institution at degree or diploma level or for courses or programmes and the intake capacity of seats shall be submitted to the Bureau RC and also simultaneously to the concerned State Government, the University or the State Board of Technical Education, whichever applicable, and the Regional Office concerned by the Society or Trust, as the case may be.”

On submission of such application, the Bureau RC makes a preliminary scrutiny. Under sub-clause (4), the Bureau invites, comments, recommendations from various agencies of State Government concerned, the affiliating University/State Board of Technical Education, Bureau MPCD, Bureau BOS, Bureau RA, and the Regional Office. The Regional Office shall also arrange the visit of an Expert Committee, constituted by the

Council and forward the recommendations to the Regional Committee. Number of Committees were constituted under Regulation 9 namely Expert Committee, State Level Committee, Central Task Force. While the Expert Committee is constituted by the Council in consultation with the Chairman of the Regional Committee and consists of the representatives of the State Government, Regional Officer or his nominee, the State Level Committee consists of the Chairman of the Regional Committee, Secretary of the State Government concerned, dealing wilh the Technical Education and olher Officers as mentioned in clause (4) of the Regulation 9. Central Task Force consisting of two members of the Executive Committee of the Council, Educational Planner or Administrator, 2 Expert Members, one Member from the Judiciary. The Expert Members shall be nominated provided they are not members of the Slate Level Committee. Apart from that it is also open for the Council to invite any person to associate any of these Committees. The State Level Committee constituted under sub-regulation (4) of Regulation 9 considers the recommendations of the State Government and others mentioned in sub-regulation (4), and forwards and submits its recommendations to the Central Task Force constituted under sub-regulation (5) of Regulation 9. If there is any disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the respective agencies for further consultations before making final recommendations. On the recommendation of the Central Task Force, the Council shall decide the question of grant of approval. When the application is rejected. the Council shall give the reasons. It is also open for the Council to approve with certain restrictions and modifications. A time bound schedule has been fixed in the schedule to Regulation 8(15). The Council also framed the Regulations called All India Council for Technical Education (Norms and Guidelines for Fee and Guidelines for admission in Professional Colleges) Regulations, 1994 with which we are not concerned.

12. The Andhra Pradesh Educat ion Act, 1982 is a consolidating and amending Act made by the State Legislature with the object of reforming, organising and developing the educational system in this Slate and to provide for matters connected therewith or incidental thereto. It has received the assent of the President. Chapter 3 (Sections 7 and 8) pertains to school education. Chapter 4 (Sections 9 to 16) deals with primary education and its implementation. Chapters (Section 17) pertains to examinations. Chapter 6 (Sections 18 to 33) relates to establishment of educational institutions, their administration and control Section 18 confers powers on the State Government to provide adequate facilities for imparting general, technical, special and teacher education in the State by either itself establishing and maintaining educational institutions and/or permitting any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed by the State Government. It also vests power in the State Government to take from time to time such of the steps as may be necessary or expedient for the aforesaid purpose. The educational institutions are classified under Section 19 into three categories viz.-

(1) State institutions, that is to say. educational institutions established or maintained and administered by the Government;

(2) Local Authority institutions, that is to say, educational institutions established or maintained and administered by a local authority; and

(3) Private institutions, that is to say, educational institutions established or maintained and administered by any body of persons registered in the prescribed manner.

13. Granting of permission for the establishment of educational institutions is governed by Section 20. The section has been amended by Act No.27 of 1987. On and from the commencement of the Amending

Act, 1987, no educational institutions shall be established except in accordance with the provisions of the Act. The State Government is authorised to appoint by notification a competent authority for such area or for such purposes as may be specified in the notification. It appears that the State Government may appoint for different areas in the State, different competent authorities and if it so desires, there is nothing in the Act that precludes the State Government from appointing one competent authority for the entire State. Sub-section (1) of Section 20 provides that the competent authority appointed by the Slate Government shall from time to time conduct a survey for the purpose of identifying the educational needs of the locality under its jurisdiction. Thereafter it shall issue a notification through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. Educational agency means any body of persons including that of religious or linguistic minority, entrusted with the establishment and maintenance of a private educational institution or a minority educational institution, as the case may be. In pursuance of the notification issued under sub-section (1) of Section 20 any educational agency intending to establish an educational institution may make an application for the grant of permission therefor to such authority as may be notified by the State Government. Before permission is granted, any educational agency applying for permission shall satisfy the concerned authority that there is need for providing educational facilities to the people in the locality. There are some other requirements mentioned in sub-section (3) of Section 20 that have to be fulfilled by any educational agency applying for permission for establishing an educational institution and for the purpose of this reference, it is not necessary to deal with those other requirements.

14. Individuals are prohibited from establishing private educational institutions under Section 20A which has been inserted by theAmendingAclofl987. The compelent authority is empowered under Section 21 to grant recognition in respect of any educational

institution permitted to be established under Section 20 as well as to withdraw the recognition already granted, in the circumstances mentioned therein.

15. From what is stated above, it is discernible that for the purpose of achieving the legislative object of reforming, organising and developing the educational system in the State, the Government has been vested with the power under Section 18 to either itself establish and maintain educational institutions and/or permit any local authority or a private body of persons including a religious or linguistic minority to establish and maintain educational institutions, according to such specifications as may be prescribed by it. Therefore, it is for the State Government to permit or not to permit a private body of persons including a religious or linguistic minority to establish an educational institution.

16. Under Section 20 of the A.P. Education Act, the competent authority shall from time to time, conduct a survey and to identify educational needs in the locality under its jurisdiction. In pursuance of the said notification, the persons intending to make application are permitted to submit their applications with certain conditions. Under sub-section (4), no educational institution shall be established except in accordance with the provisions of this Act and contravention is made punishable. Section 20 as amended by Act 27 of 1987, makes it clear that the State Government is empowered to permit the establishment of educational institution keeping in view the needs of the locality and educational facilities of the people in the locality.

17. It is submitted by the learned Counsel for the petitioners that under Item 25 of List III to VII Schedule, the Union Parliament as well as the State Legislature has the power to legislate on the subject of education including technical education, medical education etc. However, the above power is subject to the power of the Parliament to legislate upon the subjects falling

in Item Nos.63, 64, 65 and 66 of Union List, Entry 25 of List III is general item relating to education whereas Entry 66 of List II is a special entry, Therefore, when the matter relating to technical education including grant of permission to establish the Engineering Colleges fixing norms and standards of admissions etc. are occupied Central Act, the Education Act more especially Section 20 of the Act cannot be allowed to operate simultaneously and thus Section 20 is void being repugnant, to the provisions of the A1CTE Act, 1987. It is also further stated that the amended Sections 20 and 20A came into force from 1-6-1987 and the Parliament enacted the AICTE Act, 1987 with effect from 28-3-1988. Therefore, Section 20 of the Stale Act is repugnant to the Central Act namely AICTE Act, under clause (2) of Article 254 of the Constitution of India

18. There is no dispute about the respective lists under VII Schedule of the Constitution of India. Under VII Schedule under Article 246, the Parliament has exclusive power to make laws with respect to any matters enumerated in the List I (Union List) and in respect of the matters enumerated in List II, the State is empowered to legislate exclusively. If the State legislates on the subjects falling within List I, that will be void, inoperative and unenforceable. However, in respect of the mailers falling in List III (Concurrent List), both the Parliament and the State Legislature can legislate the matters concurrently. Thus, the Parliament and the State Legislatures have concurrent powers with respect to the subjects enumerated in the List III. But the problem arises when the entries are made in concurrent list subject to entries in Union List, and that is the issue which is the subject matter in these writ petitions. Item No.25 of Concurrent List as amended by 42nd Amendment Act reads as follows:

“25. 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.”

Incidentally, it may be stated that 42nd Constitutional Amendment Act omitted the Entry 11 List II and transferred that subjects to be combined with Entry 25 List III, as a result, the education including technical education and medical-education fell in the concurrent list subject to Entries 63, 64, 65 and 66 of List I. When once the entry is made subject to another entry the effect of it has to be considered. Entry No.66 of Union List reads as follows:

“Coordination and determination of
standards in institutions for higher education or research and scientific and technical institutions.”

As already stated by virtue of this entry, AICTE Act was enacted by the Parliament.

19. The scope of legislative powers of the Parliament and the State Legislature is now well settled. This can be traced out from Article 246 of the Constitution of India which reads as follows:

“246.(1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Union List”).

(3) Subject to clauses (1) and (2), the
Legislature of any Stale has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution, referred to as the “State List”).

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included

in a State notwithstanding that such matter is a matter enumeraled in the State List.”

20. The Supreme Court in M/s. Hoechst Pharmaceutical Ltd v. State ofBihar, , analysed this article and observed thus:

“It is obvious that Article 246 imposes limitations on the legislative powers of the Union and State Legislatures and its ultimate analysis would reveal the following essentials:

1. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I notwithstanding anything contained in clauses (2) and (3). The non obstante clause in Article 246(1) provides for predominance of supremacy of Union Legislature. This power is not encumbered by anything containing in clauses (2) and (3) for these clauses themselves are expressly limited and made subject to the non obstante clause in Article 246(1). The combined effect of the different clauses contained in Article 246 is no more and no less than this that in respect of any matter falling within List I, Parliament has exclusive power of legislation.

2. The State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the mailers enumerated in List II of the Seventh Schedule and it also has the power to make laws with respect to any matters enumerated in List III. The exclusive power of the Slate Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to clause (1) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an entry in List II which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature.

3. Both Parliament and the State Legislature have concurrent powers of legislation with respect to any of the matters enumerated in List III.

The words “Notwithstanding anything contained in clauses (2) and (3), in Article 246(1) and the words “subject to clauses (1) and (2)” in Article 246(3) lay down the principle of Federal supremacy viz., that in case of inevitable conflict between Union and State powers, the Union power as enumerated in List 1 shall prevail over the State power as enumerated in Lists II and III, and in case of overlapping between Lists II and III, the former shall prevail. But the principle of Federal supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an “irreconciliable” conflict between the Entries in the Union and State Lists. In the case of a seeming conflict between the Entries in the two lists, the Entries should be read together without giving a narrow and restricted sense to either of them. Secondly, an attempt should be made to see whether the two Entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non obstante clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of “pith and substance” appears to fall exclusively under one List, and the encroachment upon another List is only incidental.”

Referring to Article 254, which reads thus :

“254(1) If any provision of a law made by the Legislature of a State is repugnant

to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such Slate, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to 0119 of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

the Supreme Court said thus :

“Union and State Legislatures have concurrent power with respect to subjects enumerated in List III, subject only to the provision contained in clause (2) of Article 254 i.e. provided the provisions of the State Act do not conflict with those of any Central Act on the subject. However, in case of repugnancy between a State Act and a Union Law on a subject enumerated in List III, the State law must yield to the Central law unless it has been reserved for the assent of the President and has received his assent under Article 254(2). The question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e., when both the Union

and the State laws relate to a subject specified in List III and occupy the same field.”

In para 66, the Supreme Court stated thus:

“Article 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is ‘repugnant’ to a Union law relating to that subject, then, whether the Union law is prior or later in lime, the Union law will prevail and the Stale law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception, viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant Stale law, either directly, or by itself enacting a law repugnant to the State law with respect to the ‘same matter’. Even though the subsequent law made by Parliament does not expressly

repeal a State law, even then, the Stale law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A Stale law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together.”

Again the Supreme Court stated in paras 68 and 69 thus:

“The question of repugnancy under Article 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void. Article 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non obstante clause in Article 246(1) read with the opening words “subject to” in Article 246(3). In such a case, the Stale law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression “a law made by Parliament which Parliament is competent to enact” in Article 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as “List I”. But if Article 254(1) is read as a whole, it will be seen that it is expressly made subject to clause (2) which makes reference to repugnancy in the field of Concurrent List – in other words, if clause (2) is to be the guide in the determination of scope of clause (1), the

repugnancy between Union and Stale law must be taken to refer only to the Concurrent field. Article 254(1) speaks of a State law being repugnant to (a) a law made by Parliament, or (b) an existing law.

There was a controversy at one time as to whether the succeeding words “with respect to one of the matters enumerated in the Concurrent List” govern both (a) and (b) or (b) alone. It is now settled that the words “with respect to” qualify both the clauses in Article 254(1) viz. a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Article 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field.”

Therefore, repugnancy arises only in connection with the subjects enumerated in the Concurrent List. List 111 of VII Schedule as regards both the Union and State Legislatures have concurrent powers, so that the question of conflict between the laws made by both the Legislatures relating to the same subject necessarily arise. Clause (1) state that if the State law relating to Concurrent subject is repugnant to Union Law relating to that subject, then where the Union Law is prior or later in lime, the Union Law will prevail and the State Law will be to the extent of such repugnancy be void. The doctrine of occupied field arises only in cases of legislations made by the Union Parliament and the State Legislatures in respect of List I and List n respectively. However, if the Union Law trenches into the law made by the State or vice versa the laws shall be declared as void to the extent of fields occupied by the State and Central Law as the case may be. Therefore, the question of repugnancy in the instant case does not arise as the law made by the Parliament as well as the State

Legislature do not fall in the same subject of Concurrent List. But, in the instant case, we are concerned with the law made by the Parliament relating to subject which’ exclusively falls in List 66 of Union List and the law made by the State Legislature in respect of subject falling in Item 25 of List 111 which is a concurrent list. As already stated, Item 25 in the Concurrent List is subject to List 66 of Union List. In such a situation the question that falls is as to the extent of legislations that can be undertaken by the Stale or the Centre. In ALSPPL Subrahmanyam Chettiar v. Muttuswami Goundan, AIR 1941 FC 47, Gwyer, CJ., reiterated that the principles laid down by the Privy Council in a long lone of decisions in the interpretation of Sections 91 and 92 of the British North America Act, 1867 must be accepted as a guide for the interpretation of Section 100 of the Government of India Act, 1935 :

“The Febderal Legislature has full and exclusive power to legislate with respect to matters in List I, and has also power to legislate with respect to matters in List III. A Provincial Legislature (i.e. State Legislature under the Constitution) has exclusive power to legislate with respect to List II, minus matters falling in List I or List III; has concurrent power to legislate with respect to matters in List III, minus matters falling in List I. ….. The
dominant position of the Central Legislature with regard to matters in List I and List in is thus established. But the rigour of this literal interpretation is relaxed by the use of the words ‘with respect to’ which signify ‘pith and substance’ and do not forbid a mere incidental encroachment,”

In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd Khulna, AIR 1947 PC 60, it was laid down that “in distinguishing between the powers of the divided jurisdictions under Lists I, II and III of the Seventh Schedule to the Government of India Act, 1935, it is not possible to make a clean cut between the powers of the various Legislatures. They are bound to overlap from time to time, and the rule which has been evolved by the Judicial

Committee whereby an impugned statute is examined to ascertain its pith and substance or its true character for the purpose of determining in which particular list the legislation falls, applies to Indian as welt as to Dominion Legislation. In laying down that principle, the Privy Council observed:

“Moreover, the British Parliament when enacting the Indian Constitution had a long experience of the working of the British North America Act and the Australian Common Wealth Act and must have known that it is not in practice possible to ensure that the powers entrusted to the several Legislatures will never overlap.”

Therefore, it would appear that apparent conflict with the Central power had to be resolved by application of doctrine of pith and substance and incidental encroachment. The Privy Council while referring to the effect of Section 100(1) of the Government of India Act, 1935, observed thus :

“Where they come in conflict, List I has priority over Lists III and II and List III has priority over List II.”

and added

“The priority of the Federal Legislature would not prevent the Provincial Legislature from dealing with any matter within List 11 though it may incidentally trench any item in List I.”

Therefore, it is apparent that the constitutionality of the law is to be judged by its real subject-matter and not by its incidental effect on any topic of legislation is another field.

21. It is now well settled that there may not be any direct conflict between the Union and the State Legislation, where it is evident that the Union Parliament intended its legislation to be a complete and exhaustive code relating to the subject, it shall be taken that the Union law has replaced State legislation to that subject (see Deep Chand v. State of U.P., ) and Tika Ramji v. State of U.P., 1956 SCR 393. Reference may be made with advantage to

the two decisions of the Supreme Court which considered Item 66, List I of VII Schedule of the Constitution, vis-a-vis, Item 25 of List III. In the Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar, , the Supreme Court observed thus:

“The central question was whether the Gujarat University could impose Gujarati or Hindi as the exclusive media of instruction and examination and whether State legislation authorising the Gujarat University to impose such media was constitutionally valid in view of Entry 66. As it then read, Entry 11 of List II empowered the States to legislate in respect of education, including Universities, subject to the provisions of Entries 63,64,65 and 66 of List I and (Item) 25 of List III. Entry 63 of List I, as it then read, invested Parliament with the power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Benaras Hindu University, the Aligarh Muslim University and the Delhi University and other institutions declared by Parliament by law to be institutions of national importance. By reason of Entry 66, Parliament was invested with the power to legislate on “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”. Item 25 of List III conferred power upon Parliament and the State Legislatures to enact legislation with respect to “vocational and technical training on labour.” A six Judge Bench of this Court observed that the validity of State legislation on the subjects of University education and education in technical and scientific institutions falling outside entry 64 of List I as it then read (that is to say, institutions for scientific or technical education other than those financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance) had to be judged having regard to whether it impinged on the field reserved for the Union under

Entry 66. In other words, the validity of the Stale legislation depended upon whether it prejudicially affected the co-ordination and determination of standards. It did not depend upon the actual existence of Union legislation in respect of coordination and determination of standards which had, in any event; paramount importance by virtue of the first part of Article 254(1). Even if power under Entry 66 was not exercised by Parliament, the relevant legislative entries being in the exclusive Union List, a State law entrenching upon the Union field would be invalid. Counsel for the Gujarat University submitted that the power conferred by Entry 66 was merely a power to coordinate and to determine standards; that is, it was a power merely to evaluate and fix the standards of education, because the expression “coordination” meant evaluation and “determination” meant fixation. Parliament had, therefore, power to legislate only for the purpose of evaluation and fixation of standards in the institutions referred to in Entry 66. In the course of the arguments, however, it was admitted that steps to remove disparities which had actually resulted from adoption of regional media and the falling of standards might be undertaken and legislation for equalising standards in higher education might be enacted by Parliament. The Court was unable to agree with the argument. It held that Entry 66 was a legislative head and in interpreting it, unless it was expressly or of necessity found conditioned by words used therein, a narrow or restricted interpretation could not be put upon the generality of its words. Power to legislate on a subject was normally to be held to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in that subject Again, there was nothing either in Entry 66 or elsewhere in the Constitution which supported the submission that the expression “co-ordination” meant, in the context in which it was used, merely evaluation. Co-ordination in its normal connotation meant harmonising or

bringing into proper relation, in which all the things co-ordinated participated in a common pattern or action. The power to co-ordinate, therefore, was not merely a power to evaluate. It was a power to harmonise or secure relationship for concerted action. There was nothing in Entry 66 which indicated that the power to legislate on co-ordination of standards in institutions of higher education did not include the power to legislate for preventing the occurrence of or for removal of disparities in standards. By express pronouncement of the Constitution-makers it was a power to co-ordinate and, of necessity, implied therein was the power to prevent what would make coordination impossible or difficult. The power was absolute and unconditional and in the absence of any controlling reasons it had to be given full effect according to its plain and expressed intention.

In Osmania University Teachers Association v. State of Andhra Pradesh, , the Supreme Court observed thus:

“the validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986, was in question. It was enacted to provide for the constitution of a Commissionerate to advise the State Government in matters relating to higher education and to oversee its development and perform all functions necessary for the furtherance and maintenance of excellence in the standards of higher education. The legislation was upheld by the High Court. This Court on appeal held to the contrary. It observed that Entry 66 of List I gave power to the Union to see that the required standard of higher education in the country was maintained. It was the exclusive responsibility of the Central Government to coordinate and determine the standards of higher education. That power included the power to evaluate, harmonise and secure proper relationship to any project of national importance. Such coordinate action in higher education with

proper standards was of paramount importance to national progress. Parliament had exclusive power to legislate with regard to the matters included in List I and the State had no power at all in regard to such matters. If the State legislated on a subject falling within List I, the State legislation was void. The Court went on to say, “the Constitution of India vests Parliament with exclusive authority in regard to coordination and determination of standards in institutions, for higher education. The Parliament has enacted the UGC Act for that purpose.” The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter or fail in its duly to maintain a high standard in the Universities. Democracy depends for its very life on high standards of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. It is hoped that University Grants Commission will duly discharge its responsibility to the Nation and play an increasing role to bring about the needed transformation in the academic life of the Universities.”

Entry 25 List III relating to education including technical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of higher education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of

paramount importance to national progress. It is in this national interest, the legislative field in regard to ‘education’ has been distributed between List I and List III of the Seventh Schedule (See ).

22. In State of Tamil Nadu’s case (supra), the identical issue came up for consideration. The State of Tamil Nadu issued orders permitting the private managements to start new private Engineering Colleges under Self-Employment Scheme subject to fulfilment of certain conditions. Thereafter, the Trust applied to the University for affiliation and temporary affiliation was granted from year to year. Subsequently, when the inspections were made, it was found that the institution lack certain infrastructual facilities. Therefore, the authorities rejected the provisional affiliation of 1st year and also provisional affiliation of II and III year. The Trust filed the writ petition against the show cause notice. It also filed another writ petition challenging the resolution passed by the Syndicate and seeking directions for grant of provisional affiliation. The learned single Judge allowed the writ petition filed against the show cause notice and dismissed the writ petition filed challenging the resolution passed by the Syndicate. It was observed by the learned single Judge that after passing the AICTE Act, the Government has no power to cancel the permission. According to the learned Judge, only course left over to the State Government is to refer the matter to All India Council for Technical Education. The duty was imposed on the Council under the Act for recognising or de-recognising the technical institutions in the country, and that it was not open for the State Government or University to give approval or disapproval of the technical institutions each of them would follow different yardstick which will be against the object of Central Act. Aggrieved by the said decision, the Trust, the Stale Government and the University preferred writ appeals to the extent aggrieved. The Division Bench quashed the resolutions of the Syndicate and dismissed the writ appeals, of the Stale Government by holding that the Stale Government has no jurisdiction to de-recognise the College and

even the University could not have acted on the report of the High-power Committee and that it could not have refused the extension of affiliation. Aggrieved by the said orders, the State filed civil appeals before the Supreme Court. Though the question in that case was the power of the Stale Government and the University respectively to recognise and de-recognise and disaffiliate the Engineering College, but, the larger question that was seriously involved was the conflict between the Central Act on one hand and the Tamil Nadu Colleges Act, 1976 (State Act) on the other hand and the Rules made thereunder namely Tamil Nadu Private College Regulations and Rules, 1976 and the Madras University Act, 1923 and the Statute and Ordinances. It need not be disputed that the subject contained in Item No.66 of the Concurrent List has always remained special preserve of Parliament. This was so even before 42nd Amendment since Entry 11 of List II, even then was amount others, subject to Entry 66 of List I. The Supreme Court observed that after the said amendment, the constitutional position on that score, did not undergo any change. What all had happened that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. Even the new Entry 25 of List III was also the subject to the provisions among other entries including Entry 66 of List I, Therefore, what was contended before the Supreme Court was that on behalf of State that Entry 66 enabled the Parliament to lay down minimum standards, but not deprived the State Legislature from laying down standards above the minimum standards. The Supreme Court traced out the history on Articles 246, 248 and 254 and after referring to the Preamble and other provisions of the AICTE Act, observed that the Council was established under the Act to promote the qualitative improvement of the educational institution in relation to quantitative growth. It was required to ensure proper maintenance of norms and standards of technical education, and also required to provide guidelines for admission to standards. Para 22 is very apt in this regard and the same is extracted below:

“The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to de-recognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country’ are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a

national level, they have necessarily to be uniform throughout the country without which coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well known, consists of regions and population which are at different levels of progress and development or to put it differently, at differing levels of backwardness. This is not on account of any physical or intellectual deficiency but for want of opportunities to develop and contribute to the total good of the country. Unnecessarily high norms or standards, say for admission to the educational institutions or to pass the examinations, may not only deprive a vast majority of the people of the benefit of the education and the qualification, but would also result in concentrating technical education in the hands of the affluent and elite few and in depriving the country of a large number of otherwise deserving technical personnel. It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the Slates but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committee are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the State and the professional bodies on it which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well. What is further important to note is that the subject covered by this statute is fairly within the

scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations alongwith other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before Parliament. Hence, on the subjects covered by this statute, the Stale could not make a law under Entry 11 of List II prior to Forty-Second Amendment nor can it make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution.”

The provisions of Tamil Nadu Private College Regulation Act, 1976 were also considered by the Supreme Court. Section 3 prohibited establishment of any private college without the permission of the Government and inspect in accordance with the terms and conditions specified in the permission. Section 5 also gives the powers to the Government either to grant or to refuse to grant permission after considering the particulars in the application. Section 5(3) prohibits University from granting affiliation to any private college unless permission is granted under Section 5 of the Act. On comparison of these two Acts i.e. Central Act and State Act, the Supreme Court observed as follows:

“The provisions of the State Act enumerated above show that if it is made applicable to the technical institutions, it will overlap and will be in conflict with the provisions of the Central Act in various areas and, in particular, in the matter of allocation and disbursal of grants, formulation of schemes for initials and in-service training of teachers and continuing

education of teachers, laying down norms and standards for courses, physical and institutional facilities, staff pattern, staff qualification, quality instruction assessment and examinations, fixing norms and guidelines for charging tuition and other fees, granting approval for starting new technical institutions and for introduction of new courses or programmes, taking steps to prevent commercialisation of technical education, inspection of technical institutions, withholding or discontinuing grants in respect of courses and taking such other, steps as may be necessary for ensuring compliance of the directions of the Council, declaring technical institutions at various levels and types fit to receive grants, the constitution of the Council and its Executive Committee and the Regional Committees to carry out the functions under the Central Act, the compliance by the Council of the directions issued by the Central Government on questions of policy etc. which is further, the primary object of the Central Act, as discussed earlier, is to provide for the establishment of an All India Council for Technical Education with a view, among others, to plan and coordinate the development of technical education system throughout the country and to promote the qualitative improvement of such education and to regulate and property maintain the norms and standards in the technical education system which is a subject within the exclusive legislative field of the Central Government as is clear from Entry 66 of the Union List in the Seventh Schedule. All the other provisions of the Act have been made in furtherance of the said objectives. They can also be deemed to have been enacted under Entry 25 of List III. This being so, the provisions of the State Act which impinge upon the provisions of the Central Act are void and, therefore, unenforceable. It is for these reasons that the appointment of the High Power Committee by the State Government to inspect the respondent-Trust was void as has been rightly held by the High Court.”

While referring to the Central Act and the Madras University Act, the Supreme Court held that in case of Institutions imparting technical education, it is not the University, Act and the University, but it is the Central Act and the Council created under it which will have the jurisdiction to that extent after coming into operation of the Central Act The provisions of the University Act, will deemed to have become unenforceable. But, however, the provision of the University Act regarding the affiliation of Technical Colleges like Engineering College and other 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 the matters entrusted to it under Section 10 of the Central Act. The Supreme Court also held that the State Government cannot prescribe higher standards which are in conflict with the standards laid down by the Council. As the power to recognise or de-recognise the institution is given to the Council under the Act and it alone can exercise the power. Therefore, it will not be open for the body created under the State Act to exercise such a power muchless on terms and conditions which are inconsistent with or repugnant to those which are laid down under the Central Act. Even in R. Chitralekha v. State of Mysore, , the Supreme Court observed:

“This and similar other passages indicate that if the law made by the State by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of Parliament under the entry ‘coordination and determination of standards in institutions for higher education or research and scientific and technical institutions’ reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to

wipe out or appreciably abridge the Central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State Legislature made a law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it would be directly encroaching on the field covered by Entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.”

Thus, the Supreme Court held that the State Government cannot fix a different yardstick or criteria with regard to the standards and requirements for starting and running technical institutions, than what is prescribed under the Central Act. However, it would be open for the State Government to bring it to the notice of the Council if any requirement is lacking. It is also made clear by the Supreme Court that pending the modifications if any, the requirements laid down by the Council, the State Government cannot reject the permission. The following principles were deduced by the Supreme Court:

“(i) The expression ‘coordination’ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make ‘coordination’ either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the Stale legislation being repugnant to the Central legislation, the same would be inoperative.

(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.

(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central Law.

(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally so also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally.”

23. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical, Educational and Charitable Trust’s case (supra), an application was made by Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical, Educational and Charitable Trust for establishment of Medical College at Salem in Tamil Nadu. It had already established Dental College, Engineering College, Pharmacy College etc. Under Tamil Nadu Medical University Act, 1987 the application was made and it was rejected. Thereupon the Trust filed writ petition. But, finally the Tamil Nadu High Court directed the University to consider the application on merits. At the relevant point of time, Tamil Nadu State Legislature brought an amendment with effect from 24-9-1987, wherein aproviso to sub-section (5) of Section 5 was added which prescribed “no college shall be affiliated to any University unless the permission of the State Government to establish such college has been obtained and terms and conditions, if any, of such permission have been complied with. A similar proviso was also added to sub-section (7) of Section 5. When the application was again rejected by the University, the Trust filed yet another writ petition and same was allowed and remitted back for fresh consideration. Against this order both the State Government and Trust filed writ appeals. During the pendency of writ appeals, amendments were brought to certain provisions of Indian Medical Council Act with effect from 27-8-1992. Section 10A prescribed no new Medical Colleges or higher courses of study cannot be established without the previous permission of the Central Government. The High Court held that amendment introduced in clause (5) of Section 5 of the Medical University Act in no way effect the Central legislation, and held that even after insertion of Section 10A, prior permission of State Government was required for establishing a Medical College. The Trust filed special leave petition before the Supreme Court. During the pendency of SLP the Trust was directed to move the State Government for permission which was rejected on 9-3 -1994 giving various reasons. Thereafter, Medical Council was also directed to inspect the

college. The Council issued letter of extension subject to issue of essentiality certificate by the State Government. After the said letter the State Government was again approached by the Trust. On 10-1-1996 the same was again rejected on the ground that the letters have not challenged the policy of not permitting any private managements to start the medical colleges. In that scenario of the situation the matter was considered by the Supreme Court. The issue framed by the Supreme Court in paras 16 and 17 reads thus :

“Now the only impediment in the establishment of the medical college by the Trust is the stand of the State Government that permission cannot be given to a private trust to establish the medical college. This raises the question : what is the role of the State Government in the matter of establishment of a medical college ? The State Government assess its right on the basis of the proviso to subsection (5) of Section 5 of the Medical University Act, inserted by the Stale Act, which prescribes that “no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with.” The said claim is disputed by the Trust on the ground that subsequent to the enactment of the State Act, Parliament has enacted the Central Act whereby Section 10A has been inserted in the Indian Medical Council Act, 1956 and the said provision deals with establishment of a new medical college or opening of a new or higher course of study or training and prescribes that notwithstanding anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of the said section. According to the Trust Section 10A introduced by the Central Act would prevail over the proviso to Section 5(5) of the Medical University Act

introduced by the State Act. It is, therefore, necessary to consider whether and, if so, to what extent the proviso to sub-section (5) of Section 5 of the Medical University Act is applicable in the mailer of establishment of medical college in the State of Tamil Nadu The answer to this question would depend on the scope and ambit of the legislative power of Parliament and the State Legislature in this field relating to establishment of a medical college, viz. education.

The legislative power in relation to ‘education’ was earlier distributed in alt the three legislative lists in the Seventh Schedule to the Constitution. Parliament was conferred legislative power in respect of matters specified in Entries 63, 64, 65 and 66 of List I (Union List) while the State Legislatures were conferred the power in respect of matters specified in Entry 11 of List II (State List) and Parliament and State Legislatures were conferred concurrent power in respect of matters specified in Entry 25 of List III (Concurrent List). By the Constitution (Forty-second Amendment) Act. 1976, Entry 11 of List II has been deleted and Entry 25 in List III has been enlarged to cover matters which were earlier specified in Entry 11 of List II. In view of the said amendment, the legislative power in respect of education is now conferred exclusively on Parliament in respect of matters specified in Entries 63 to 66 of List I and concurrently on Parliament and State Legislatures in respect of matters specified in Entry 25 of List III.”

With regard to Article 254, the Supreme Court said in para 20 thus:

”Clause (1) of Article 254 gives overriding effect to the provisions of a law made by Parliament which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List III and if a law made by the Legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the

Legislature of the State is to be treated as void to the extent of repugnancy. Clause (1) is, however, subject to clause (2). Under clause (2), the law made by the Legislature of a State with respect to one of the matters enumerated in List III will prevail over the provisions of an earlier law made by Parliament or an existing law with respect to that matter if the law made by the Legislature of the State has been reserved for consideration by the President and has received his assent The proviso to clause (2) curtails the ambit of clause (2) by providing that Parliament can enact a law with respect to the same matter on which the State Legislature has made the law and by such law Parliament can add to, amend, vary or repeal the law made by the Legislature of a State. The provision corresponding to Article 254 was contained in Section 107 of the Government of India Act, 1935. The only difference between that provision and Article 254 is that there was no provision similar to the proviso to clause (2) of Article 254 in Section 107 of the Government of India Act, 1935. As a result of the proviso in Article 254, the legislative power of Parliament has been enlarged in the sense that it can add to, amend, vary or repeal the law made by the Legislature of the State.”

The Supreme Court thereafter considered the relevant provisions of Sections 10A, 10B and 10C of the Indian Medical Council Act, 1956 and Section 5(5) of Medical University Act. Paras 27, 28, 30, 31, 32 and 33 are relevant which are extracted below:

“27. Before we proceed to consider the ambit of the Central Act introducing Sections 10A, 10B and 10C in the Indian Medical Council Act, 1956, we may examine the field covered by the State Act which inserts the proviso in Section 5(5) of the Medical University Act. Shri Sanghi has submitted that the Medical University Act deals with the establishment of the University and recognition of medical colleges and the proviso which has been

inserted in sub-section (5) of Section 5 by the State Act is a provision relating to affiliation and recognition of medical colleges and this field is open for legislation by the State Legislature. Shri Sanghi has placed reliance on the observations of this Court in Unni Krishnan, J.P, v. State of A.P., , that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation, as the case may be, and that it is open to the State or the University according affiliation and recognition to impose such conditions as they think appropriate in the interest of fairness, merit, maintenance of standards of education and so on. It is no doubt true that recognition or affiliation of an institution has to be distinguished from the establishment of an institution. Sub-section (5) of Section 5 of the Medical University Act deals with the power of the Medical University relating to affiliation of colleges to the University and withdrawal of such affiliation. However, the proviso that has been introduced in sub-section (5) of Section 5 by the State Act imposes a condition that
“no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with.”

This would show that though Section 5(5) of the Medical University Act relates to affiliation of colleges, the proviso inserted therein deals with the establishment of a college and imposes a condition that for the purpose of affiliation of a college, permission of the State Government to establish the college is necessary. In other words, the proviso that has been inserted by the State Act, in pith and substance, is a provision relating to the establishment of a college and merely because it is placed in a provision relating to affiliation of colleges to the University the said proviso would not cease to be a provision dealing with establishment of a college.

28. We may now come to Section 10A inserted in the Indian Medical Council Act, 1956 by the Central Act which provides as follows:

“10A. Permission for establishment of new medical college, new course of study, etc.:–(1) Notwithstanding anything contained in this Act or any other law for the time being in force,–

(a) no person shall establish a medical college; or

(b) no medical college shall,–

(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training),

except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1 :–For the purpose of this section, ‘person’ includes any University or a trust but does not include the Central Government.

Explanation 2 :–For the purpose of tills section, ‘admission capacity”, in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.

(2)(a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.

(3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter; it may,–

(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council;

(b) Consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government

(4) The Central Government may, after considering the scheme and the recommendations of the Council under subsection (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in subsection (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under sub-section (1):

Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard;

Provided further that nothing in this subsection shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme,

as if such scheme has been submitted for the first lime under sub-section (2).

(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under subsection (2), no order passed by the Central Government has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and, accordingly, the permission of the Central Government required under sub-section (1) shall also be deemed to have been granted.

(6) In computing the time-limit specified in sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing any particulars called for by the Council, or by the Central Government, shall be excluded.

(7) The Council while making its recommendations under clause (b) of subsection (3) and the Central Government, while passing an order, either approving or disapproving the scheme under subsection (4), shall have due regard to the following factors, namely:

(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under Section 19A or, as the case may be under Section 20 in the case of postgraduate medical education;

(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission on capacity has adequate financial resources;

(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course of study

or training or accommodating the increased admission capacity have been provided or would be provided within the time limit specified in the scheme;

(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course or study or training or as a result of the increased admission capacity, have been provided or would be provided within the time limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;

(f) the requirement of manpower in the field of practice of medicine; and

(g) any other factors as may be prescribed.

(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned.”

30. Section 10A seeks to achieve this object by prescribing in sub-section (1) that no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of the said section. Similar permission is required for obtaining a new or higher course of study or training or for increase in the admission capacity in any course of study or training in a medical college. Sub-section (2) of Section 10A requires that every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in the prescribed form and the said scheme is to be referred to the Medical Council for its recommendations. Under sub-section (3), the scheme is required to be considered by the Medical Council having regard to the factors

referred to in sub-section (7) and Medical Council submits that the scheme together with its recommendations thereon to the Central Government. Sub-section (4) empowers the Central Government, after considering the scheme and the recommendations of the Medical Council and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), to either approve, with such condition, if any, as it may consider necessary, or disapprove the scheme and any such approval shall be a permission under sub-section (1). Under sub-section (5) the scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted and the permission of the Central Government required under sub-section (1) shall be deemed have been granted where no order passed by the Central Government has been communicated to the person or college within one year from the date of submission of the scheme to the Central Government under sub-section (2). The factors that are required to be taken into consideration by the Medical Council and the Central Government under subsection (7) include the capacity to offer the minimum standard of medical education as prescribed by the Central Government, adequacy of financial resources, necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college, adequate hospital facilities, arrangement/programme to impart proper training to students and the requirement of manpower in the field of practice of medicine.

31. It would thus appear that in Section 10A Parliament has made 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 is fully

covered by the law made by Parliament. Applying the tests laid down by this Court, it must be held that the proviso to subsection (5) of Section 5 of the Medical University Act which was inserted by the Slate Act requiring prior permission of the State Government for establishing a college is repugnant to Section 10A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10A viz. estblishment of a new medical college and would not extend to establishment of a new medical college and would not extend to establishment of other colleges.

32. The fact that the State Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the State Act. In view of the proviso to sub-article (2) of Article 254 Parliament could add to, amend, vary or repeal the Slate Act. In exercise of this power Parliament could repeal the State Act either expressly or by implication. (See Zaverbhai Amaidas v. State of Bombay, ; Deep Chand v. State of U.P., ), although the Central Act does not expressly amend or repeal the State Act but the effect of the non obstante clause in sub-section (1) of Section 10A which gives overriding effect to the provisions of Section 10A over anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force, is to render inapplicable, and thereby repeal impliedly, the proviso inserted in sub-section (5) of Section 5 of the Medical University Act in the matter of establishment of a new medical college in the State of Tamil Nadu and its affiliation by the Medical University. In other words, as a result of insertion of Section 10A in the Indian Medical Council Act, 1956 by the Central Act, with effect from 27-8-1992, the proviso to Section 5(5)

of the Medical University Act has ceased to apply in the matter of establishment of a medical college in the State of Tamil Nadu and its affiliation to the Medical University and for the purpose of establishing a medical college permission of the Central Government has to be obtained in accordance with the provisions of Section 10A. If such a permission is granted by the Central Government a further permission of the State Government under the proviso to Section 5(5) of the Medical University Act would not be required for the purpose of obtaining affiliation of such a college to the Medical University.

33. After the enactment of Section 10A by the Central Government, the Medical Council, by notification dated 20-9-1993, has made the “Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993” (hereinafter referred to as “the Regulations”) whereby a scheme for application for permission of the Central Government to establish a new medical college has been made. In the said scheme qualifying criteria for applying for permission to establish a new medical college have been laid down. One of the conditions that is required to be fulfilled by the eligible organisations is that “essentiality certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration”. Shri Sanghi has urged that even if the proviso to Section 5(5) of the Medical University Act is held to be inapplicable in the matter of establishing a new medical college and the requirement of obtaining the prior permission of the State Government for establishment of a medical college cannot be insisted upon under the said proviso, a similar requirement

has now been imposed by virtue of the quailing criteria laid down in the scheme as framed by the Regulations and that this was also insisted upon by the Central Government in his Letter of Intent dated 12-12-1995. The submission of Shri Sanghi is that the State of Tamil Nadu has considered the matter in the light of this requirement and has refused the necessary permission.”

The Supreme Court allowed the Appeals and directed the Central Government to consider the application submitted by the Trust for grant of permission to establish a new medical college in accordance with the provisions of Section 10A of the Indian Medical Council Act, 1956 without insisting upon the Trust to comply with conditions regarding obtaining essentiality certificate from the State Government. The Central Government shall consider and pass an order in this regard within a period of one month. In the event of permission being granted by the Central Government for the establishment of the medical college by the Trust, the Medical University shall consider the application of the Trust for affiliation of the said medical college to the Medical University without insisting upon the requirement of obtaining prior permission of the Stale Government for establishing the medical college- (See Thirumuruga Kirpananda Variyar’s case (supra)). Thus, it has to be seen whether the Slate Government can still refuse to grant permission under Section 20 of the A.P. Education Act in the wake of constitution of the Council under the provisions of AICTE Act. A specific power is vested with the Council to grant approval for starting a new Engineering College and regulations were framed in that process. Well built procedures have been stipulated in the Regulations. The State Government and University are associated in various committees and also in decision making process. I have already extracted relevant regulations in preceding paras. A reading of Section 20 of State Act and Section 10 of Central Act together with regulations would clearly indicate that almost a similar proceedings exist. However, under

Section 20 of A.P. Education Act stress was laid on the need for providing educational facilities to the people in the locality. Section 20 covered the educational institutions in general conforming to Item 25 of List III. The Item 25 in List III is subject to Item 66 in List I. Therefore, when certain enactment is brought into effect in pursuance of Item 66 of List I with regard to technical education, the field gets completely occupied by Central Act and Section 20 of the State Act has to give way to the Central Act. However, this overlapping is confined to the establishment of new Engineering Colleges. It cannot be said that the State again has to process the application under Section 20. Therefore, admittedly the applications were made only to the Council seeking approval and copies of such applications were sent to the State Government as required under Regulation 7. In fact more stringent conditions were framed under the regulations that those prescribed under Section 20.

24. The Supreme Court held that the provisions of the Central Statute on one hand and State Statute on other hand, being inconsistent and therefore repugnant with each other, the Central Statute, will prevail and the derecognition by the State Government or disaffiliation by the State, University on the ground which are inconsistent with those enumerated in the Central Statute will be inoperative.

25. Considering the dicta laid down by the Supreme Court in various judgments referred to above, and in view of AICTE Act being special reserve of Central Parliament under item 66 of List I, I am of the view that Section 20 of A.P. Education Act overlaps the provisions of AICTE Act only to the extent of technical institutions and I hold accordingly. However, it is brought to the notice of this Court the Full Bench decision reported in Society of St. Ann’s, Mehdipatnam, Hyderabad v. The Secretary to Government, . In the said case, the claims of minority committees to establish and run B.Ed, colleges came to be considered with reference to the provisions

of A.P. Education Act more especially under Section 20 of the Act. The Full Bench answered the questions as follows:

“(1) Even in the absence of a notification issued by a competent authority under sub-section (1) of Section 20 of Andhra Pradesh Education Act, 1982 calling for applications from the educational agencies desirous of establishing educational institutions, it is open to any educational agency including a religious or linguistic
minority; to make an application to the State Government for the grant of permission for establishing an educational institution.

(2) It is for the State Government to decide whether the educational needs of a locality or area or of the entire State shall be taken into account in considering the applications. Even in a case where the educational needs of a locality have been identified by a competent authority under subsection (1) of Section 20 of the Act, the need for providing educational facilities to the people in the locality contemplated under sub-clause (i) of clause (a) of sub-section (3) of Section 20 of the Act, shall be subject to the policy decision, if any, taken by the State Government in that regard in ‘ exercise of its power under Section 18 of the Act.

(3) All applications submitted by the educational agencies for the grant of permission for establishing educational institutions and pending on the date the Amending Act No.27 of 1987 came into force, shall be considered and disposed of in accordance with law in force on the date of consideration of such applications including the policy decision, if any, taken by the State Government in that regard and in force on the dale of such consideration.

(4) If the State Government takes a policy decision in the exercise of statutory

power vested in it under Section 18 as regards the establishment of educational institutions in [he State, on the basis of the relevant considerations referred to in the judgment, and such a policy decision is not opposed to either fundamental rights or principles of natural justice and is not found otherwise unreasonable or arbitrary, such a policy decision shall not generally be interfered with by the Courts. It will not be possible to lay down precise principles for testing the validity of a policy decision taken by the State Government. It depends upon the facts and circumstances of each case, subject to the general principles referred to by us.

26. The learned Advocate-General relied on the judgment of the Full Bench reported in M. Sambasiva Rao @ Sambaiah v. Osmania University, Hyderabad, (supra), wherein it was held that inspite of the provisions of the All India Council for Technical Education Act, still the Government has the power to refuse permission. He draws inspiration from para 54 wherein the Full Bench held that the approval of the Council is necessary’ as a condition precedent for affiliation of technical institutions, colleges or institutions by the University or recognition by the Government But, at the same time, it may not be mandatory or compulsory for the University to accord affiliation wherever the approvals accorded by the Council. The Government is also not automatically bound to recognise such institutions etc. having approval of the Council. But, such refusal of affiliation by the University or recognition by the Government, shall not be on the matters or the grounds which are already considered and covered by the AICTE Act, and for the determination of the Council while according approval. Because the Government and the University etc. are represented in the Committee of the Council and any such matters in relation to affiliation and recognition, even after the approval can only be taken by the Council, however, the decision of the Council in that regard shall be final. At the

same time, the affiliation by the University and recognition by the Government can be refused on any other grounds in its own law or any other law not covering or concerning the matters according the approval under the AICTE Act Number of issues came up for consideration before the Full Bench which are not relevant for the purpose of this case. However, the Full Bench considered the provisions of the University Grants Commission Act, 1956, A.P. Universities Act, 1991 and the All India Council for Technical Education Act, 1987 and also Stale Council Act and held that AICTE Act being-Special Act on particular subject namely Technical Education, overrides the University Grants Commission Act, being general law. It observed as follows:

“In the light of the provisions of law and the principles enunciated by the Supreme Court in the various decisions referred to above, it has to be considered whether it is open to educational agencies including religious or linguistic minorities to apply for permission to establish an educational institution of their choice even in the absence of a notification issued by the competent authority under Section 20(1) of the Act calling for applications from the educational agencies desirous of establishing educational institutions. Alongwith this question the other three questions which have been referred for the decision of the Full Bench can also be conveniently dealt with as they incidentally arise for consideration while dealing with the first question.”

With regard to the State Council Act and A.P. Universities Act, the Full Bench held at para 47 as follows:

‘ ‘The view expressed by a Division Bench of this Court in Andhra Kesari Educational Society v. Government of Andhra Pradesh, Hyderabad, , that the citizens have a fundamental right to teacher education and that the authorities have to take into account the educational need of a locality for providing educational facilities and if the

people of a particular locality have such a need of starling of the institution, they cannot be denied by way of a policy decision taken by the State Government, cannot be held to be good law. In Unni Krishnan ‘s case, 1993 (1) Scale 290, the Supreme Court held that the citizens have a fundamental right to primary education up to the age of fourteen years and that they do not have a fundamental right for higher education. We have already explained how a policy’ decision taken by the State Government under the provisions of the Act after taking into consideration the education needs of the State as a whole that no new college of education shall be permitted to be established is valid- So \ also, the decision of another Division Bench in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, 1985 (2) APLJ 77, that the policy adopted by the State Government that no new college of education shall be permitted to be started cannot be sustained as it is at variance with a legal provision contained in Section 20(3)(a)(i) cannot be held to be good law for the reasons mentioned above-Therefore, the judgments of the Division Benches in the latter two cases rendered on the basis of the earlier two Division Bench judgments that the policy of the Stale government that no new college of education shall be permitted to be established has to be read down consistent with Section 20(3)(a) do not reflect correct legal position”

While considering the regulations under AICTE Act, the Full Bench held that there cannot be any repugnancy between the Regulations and the Act in any matter covered thereunder nor there is any excess exercise of power by the Council in framing the Regulations which are intended to carry out the purpose of the Act which are not only enshrined in the Act, but also confirmed by the Supreme Court in State of Tamil Nadu’s case (supra). The contention of the University that the Act applies only to the technical institutions and not to the University was repelled. The contention of the University

that it encroaches upon the autonomy of the University enjoyed under the University Act was also rejected. The Full Bench finally held that the powers and functions of the AICTE or the Council under the Act cannot be taken to offend the autonomy of the University, same thing can also be said in relation to the Government or any other agencies concerned that their operation by virtue of any other law to include the state Act cannot be in regard to the matter covered by AICTE Act. But, most crucial issue that can be observed in the judgment is that the provisions of A.P. Education Act has not been considered wherein Section 20 of the Act empowers the Government to permit the establishment of educational institutions. Though the Full Bench made observation that mere grant of approval would not enable the University or the Government to grant affiliation or to recognise the technical institutions. But, further clarified that any refusal of affiliation or recognition by the University or the Government shall not be on the matters or the grounds which are already considered and covered by the AICTE for determination of the Council while according the approval. This finding was rendered by the Full Bench in the context of Universities Act, A.P. State Council Act and University Grants Commission Act. Admittedly, under Section 20 of A.P. Education Act, the Government is empowered to grant permission for establishment of the colleges. But, when such power is taken away by the Central Government and the entire field is now occupied by the AICTE Act in regard to the technical institution, is it open for the Government to insist that permission under Section 20 of A.P. Education Act is necessary? As already stated supra, the Council granted approval for establishment of the colleges which approval has the participation of the state Government and the University concerned. In fact the very proceedings in which the approval is granted clearly indicated that the State Government and University were consulted. This is clear from the proceedings of the Council dated 22-9-1997. Proceedings read thus:

“ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION

(A Statutory Body of Government of India)

September 22, 1997

Prof S.G. Sangameshwara,
Adviser (E&T)

To

Principal Secretary to Govt.

Higher Education Department,
Govt. of Andhra Pradesh.

Sub :–AICTE approval to Noor Educational Society 2-3-512/C/55, Chenna Reddy Nagar, Amberpet, Hyderabad for establishment of Noor College of Engineering & Technology, Door No.18-59-61, Faroob Nagar, Mandal Shad Nagar, Mehboobnagar.

Sir,

I am directed to State that based on the consultations with the concerned Stale Government and the affiliating University and on recommendations of the Regional Committee and the Expert Committee constituted by the Council and as per the provisions of the AICTE Regulations, the AH India Council for Technical Education (AICTE), is pleased to accord approval to Noor Educational Society 2-3-512/C/66, Chenna Reddy Nagar, Amberpet, Hyderabad-500 013 for the establishment of Noor College of Engineering and Technology, Door No.18-59-61, Faroob Nagar, Mandal Shad Nagar, Mehboobnagar and to conduct following degree course(s) in Engineering and Technology with an annual intake mentioned against each for the session 1997-98.

Course (s)

Intake level

Duration

X X X X X

X X X X X

X X X X X

This approval has been accorded as per the norms and standards of AICTE.

The admission will be made in
accordance with Regulations notified

by the AICTE vide GSR 476(E), dated 20-5-1994 based on the Hon’ble Supreme Court judgment dated 4-02-1993 with regard to MP (C) No.607 of 1992 in the case of Unni Krishnan JP and other etc. v. Stale Government of Andhra Pradesh and others etc. and later judgments. No Management/Institute/ Trust or Society shall announce admission directly under any circumstances. Any action contrary to this provision taken by the institution will make it liable to be derecoginsed.

Further in the event of infringement/ contravention or non-compliance of the norms and standards as prescribed by the AICTE, the Council shall lake further action to withdraw approval, and the liability arising out of such withdrawal of approval will be solely that of Management/Trust/ Society and/or Institution.

The Council may inspect/visit the Institution anytime it may deem fit to note the progress/compliance.

The attention of the management is drawn to the fact that the approval given now is only for one academic session, at the end of which an expert committee shall visit to assess if the norms and standards as stipulated by the AICTE are fulfilled, and only then will the continuation or otherwise shall be intimated.

You are requested to kindly monitor the progress made by these institutions for fulfilment of norms and standards of the Council and keep the concerned Regional Office and AICTE, New Delhi informed.

Yours faithfully,

Sd/-

(S.G. Sangameshwara)

Copy to

1. Regional Officer, Southern Regional Office, All India Council for Technical Education, Southern Regional Office, AICTE, 26, Haddows Road, Chennai-600006

He is requested to monitor compliance with the norms and standards stipulated by the Council and keep the concerned Regional Committee and the AICTE , informed of the same.

2. The Commissioner of Technical Education, Directorate of Technical Education, Govt. of Andhra Pradesh, V Floor, D Block, BRK Buildings, Hyderabad-500063.

The name of the institution and its seats for admission may be included in the approved list of the institutions for admission purposes.

3. Registrar/Secretary, JNTU Hyderabad.

He is requested for completing the process of affiliation for facilitating admissions.”

In such circumstances, the state Government cannot have additional power of again granting permission de hors the approval granted by the AICTE. It is also noticed that in respect of Technical Institutions, the Director of Technical Education was empowered to exercise the powers and perform the functions under the Act. Under Section 6 of the A.P. Education Act, the State Government may establish Board of Technical Education and one of the functions of the said Board shall be to work in liaison with Southern Regional Committee of the All India Council for Technical Education in the formulation of schemes in the State. But, as can be seen from Section 6 it is the body for coordinate development of technical education in the State at all levels below under-graduate level, affiliation or recognition of the institutions conducting the courses below the undergraduate level is one of its functions. Therefore, in respect of the under-graduate and post-graduate courses no such power is available to the Government for recognising such institutions. Therefore, this provision also gives sufficient clue that establishment of Engineering Colleges and consequential permission by the Government was not within the purview of the State Government, consequent on the AICTE Act.

27. There is no dispute that if a decision is rendered by a Full Bench in respect of the matter relating to AICTE Act and Section 20 of the A.P. Education Act, the decision shall be having the force of binding precedent. A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The prerogative of Judges is not to make law by formulating and declaring it – this pertains to the Legislature – but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is not of binding authority (Salmond on Jurisprudence, 11th Edn. Pp.223 and 224).

28. Obiter dicta though they may have great weight as such, are not conclusive authority. Obiter dicta in this context mean what the words literally signify – namely, statements by the way. If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case that of course has not the binding weight of the decision of the case and the reasons for the decision. Flower v. EBBW Wale Steel Iron & Coal Co., (1934) 2 KB 132, 154 (quoted in Stroud’s Judicial Dictionary). This doctrine was again explained by the Supreme Court in Krishena Kumar v. Union of India, thus :

“The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain ‘propositions wider than

the case itself required’. This was that Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees, 1882 (7) AC 259 and Lord Halsbury in Quinn v. Leathern, 1901 AC 495. Sir Frederic Pollock has also said : ‘Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge-made and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn. Vol.26, para 573:

“The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal’s duly to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment all are taken as forming the ratio decidendi.'”

In view of the aforesaid decision, the observation of the Full Bench in para 16 with

regard to the power of the Government to grant permission and recognise technical institution, deny after the approval is granted by the Council cannot be said to be binding precedent in this case. Since the Full Bench did not decide the provisions of Section 20 of A.P. Education Act vis-a-vis. AICTE Act, it is only the observation and not a binding precedent. Thus, the observations of the Full Bench in relation to the facts of this case, can only be said to be a obiter dicta,

29. The contention of the Advocate-General is that the Government have taken a policy decision to permit the colleges only where there are no Engineering Colleges in the Revenue Divisions also does not appeal. The State Government cannot introduce a policy contrary to the parameters laid down in the Central Act. Moreover such a policy has not been spelled-out by issuing a notification as required under Section 18 of A.P. Education Act. Further, the so-called policy of the State Government was also Drought to the notice of the Council in July, 1997 and it can only be presumed that the policy of the State Government was also available with the Council while issuing the approval. Further, the policy which was said to have been taken by the Government was only in July, 1997 and the applications are pending approval much prior to the policy. Under these circumstances, it would not be proper for the Government to refuse the permission basing on its policy. The institutions have invested huge sums of money by constructing buildings and purchase of various instruments for establishment of Engineering Colleges. They also made Rs. 50 lakhs deposit in fixed deposit for a period of 10 years and made elaborate arrangements for recruitment of teaching and non-teaching staff. Further, it is also not understood how the policy of the Government to permit the establishment of Engineering Colleges only in uncovered revenue divisions to help the students. It is the contention of the learned Advocate-General that if the college is established, the area will be developed and the persons residing in the said revenue division will have scope for

prosecuting the technical education in the college established in that revenue division. This argument is devoid of merit for the simple reason that admission to various engineering colleges in the State is governed by the statutory provisions and the allotment is based on the performance in the Entrance Examination, Therefore, there is no scope for a candidate who pass the Entrance Examination for getting a seat in the college of his choice – a candidate from Ranga Reddy district may not get a seat in the college of Ranga Reddy district, but he may get the seat in Karimnagar district, subject to his merit ranking. The admission is not confined to the candidates residing in that particular revenue divisions. It is also noticed that the Government granted permission to Sri Kalahasteeswara Institute of Technology, Srikalahasti, Chittoor district and explanation sought to be made by the Government is that it was considered as a special case, the College being established by a Charitable Trust. The Act does not contemplate any such special treatment to the colleges run by the Temple Charitable Trust. It is also not disputed that the Government granted permission to the following institutions in the covered revenue divisions after the policy:

Sl. No

Name of the College

Revenue Division

1.

Sri Kalahasteeswara Institute
of Technology

Kalahasti, Chittoor District
(Covered Division)

2.

Gokaraju Ranga Raju Institute
of Engg & Tech.

Miyapur, R.R. Dist. (Covered
Division)

3.

G. Narayanamma Institute of
Science & Tech.

Hyderabad RR Dist. (Covered
Division)

4.

Nimra College of Engg. and
Tech.

Vijayawada, Krishna District
(Covered Division)

5.

Indira Seva Sadan College of
Eng. & Tech.

Hyderabad, RR Dist (Covered
Division)

6.

Mahatma Gandhi Institute of
Tech.

Gandipet, R.R. Dist (Covered
Division)

7.

Vignan Engineering College

Guntur District (Covered
Division)

8.

Kamala Institute of Tech. and
Science.

Karimnagar Dist.

9.

Jyotishmith Institute of Tech. & Science.

Karimnagar Dist.

It is also accepted in the counter that exceptions were made in relation to the grant of permission to establish the Engineering Colleges in covered revenue divisions also after consulting The political parties. The Will of the political parties is not the criteria for establishment of the Technical Institutions. The statutory provisions alone should weigh for establishing the colleges and no other reasons can be assigned including the consultation of the political parties or the establishment of the college by Religious Institutions. Thus, the Government prima facie appears to have not been considered the matter with open mind. In any case, I need not go into this aspect in view of my finding that the provision Section 10 of AICTE Act and the regulations made thereunder still prevail over Section 20 of A.P. Education Act and Section 20 of A.P. Education Act is void and inoperative.

30. For the reasons stated above, the writ petitions are allowed and it is declared that Section 20 of A.P. Education Act in so far as it relates to the grant of permission for establishing Technical Institutions namely Engineering College and other connected matters, it overlaps Section 10 of the AICTE Act and the Regulations framed under the Act. Accordingly, it is held void and unenforceable. However, the power of the University to grant affiliation in accordance with the relevant provisions of concerned Act is not taken away by the provisions of AICTE Act and the University shall consider the matter regarding affiliation in accordance with the provisions of the Act uninfluenced by the policy decision of the State Government. In fact, in the order granting approval to establish the college with notified intake capacity in the respective courses, a copy of the order was endorsed to the

Registrars concerned for taking necessary action to affiliate colleges. Consequently, there shall be direction to the Convenor, EAMCET-97 (Engineering Admissions) to allot the candidates to the petitioner institutions forthwith in accordance with the Rules for the academic year 1997-98 subject to grant of affiliation by the concerned authority.

No Costs.

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