1. In this writ petition
petitioners 1 to 4 are private engineering colleges which were permitted by the Government of Andhra Pradesh and approved by the All India Council for Technical Education, New Delhi (AICTE or Council or apex body, for brevity) and the fifth petitioner is a student aspiring to prosecute BE/B.Tech Course. The writ petition is filed for a writ in the nature of writ of Mandamus declaring the action of the Stale of Andhra Pradesh, the first respondent herein, in effecting the additional course/additional intake of seats in engineering colleges from 2000-2001 instead of 1999-2000 as mentioned in G.O. Rt. No.1307 Higher Education (EC2) Department dated 15-12-1999 as arbitrary, illegal and violative of Article 14 of the Constitution of India and to set aside the same. The brief facts stated in the affidavit accompanying the writ petition are as under.
2. The private engineering colleges in the State of Andhra Pradesh approached the first respondent in 1998 to recommend to AICTE for Additional course/additional intake of seats. The Government of Andhra Pradesh, after considering the various aspects, forwarded the proposals of the private colleges to AICTE. The Government of Andhra Pradesh also made a necessary recommendation to the AICTE to increase the intake capacity of seats as well as to
start new course from the academic year 1999-2000. Pursuant to the recommendation, the AICTE inspected the colleges. The inspection is to see whether the private engineering colleges have necessary infrastructure, laboratories, furniture etc., After inspection and having satisfied, being the apex body to watch over the technical education in the country, the AICTE granted approval for additional intake of seats in the colleges from the academic year 1999-2000. In some colleges the additional intake of seats was already effected pursuant to the approval granted by the AICTE. For certain other colleges, including the petitioner-Colleges, AICTE granted approval on 4-11-1999 for additional course/additional intake capacity of seats for the academic year 1999-2000.
3. After receiving the approval, the first respondent issued the impugned G.O. This Government Order gave effect to the additional intake capacity of seats from the academic year 2000-2001. In ordering so, the Government of Andhra Pradesh, accepted the proposal or suggestion made by the Commissioner of Technical Education, Government of Andhra Pradesh, the 2nd respondent herein. The only ground for giving effect to additional intake capacity of seats from 2000-2001 instead of 1999-2000 is that the counselling of second phase of admissions to BE/B.Tech, course is coming to an end by 18-12-1999. This Government Order is challenged as arbitrary defeating public interest, illegal and viotative of Article 14 of the Constitution.
4. The petitioners further state that the counselling for admissions to Engineering course is going on even on the date of filing of the writ petition, i.e., 21-12-1999, that as per various notifications and paper advertisements issued by the 2nd respondent as well as A.P. State Council for Higher Education (State Council, for brevity), the counselling is going on till 30-12-1999 and instructions were also issued to the
Managements of the Colleges to fill up the vacant seats as on 30-12-1999 by 5-1-2000 by issuing necessary notification. Therefore, it is alleged, the 2nd respondent’s contention is not correct. The petitioners also say that if the additional intake capacity is given effect from the academic year 1999-2000, 310 more scats can be made available to the students of Andhra Pradesh, particularly in important branches like Information Technology, Computer Science and Engineering etc. If the students are deprived of these seats, they are likely to seek admission in the neighbouring States by paying lakhs of rupees as capitalion fee. As there are adequate infrastructural facilities available, the additional 310 seats can be filled based on merit, especially when the academic session for 1999-2000 has not commenced. Such a course of action would also help the Managements of the Colleges to meet the recurring expenditure. If the petitioners are not allowed to admit additional intake for this academic year, it would affect the petitioners’ institutions not only for one year, but also for four years continuously.
5. The fifth petitioner, it is stated, is a student seeking admission in the engineering college, who secured an EAMCET rank in the range of 30000 and if the colleges are allowed to admit the students for additional intake capacity, he is likely to get a seat.
6. The matter came up before this Court on 22-12-1999. The learned GP for Higher Education, Mr. Satyanarayana Prasad, Senior Counsel, took notice on behalf of the respondents and at his request the matter was called at 2.15 p.m. again. The learned GP, after obtaining instructions, made submissions to the effect that as the admissions for engineering colleges are coming to an end and as the submissions that may be made for the purpose of interlocutory orders as well as main writ petition are the same, the matter may be
taken up on 29-12-1999 and the matter be disposed of finally. The learned senior Counsel, Mr. K. Ramakrishna Reddy, appearing for the petitioners, also requested that the matter be disposed of finally.
7. Respondents 2 and 3 filed counter on 29-12-1999. The first respondent did not file any counter. But the file relating to impugned Government Order was produced before this Court. This Court heard elaborate arguments on 29-12-1999, 30-12-1.999 and 31-12-1999 having regard to the important questions that arise for consideration in this case. With the consent of both the learned Counsel, the matter is being disposed of at the admission stage.
8. The counter filed by the 2nd respondent in a nutshell is to the effect that though the AICTE is the statutory body entrusted with coordination and determination of standards in technical institutions, nevertheless, the State has power to deal with technical education and, therefore, though the AICTE permitted additional intake capacity of seats for the academic year 1999-2000, having regard to the factual situation in matters of admission, it is permissible for the State to permit private engineering colleges to take additional intake capacity from the academic year 2000-2001. It is further stated that the admissions have been almost completed and the second phase of counselling is also coming to an end. In Para 3 of the counter-affidavit, the 2nd respondent states as follows:
“……. The petitioners colleges
received the approval of AICTE between 4-11-1999 and 12-11-1999. By this time the counselling of phase II progressed to a sufficiently advanced stage, which is the reason why these additional/ courses seats were not sanctioned by the Government for this year. The proposals dated 6-11-1999 sent from the Commissioners office to the Government
clearly explained the fact that it will not be possible to include the seats in these colleges after the start of second phase of counselling and accordingly the Government gave approval vide G.O. Rt. No.1307 dated 16-12-1999 of Higher Education (EC-2) Department for the next year i.e., 2000-2001. This explains why in certain cases additional intake of seats in certain colleges were affected already, whereas in case of petitioners colleges this was not done for this year. It is submitted here that the AICTE itself has not followed any time schedule in sanctioning these courses as they have been issuing Corrigendum to their proceedings already issued by communicating such approvals in piecemeal. In fact the AICTE has indicated in a tone of apology in their proceedings stating, “inconvenience caused is highly regretted”. As an example of this the letter of AICTE vide No.730-50-269, 275, 276(E)/ET/99 dated 4-11-1999 for petitioners colleges 2, 4 and 3. As admitted by the petitioner, the approvals were received on 4-11-1999, i.e., after the second phase of counselling had commenced and, therefore, could not be included to avoid delay in admission process…..”
9. The 2nd respondent also refers to a communication from AICTE dated 28-10-1999 by which the approval for establishment of new engineering college viz., Dr. V.R.K. Engineering College, Jagityal was communicated. In the said communication, according to the counter-affidavit, the approval was given for the academic year 1999-2000 provided the minimum number of academic days as decided by the University could be made up failing which approval may be deemed for the academic year 2000-2001. The counter-affidavit further avers that the second phase of counselling is completed on 20-12-1999 as per the schedule. The counselling conducted after that date is for the Diploma
Holders Engineering based on Engineering Common Entrance Test and not Engineering, Agriculture, Medicine Common Entrance Test (EAMCET) which is altogether a different stream and in that stream the branch of Information Technology is not there. The schedule for spot admissions is fixed on 30-12-1999 for left over seats as a result of internal sliding (the method by which more meritorious candidate is ensured a seat as per his course choice and institutional choice). Even these spot admissions are for students who have not been called for counselling due to poor rankings. Therefore, it is stated that inclusion of additional intake seats at the late stage would violate Article 14 of the Constitution because more meritorious students have already been admitted without the opportunity of seeking admission to the most sought after branches of Information Technology and Computer Science and Engineering.
10. The 2nd respondent further states that Rule 7 of the A.P. professional Educational Institutions (Regulation of Admission into under-graduate professional courses through Common Entrance Test) Rules, 1993 (hereafter called the EAMCET Rules), provides for procedure for counselling. For the academic year 1999-2000 as per this Rule there are three cut off dates prescribed by the State Council. The first cut off date is 20-12-1999 by which time the Convenor, the 3rd respondent must complete the admissions as per the programme announced by him. The second cut off date is 30-12-1999 by which the State Council must complete the admissions for the left over seats and the third cut off date is 5-1-2000 by which the Colleges shall fill the unfilled seats at their own level from the qualified students as per the merit at EAMCET-99. The State Council prescribed these cut off dates after taking approval of the admission committee as defined under clause 2(cc) of the Rules and hence the process of counselling by the
third respondent is over. If again fresh counselling for the purpose of admitting students to additional intake seats is held, the purpose of counselling which aims at merit based system of admission would be lost and less meritorious candidates would be able to get the seats in Information Technology and Computer Science and Engineering branches, which ought to have been offered to more meritorious candidates.
11. It is alleged further that the process of counselling and admissions is like a process of filtration where only the seats, which are not opted for by more meritorious candidates, are offered to candidates with less merit. This, according to the respondents, would violate principles of natural justice, in that; more meritorious candidates would be deprived of option for most sought after branches. If the additional intake capacity of seats now approved by the AICTE are to be offered again for counselling, it would mean going back to 28-10-1999 when the second phase of counselling started, which requires the entire procedure to be gone through once again. This, according to the respondents, would result in chain reaction or a ripple effect. Further, it is alleged that various conditions have to be worked out for offering seats in terms of statutory reservation for SCs. and STs. and other reservations including reservation as per A.P. Educational Institutions (Regulation of Admission) Order, 1974 (Presidential Order, for brevity). If the admissions are now made, it would cause detriment to the students already admitted as the academic session as already commenced on 20-12-1999. The 2nd respondent further states that the impugned G.O., permitting the petitioner-colleges to give effect to the additional intake from the academic year 2000-2001 is with a view to protect large number of meritorious students and hence it is not arbitrary.
12. The learned Counsel for the petitioners submits that when AICTE grants approval for the petitioners 1 to 4 for enhancement of intake capacity/additional courses for the academic year 1999-2000, it is not permissible for the State Government to permit the petitioners 1 to 4 to take new course/additional intake capacity of seats from the academic year 2000-2001. This, according to the learned Counsel, is not only illegal and beyond the power of the State Government being in contravention of the provisions of the AICTE Act, 1987 but also unreasonable and arbitrary being violative of Article 14 of the Constitution of India.
13. Refuting the contentions of the learned Counsel for the Petitioners, the learned Counsel for the respondents submits that the impugned G.O., is well within the powers of the State Government. After coming into force of the AICTE Act, the State Government is not totally denuded of its power to deal with Technical Education. Even the AICTE has permitted the enhancement of intake/additional course subject to minimum number of academic days to be completed by the Colleges and if the admissions are made now, the Colleges will not be able to meet this requirement. If a fresh counselling is to be done for the 310 additional seats now sanctioned/approved by the AICTE that would result in chaos and pell-mell and the same cannot be permitted by this Court.
14. Having regard to the rival contentions, the following points arise for consideration:
(1) What is the scope and extent of regulatory power of the State or State authorities or State bodies in matters of Technical Education covered by the legislative Entries 66 of List I and 25 of List III of the Seventh Schedule to the Constitution of India?
(2) Whether the State Government has authority and power to direct a private engineering college to start the new course/to take additional intake approved by the AICTE from the next academic year when AICTE specifically granted approval for enhancement of intake capacity of seats/starting a new course from the current academic year?
(3) Whether permitting the petitioner-Colleges to start the new course and to admit the students for additional intake from the year 1999-2000 in accordance with the Rules would result in undoing the admissions already made to the engineering colleges in the State?
(4) To what relief?
In re point No.1:
15. In this context, it is useful to notice the legal provisions governing admission to Engineering Colleges and other aspects of Technical Education.
Constitutional Provisions and AICTE Act :
16. Before and after the Constitution (42nd Amendment) Act, 1976 that came into force with effect from 3-1-1977, the subject “coordination and determination of standards in institutions for higher education or research and Scientific and Technical Institutions” remained within the competence of Parliament.
17. After the 42nd Amendment, the position remained the same except that Entry 11 of List II of Seventh Schedule was deleted and Entry 25 of List III was substituted by a new entry to the effect that the subject of Education including Technical Education, Medical Education and Universities within the legislative competence of the State shall be subject to the provisions of Entries 63, 64, 65 and 66 of List I. Therefore, after the
42nd Amendment Act, any State Law or State action shall be subject to the law made by Parliament, touching upon Technical Education in exercise of powers under Article 246(1) and (3) read with Entry 66 of List I as well as Entry 25 of List III of the Constitution. Even if there is a State Law existing, the same does not preclude or prevent the Parliament from making a law at any time with respect to the same matter including a law adding to, amending, varying or repealing the law made by the Legislature of the State. In this connection, it is useful to refer to the dicta of the Supreme Court in State of Tamil Nadu v. Adhiyaman Educational and Research Institute, . The question whether State Government has power to grant and withdraw permission to start a technical institution after coming into force of the AICTE Act fell for consideration in Adhiyaman’s case (supra). After referring to various provisions of the Constitution the apex Court ruled —
“…….Article 248 vests Parliament with
the exclusive power to make any law not enumerated in the Concurrent List or the State List including the power of making any law imposing a tax mentioned in those lists. This is a residuary power of Legislation conferred on Parliament and is specifically covered by Entry 97 of List I. In case of repugnancy in the Legislations made by Parliament and the State Legislatures which arises in the case of Legislations on a subject in List III, the law made by Parliament whether passed before or after the law passed by the State Legislature shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of a State is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has
received the assent of the President, prevail in that State. However, this does not prevent Parliament from enacting at any time any law with respect to the same matter including a taw adding to, amending, varying or repealing the law so made by the Legislature of the State.”
18. The Parliament enacted AICTE Act for the purpose of proper planning and coordinated development of technical education system throughout the country for the purpose of promotion of qualitative improvement of such education in relation to planned quantitative growth and with a view to regulate and proper maintenance of norms and standards in the technical education system. A reading of the various provisions of the AICTE Act, especially Sections 10, 11, and 23 leaves no doubt that the AICTE is the only body concerned with coordinated and integrated development of technical education system at all levels in the country. The Council is also required to ensure proper maintenance of norms and standards in technical education system and to provide guidelines for admission of students and has power to withhold or discontinue grants and de-recognise the institutions where the norms and standards laid down by it, and directions given by it are not followed. In Adhiyaman’s case (supra), the Supreme Court referred to all the provisions of the AICTE Act in an elaborate manner and in Paragraphs 22 and 34 laid down as follows:
“……. 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 derecognise
the institutions where norms and standards laid down by it and directions given by it from time to time are not followed…..
However, it is equally true that when the vacancies are available for institutions or students or teachers as the case may be, the applicants cannot be denied the same on the ground that they do not fulfil the higher requirements laid down under the State Act, if they are qualified under the Central Act. Similarly, the institutions cannot be de-recognise or disaffiliated on the ground that they do not fulfil the higher requirements under the State Act although they fulfil the requirements under the Central Act. So also, when the power to recognise or de-recognise an institution is given to a body created under the Central Act, it alone can exercise the power and on terms and conditions laid down in the Central Act. It will not be open for the body created under the State Act to exercise such power much less on terms and conditions which are inconsistent with or repugnant to those which are laid down under the Central Act.”
19. Therefore, in matters of technical education like standards of education, admission of students, prescription of course structure, prescribing qualifications for teaching staff etc., the final word is that of AICTE.
20. If there is a State enactment made under Article 246(2) or (3) read with relevant entry in List III or List II respectively, can it be taken that even then the State cannot have any say in matters of technical education. As presently we see the answer should be in the negative. There are still certain areas in which the State has a say even in matters of standards of education, subject, however, to the ultimate authority of the Central Government or an apex body
like AICTE. These issues are no more res-
Admission to Educational Institutions and EAMCET Rules:
21. The admission of students to various educational institutions into various educational courses is governed by an enactment of A.P. State Legislature and the rules made thereunder. So as to regulate admission into educational institutions and to prohibit the collection of capitation fee in the State of Andhra Pradesh, the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983, hereafter called the State Act) was enacted by the State Legislature. Section 3 of the said Act provides that subject to Rules made under the Act, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. The proviso to subsection (1) of Section 3 however mandates that admission into medical and engineering colleges shall be made only on the basis of ranking assigned in the Common Entrance Test conducted as per rules.
22. In exercise of the powers under Section 12 of the said Act, the Governor of Andhra Pradesh has promulgated the EAMCET Rules. These Rules amended from time to time provide for constitution of various authorities to deal with various stages of medical and engineering admissions. These stages include (i) calling for applications and conducting Engineering, Agriculture, Medical Common Entrance Test, popularly known as EAMCET; (ii) calling for applications by the admission committee for the purpose of allotting students to various colleges keeping in mind the institutional as well as subject (branch) choice of the rank holder; and (iii) the
concerned Government/Private college admitting students allotted by the Convenor/ Admission committee. Rule 4 of the Rules provides for eligibility criteria for admission. Rules 5 and 6 deal with conducting Common Entrance Test by the Convenor appointed by the State Council and preparation of State-wide merit list, region-wide merit list etc., by the Common Entrance Test committee. Rule 7 is relevant for the purpose of this case. It deals with procedure for admission into Government/University professional Colleges/Regional Engineering Colleges and private professional colleges. It is useful to notice the admission procedure.
23. After the publication of EAMCET results and issue of rank cards, the competent authority will issue an advertisement inviting applications for admission from qualified candidates who have been assigned ranking in the EAMCET and who are desirous of seeking admission into various professional colleges. All the applications made by the candidates who are qualified to seek admission as a consequence of obtaining rank in the EAMCET shall be scrutinised by the competent authority. After scrutinising, two categories of merit lists are to be prepared, the common merit list and category-wise merit list. The other aspect of the procedure is that the seats in all private professional institutions shall be pooled up course-wise and distributed among the three local areas of the University-Osmania University area, Andhra University Area and Sri Venkateswara University area (the State is divided into three local areas as per the Presidential Order). Sub-rules (6) and (7) of Rule 7 are important and hence they may be reproduced word for word.
“7(6) Candidates who have secured higher ranks at the Entrance Test will be called for an interview in the order of merit for selection and allotment of course/branches/institutions. For the convenience of the candidates, representatives
of all University Professional Colleges, Regional Engineering College, Warangal and Private Professional Colleges in the State shall sit at a common table. As and when each candidate gets his turn for interview in the order of merit, choice of Institutions and Branch (course of study) will be given to him, depending upon availability at the point of time with due regard to the eligibility of the candidate for a seat in a particular local area for a particular reserved category.
7(7) The selection of candidates and allotment of courses/Institutions in respect of University Professional Colleges, Regional Engineering Colleges and Private Professional Colleges shall also be solely on the basis of merit as adjudged by the rank obtained in the Entrance Test subject to the condition that the candidate should have passed the qualifying examination with the minimum marks prescribed for the Entrance Test. However, mere appearance at the Entrance Test and obtaining high rank in the merit list does not entitle a candidate to be considered for admission automatically into any course/branch/institution unless he also satisfies the rules and regulations of admission prescribed by the concerned University/Government including marks to be obtained in the qualifying examination.”
24. Sub-rules (8) and (9) of Rule 7 deal with selection and allotment of candidates for the free seats and payment seals in private professional colleges. As per sub-rule (10) of Rule 7, the competent authority shall have to give 10 days’ time to students admitted against payments seats after filling up free seats and as per sub-rule (11) candidates are selected and allotted for payment scats in private colleges as per the merit among the applicants who have exercised option for payment seats
though in a given case a candidate may have higher rank. Sub-rule (13) lays down that after completion of the admission for free scats as well as payment scats, the competent authority shall prepare a wait list of the candidates based on EAMCET ranking and publish the same along with the marks obtained by them in the EAMCLT. The said list shall be adopted by the competent authority for filling up of casual vacancies or drop out vacancies arising after the stage of selection for payment scats. This sub-rule is very clear that the competent authority shall fill up these vacancies until such date as may be prescribed and any vacancies still remaining after the cut off date can be filled by the management from the wait list. This is, however, subject to the condition that the competent authority upto the cut off date and the Management after the cut off date shall have to observe the principle of merit, rule of reservation and other prescribed norms including notification in the popular newspaper while making admissions from the wait list.
25. The subject of ‘education’ was, as discussed earlier, in the realm of State’s Legislative competency (Entry 11 of List II of Seventh Schedule) till by Constitution (42nd Amendment) Act, 1976 with effect from 3-1-1977 the subject of ‘education etc.,’ now in Entry 25 of List III. Therefore, by virtue of Article 246(3) of the Constitution, both the Parliament and the State are competent to legislate on ‘education’. Nevertheless, any law made by the State is also subject to other provisions of the Constitution including any Legislation made by Parliament under Article 246(3) of the Constitution read with relevant entry in List I. There have been many instances when a State Legislature on the subject of ‘education’ came in conflict with a Parliamentary enactment under Entry 66 of List I and these have been subject matters of decided cases before and after the 42nd Amendment to the Constitution.
26. It is useful to refer to some decided cases touching upon the legislation made by the Parliament under Entry 66 of List I and the Legislation made by the State either under Entry 11 of List II and Entry 25 of List III.
27. In Gujarat University v. Shri Krishna, , a Constitution Bench of the Supreme Court considered the constitutional validity of certain provisions of Gujarat University Act. The apex Court elaborately considered the combined effect of the provisions of Articles 246 and 254 of the Conslilution read with the relevant entries in List I, List II and List III. Interpreting the expression “subject to” in Entry 11 of List II, the majority of the Judges held as follows:
“…….. It is manifest that the extensive
power vested in the Provincial Legislatures to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List 1 and List III mentioned in item 11 of List II. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate are vested exclusively in the Parliament. Use of the expression ‘subject to’ in item 11 of List II of the Seventh Schedule clearly indicates that Legislation in respect of excluded matters cannot be undertaken by the State Legislatures….. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of Legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of ‘education including Universities’ power to legislate on that subject must He with the Parliament. ”
The Supreme Court further held–
“There is nothing in the entry which indicates that the power to legislate on coordination of standards in institutions of higher education, docs not include the power to legislate for preventing the occurrence of or for removal of disparities in standards. This power is not conditioned to be exercised merely upon the existence of a condition of disparity nor’ is it a power merely to evaluate standards but not to take steps !o rectify or to prevent disparity. ” By express pronouncement of the Constitution makers, it is a power to coordinate, and of necessity, implied therein is the power to prevent what would make coordination impossible or difficult. This power is absolute and unconditional, and in the absence of any controlling reasons, it must be given full effect according to its plain and expressed intent ion.”
28. In Osmania University Teachers Association v. State of A.P., , the Apex Court considered the constitutional validity of A.F. Commissionerate of Higher Education Act, 1986. This Court upheld the validity of the said Act and the decision of this Court was reversed by the Supreme Court holding that the said Act also deals with coordination and determination of excellence and standards of teaching and examination in the Universities and, therefore, without encroaching upon the Legislation made by the Parliament under Entry 66 of List II, the State could not possibly enact a law under Entry 25 of List III. The apex Court also noticed Prem Chand Jain v. R.K. Chhabra, , in which it was held that University Grants Commission Act, 1956 falls under Entry 66 of List I. While declaring the Commissionerate Act as void and inoperative, the Court held as follows:
“……. the Commissionerate Act has been drawn by and large in the same terms as
that of the UGC Act. The Commissionerate Act, as we have earlier seen also contains some more provisions. Both the enactments, however, deal with the same subject matter. Both deal with the coordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there, some of the words and sentences used in the Commissionerale Act may be different from those used in the UGC Act, but nevertheless, they convey the same meaning…….”
29. The Dentisls Act, 1948. the University Grants Commission Act, 1956, Indian Medical Council Act, 1956, The Indian Veterinary Council Act, 1984, The Indian Medicine Central Council Act, 1970 and All India Council for Technical Education Act, 1987 are some of the Parliamentary enactments referable to Entries 65 and 66 of List I and Entry 11 of List II or Entry 25 of List III of Seventh Schedule to the Constitution. The conflicts arising from the operation and enforceability of these Acts and the relevant State enactments have come up before the Apex Court as well as various High Courts. A reference to some of the authorities would be useful to decide as to whether the State Government can still lay down guidelines or make rules governing Higher Education.
30. So as to regulate the profession of dentistry and for the purpose of constitution of Dental Councils, the Dentists Act, 1948 was enacted. By the Amendment Act of 1993, Section 10-A was inserted which laid down that notwithstanding anything contained in the Dentists Act or any other law, no person shall establish a Dental College without the prior permission of the Central Government in accordance with the provisions of the said Act. There cannot be any doubt that Dentists Act, 1948 is an Act enacted in exercise of the power of the Union Parliament referable to Entries 65
and 66 of List I of the Seventh Schedule to the Constitution. In State of Punjab v. Remika Singh, , the Supreme Court considered the effect of Sections 10-A and 10-B of the Dentists Act. The High Court of Punjab and Haryana directed that the respondent No. 1 be admitted against the seat reserved for candidates belonging to backward classes, which had fallen vacant as a result of withdrawal of another student and also admit the second respondent after creating an additional seat. The Dental Council of India constituted under Section 3 of the Dentists Act submitted that the number of seats are fixed taking into consideration the infrastructure of a particular college and other facilities like staff and other equipment and that the High Court should not have directed to create an additional seal. Reliance was placed on Section 10-A as well as 10-B of the said Act. The Supreme Court reversed the judgment of the High Court and observed that:
“…… It cannot be disputed that technical
education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Council of India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions on ‘compassionate ground’. The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. According to us, there does not appear to be any justification on the part of the High Court, in the present case, to direct admission of respondent No.1 on “compassionate ground” and to issue a fiat to create an
The primacy of the Dental Council of India, a body created under the statute to coordinate Dental Education was upheld.
31. The Indian Medical Council Act, 1956 (the MC Act, for brevity) is an Act intended to deal with matters connected with medical profession and medical education. Though the medical colleges either in public sector or private sector are under the administrative control of the respective State Governments, the question of standards of medical education and maintenance of medical education -admission to Post-Graduate courses, reservation in Post-Graduate courses, etc., -have generated a large litigation. At one point of time, the Courts held that the Regulations or Instructions issued by the Medical Council of India (a body constituted under Section 3 of the MC Act) under Section 33 of the said Act or otherwise are only recommendatory in nature and not binding. In a recent judgment, the apex Court overruled three earlier judgments of the Supreme Court and categorically held that the Regulations/Instructions issued by the Medical Council of India are binding on all the authorities and that they are atone singularly applicable in matters of medical education.
32. In Medical Council of India v. Silas Nelson, , the Supreme Court held that where the Medical Council of India had come to the conclusion that there ‘cannot be a migration from unrecognised institution to a recognised medical college, the High Court was not justified in holding that there was equivalence of course for admission to I year MBBS course in the two institutions and that the candidate was entitled to be transferred to
the I year MBBS course in the recognised Medical college.
33. In Vinay Shankar v. Director General of Health Services, , it was held that even where the Supreme Court has observed that the State Government may absorb the local candidates who were admitted against seats earmarked for All India quota by increasing the number of seats, still the Medical Council of India cannot abdicate its statutory obligation and permit increase without application of mind. Again in Arun Kumar Agarwal v. State of Bihar, , it was held that where a University had started a pot-graduate course with the consent of Medical Council and the same was recognised by the State Government, the plea that the degree was of no value is not maintainable.
34. In State of M.P. v. Nivedita Jain, , the Court decided the validity of State Government’s order relaxing the conditions relating to minimum qualifying marks for students belonging to SC and ST for selection to Medical Colleges in the State. By the executive order, the minimum qualifying marks were reduced to zero (0). The respondent, Nivedita Jain, filed writ petition in the High Court of Madhya Pradesh challenging the validity of the order of the State Government inter alia on the grounds that the Government Order contravenes Regulation II of the Medical Council of India and would be hit by Section 19 of the Indian Medical Council Act and that the impugned order enables less qualified candidates to get admission to MBBS course and, therefore, it is violative of Articles 14 and 15 of the Constitution of India. The writ petition was allowed by the High Court striking down the Government order. The State Government carried the matter in appeal to the Supreme Court by Special Leave. It was contended by the Slate Government that the provisions of Regulation II of the Medical Council of
India is directory in nature and are not mandatory and that it is open to the State to make rules which may not be in accordance with the provisions contained in the said Regulations for admission to medical colleges. The Supreme Court accepted the contention and it was held that though the question of eligibility for admission into medical courses comes within the power and jurisdiction of the Medical Council, the question of selection of candidates out of the candidates eligible to undergo medical course does not come within the purview of the Medical Council. Further, in Para 20, of the judgment, the Apex Court observed as follows:
“…… We are of the opinion that the use
of the words ‘should be’ in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of recommendation. Regulation I which lays down the conditions or qualifications for admission into Medical course comes within the competence of the Council under Section 33 of the Act and is mandatory and the Council has used language to manifest the mandatory character clearly, whereas Regulation II which deals with the process or procedure for selection from amongst eligible candidates for admission is “merely in the nature of a recommendation and directory in nature, as laying down the process or procedure for selection for admission of candidates out of the candidates eligible or qualified for such admission under Regulation I………”
35. The decision of the Supreme Court in Nivedita Jam (supra), was upheld by a Division Bench of the Supreme Court in Ajay Kumar Singh v. State of Bihar, , wherein it was held that Entry 66 in List I does not take in the selection of candidates for regulation of admission to institutions of higher education because standards come into picture after admissions are made.
36. In Dr. Ambesh Kumar v. Principal, LLRM Medical College, Meerut, , the question before the Court was whether the State can impose an additional qualification in addition to the qualifications prescribed by the Medical Council of India and Regulations framed by the Central Government. The Court referred to State of A.P. v. Lavu Narendranath, , R. Chitralekha v. Stale of Mysore, and P. Rajendran v. State of Madras, and held that —
“On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated 15-12-1982 has in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List 1 of Seventh Schedule to the Constitution. There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MDBS examination by the candidates has not in anyway encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the Central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification…..”
37. In Dr. Preeli Srivastava v. State of Madhya Pradesh, , the judgments in Nivedita Jain, Dr. Ambesh Kumar and Ajay Kumar Singh’s v case (supra), were considered and the Constitution Bench of the apex Court, by majority of 4:1 over ruled the dicta of the earlier judgments that the regulations made by the Medical Council of India are directory and not mandatory and further held that the Universities are
bound to comply with the standards prescribed by the Medical Council of India.
38. In Preeti Srivastava’s case (supra), the question before the Court was whether the UP PC Medical Education (Reservation for SC, ST and other Backward Classes) Act, 1987 prescribing 20% minimum qualifying marks for reserved category of candidates appearing in PG Medical Entrance test is valid or not. Similar question was also raised with reference to a Government order of the State of Madhya Pradesh reducing the minimum qualifying marks for the reserved categories. The apex Court referred to Article 246 and Entries 63, 64, 65 and 66 of List I and Entry 25 of List MI of the Seventh Schedule to the Constitution and observed that though the State has right to control education including Medical Education, so long as the field is not ‘occupied’ by the Union Legislation, when once the field is occupied by the Union, the State will not be able to legislate in the field. In the words of the Supreme Court —
“Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education, including Higher Medical Education, State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject, it is necessary to remember that from 1977 Education, including inter alia, medical and University Education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. “
39. The earlier view that the Regulations made buy the Medical Council do not cover the admission procedures was held to be incorrect. While holding that norms of admission have direct impact on
the standards of Education, the Court held that the State is competent to lay down qualification in addition to those prescribed under Entry 66 of List I so as long as the same do not lower the standards prescribed by the Union. The Supreme Court further field:
“It would be incorrect to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education……”
40. Section 20 of the Medical Council Act provided that Medical Council is competent to prescribe standards of PG Medical Education for guidance of the Universities. Referring to the provisions of sub-section (1) of Section 20 of the MC Act, the Supreme Court laid down that Universities have to be guided by the standards prescribed by the Medical Council of India and must shape their programmes accordingly. In view of the various provisions of the MC Act empowering the Medical Council to grant recognition to Medical Colleges and to grant recognition to medical qualifications of any Medical institution, it was observed in Preeti Srivastava’s case (supra), that the
Universities must necessarily be guided by the standards prescribed under Section 20(1) of the MC Act.
41. Indian Medicine Central Council Act (Indian Medicine Act, for brevity) is also a Parliamentary enactment, which is referable to Entry 66 of List 1. The Act is intended to provide for recognition of medical qualifications in Indian Medicine. The Act confers power on the Central Council of Indian Medicine to coordinate with standards of education in Indian Medicine. In Dr. A.K. Sabhapathy v. State of Kerala, , the question raised was relating to the validity of the first proviso Section 38 of Travancore-Cochin Medical Practitioners Act, 1953. The said proviso empowered the Government to relax the pre-condition enabling a person to practice modern medicine, Homeopathic Medicine or Ayurvedic medicine, to relax in case of any person. The said provision was contrary to the provisions of Indian Medical Council Act. It was accordingly challenged before the Kerala High Court. The challenge to the proviso to Section 38 of the said Act was rejected. The Supreme Court reversed the judgment of the Kerala High Court. After referring to the leading authorities on the question of repugnancy under Article 254 of the Constitution in A.S. Krishna v. Stale of Madras, , Hoechst Pharmaceuticals Ltd. v. State of Bihar, , M. Karunanidhi v. Union of India, and other provisions of Medical Council Act as well as Indian Medicine Act, the Supreme Court held that the proviso to Section 39 of the said Act insofar as it empowers the State Government to permit the person to practice Allopathic system of medicine even though he does not possess the recognised medical qualification is inconsistent with the provisions of Sections 15 and 21 of the Indian Medicine Act. Thus, the Supreme Court recognised the over-riding effect of the Central Legislation over the State Legislation in matters of higher education
and medical education when there is a Central Legislation for the purpose of coordination of higher education occupying the field.
42. In a recent judgment in Veterinary Council of India v. Indian Council of Agricultural Research, (2000) 1 Scale 32, a Division Bench of the Supreme Court again considered the similar constitutional question as was raised in Preeti Srivastava’s case (supra). The Veterinary Council of India is a body constituted under Section 3 of the Indian Veterinary Council Act, 1984 (VC Act, for brevity).
43. The Veterinary Council is entrusted with the duty and function of regulation of veterinary practice and matters connected therewith. It is an enactment made invoking Article 252 of the Constitution as the subject matter fell in the Slate List vide Entry 15 of List II and the Concurrent List vide Entry 25 of List III. The Veterinary Council of India framed regulations relating to standards of Veterinary Education, called Indian Veterinary Council of India (Minimum standards of Veterinary Education) Degree Course (BVSC & AH) Regulations, 1993. Regulation 5.8 of the same provided that 15% total number of seats shall be reserved to be filled on All India basis through a Common Entrance Examination to be conducted by the Veterinary Council of India. For the academic years 1995-96 and 1996-97 the Veterinary Council conducted entrance examination. However the Indian Council of Agricultural Research (ICAR) issued a Notification in Employment News Bulletin stating that the ICAR will conduct All India Common Entrance Test for filling up 15% of the seats in Agricultural Universities. The Veterinary Council filed a suit in Delhi High Court seeking a declaration and permanent injunction. A learned single Judge granted the same. ICAR carried the matter in appeal against the injunction order. They also filed a writ petition questioning
Regulation 5.8 of the Regulations made by the Veterinary Council. The Appeal as well as the writ petition filed by ICAR ended in their favour. A Division Bench of the Delhi High Court had taken the view that since the Veterinary Council Act did not contemplate any examination being conducted by the Council for regulating admissions to Veterinary institutions, Regulation 5.8 is ultra vires. The High Court was also of the opinion that the power to prescribe the minimum standards of education does not impinge the right to regulating admissions to the colleges.
44. But the apex Court reversed the judgment of Delhi High Court. Referring to the provisions of Veterinary Council Act, the Court held that it is no longer possible to argue that norms for admission come into picture only after admissions are made and have no connection with admission. The Supreme Court relied on the dicta in Preeti Srivastava’s case and observed as follows:
“…. In view of the judgment of the Constitution Bench in Dr. Preeti Srivastava and another v. State of M.P. and others, (1999) 1 SCC 120, it is no longer possible to argue that norms for admission come into picture only after admissions are made and have no connection with ‘standards of education’. On the contrary, regulation of admissions has a direct impact on the maintenance of standards of education and in exercise of its power to prescribe and maintain standards of education, the VCI has the right as well as an obligation to regulate admissions to the veterinary institutions against the 15% All India quota by framing appropriate regulations.”
45. Before noticing the principles that emerge from these decided cases it is also useful to refer to the judgments of the apex Court and this Court after the AICTE Act has come into force.
46. In Adhiyaman’s case (supra), the Supreme Court referring to all the provisions of the AICTE Act held that the expression ‘coordination’ used in Entry 66 of Union List include power to do all things in matters of higher education including Technical Education. The power is absolute and unconditional and in the absence of valid compelling reasons, it must be given its full effect according to its plain and express intention. If the State Legislation is in conflict with the Central legislation and encroaches upon the Legislation including the subordinate Legislation made by the Centre to give effect to Entry 66, the State action would be void and inoperative. The AICTE is all powerful under Section 10 of the AICTE Act even to lay down guidelines for admission of students to vacant positions and the same cannot be denied by the State on any other ground. Any body created under the said Act or any State authority has no power or authority to act in contravention or inconsistent with the guidelines and Regulations or orders framed or issued by the AICTE (see Paras 22 and 34 of Adhiyaiman ‘s case (supra)).
47. A Full Bench of this Court in Sambasiva Rao v. Osmania University, 1997(2) AID 1 (FB), considered the Constitutional validity of AICTE Act and other related questions. The main contention of the petitioner as pro bono publico was that the Osmania University recognised number of technical institutions imparting MBA course in the State without prior approval from the AICTE and thereby violated Regulation 4 of the Regulations made by the AICTE. The Osmania University as well as the State Government defended their action contending that the provisions of AICTE Act arc only directory and the same do not take away the powers of the University to affiliate colleges and conduct courses. It was also contended that Section 10(k) of the AICTE Act is not mandatory and only directory and, therefore, the Regulations framed by the AICTE under
Section 23 of the Central Act are beyond the scope of Entry 66 of List I and hence not binding on the University. Relying on the judgments of the Supreme Court in Adhiyanian’s case (supra), the contentions of the respondents were rejected and in Para 56 of the judgment, the Full Bench held–
“…..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 Universities to accord affiliation wherever the approval is 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 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 Committees of the Council and any such mailers in relation to affiliation and recognition even after the approval can only be taken up with the Council, however the decision of the Council in that regard shall be final…… ”
48. A Division Bench of this Court in
Government of A.P, v. J.B. Educational Society, (DB), again considered the question of supremacy of the provisions of the AICTE Act and Regulations framed by the AICTE. The Division Bench referred to the judgments of the Supreme Court in Unnikrishnan v. State of A.P., , Adhiyaman’s case (supra), Sambasiva Rao’s case (supra) and held that though a private
engineering College cannot establish the institution without the permission of the State Government, the provisions of Section 20(3)(a)(i) of the A.P. Education Act insofar the same empowers the State to decide the location of the private college trenches and encroaches upon the provisions of the AICTE Act and, therefore, repugnant to the Central Act. The Court further held that–
“…… Section 20(3)(a)(i)D of the State
Act is repugnant to Section 10(1)(a) of the Central Act as void and inoperative and that the State Government has no legislative competence to refuse or withhold permission for establishing any Private Engineering College in the covered Revenue Divisions as per the State Government’s policy after the Council grants approval……”
49. The principles of law insofar as they are relevant for the purpose of this case emerging from the decided cases may now be summarised as under:
(A) After the 42nd Amendment to the Constitution, by virtue of Entry 66 of List 1 of the Seventh Schedule to the Constitution, any State Law made under Entry 25 of List III will be repugnant if the State Law is inconsistent with the provisions of the law made by the Parliament.
(B) The use of the expression ‘subject to’ in Entry 25 of List III clearly indicates that the Legislation in respect of education including Technical Education, Medical Education and University Education, to the extent it is entrusted to the Union Parliament whether such power is exercised or not shall be deemed to be restricted. In other words, if a subject of Legislation is covered by Entries 63 to 66 of List I, even if it falls otherwise within the larger field of ‘education including Technical Education,
Medical Education and University Education’, the power to legislate on that subject must lie with the Parliament.
(C) The expression ‘co-ordination’ used in Entry 66 of Union List includes power to do all things in matters of Higher Education including Technical Education. The power is absolute and unconditional and in the absence of valid compelling reasons, it must be given its full effect according to its plain and express intention.
(D) If the State Legislation is in conflict with the Central Legislation and any of its Legislation, including the subordinate Legislation made by the Centre to give effect to Entry 66, the State action would be void and inoperative.
(E) The co-ordination and determination of standards in institutions for Higher Education or Technical Education exclusively vests with the Parliament. The power to legislate in respect of all matters insofar it has direct bearing and impact on the legislative head of co-ordination and determination of standards in institutions of Higher Education and Technical Education must be deemed by Entry 66 of List I to be vested in the Union.
(F) The All India statutory body established under Central Legislation and entrusted with the duty of maintaining standards of higher education and technical education alone is competent to lay down the standards of education. The norms for admission have direct impact on the standards of education. Therefore, the norms for admission can only be laid down by or under the Union Legislation. If the norms of admission are laid down either by or under the State Legislation, insofar as they do not adversely affect the standards of
education or are not inconsistent with the norms of admission laid down by or under the Union legislation, the Slate is empowered to lay down qualifications in addition to those prescribed under Entry 66 of List I. Such a course of action is intended to permit higher standards for admission to higher educational courses.
(G) It would be incorrect to say the norms for admission have no connection with the standard of education or that the rules for admission are covered only by Entry 25 of List III. Norms for admission can have a direct impact on the standards of education and, therefore, only the Council can lay down the norms and guidelines for admission to Technical Institutions.
(H) The All India Council for Technical Education Act is a Central Legislation made under Entry 66 of List I and, therefore, in matters of Technical Education in Engineering Technology, Architecture, Town Planning, Management, Pharmacy and Applied arts and crafts etc., the AICTE is alone primarily concerned with coordinated and integrated development of technical education system at all levels in the country. It is only the AICTE that is primarily entrusted with the power to provide guidelines for admission of students and to regulate proper maintenance of norms and standards of Technical Education.
(I) The AICTE alone has power and
authority to lay down standards of Technical Education including the power to prescribe norms for admission, which have a direct impact on the standards of education.
(J) In matters of granting affiliation or recognising me institutes and also prescribing standards of admission, both at the Stage’, of entrance test or
during actual admission programme, State Government though has power to deal with the situation, any refusal by the State Government shall not be on matters or grounds which are already considered and covered by the Council and which are approved by the Council.
(K.) If vacancies are available for students, the applicants cannot be denied the same on the ground that they do not fulfil the standards/requirements laid down by or under the State Act.
(L) It will not be open for the body created under the State Act or an authority of the State to exercise power, which results in deviation of the terms and conditions laid down, by the Council under the AICTE Act.
50. I have referred to the various decisions of the Supreme Court arising under various enactments made by the Parliament in exercise of the power under Entry 66 of List I. All the decisions would show that prescribing structure of the course, syllabus of the course, admission rules, prescribing the strength of the College, qualifications of the teaching staff, standard of infrastructure, rules of reservations, the minimum basic qualifications for admission etc., are all matters which are exclusively entrusted to a Central statutory body under the Central enactment. It was also held that the State Government or even the Courts are not competent to increase or decrease the seats in institutions of Higher Education or Technical Institutions when once the Legislation made by the Parliament under Entry 66 of List I fixes the number of seats. It is also useful to reiterate that as held by the Constitution Bench of the Supreme Court in Gujarat University case (supra), the power to legislate in respect of all matters in so far it has direct impact on the legislative head and in co-ordination and determination of standards in institutions of higher education
and technical institutions must be deemed by Entry 66 of List I to be vested in the Union. That is the test, which has to be applied while examining the legislative action or administrative action of the State regarding Technical Education. Point No. 1 is decided accordingly.
In re point No.2 :
51. I have already held that the authority and power to direct a private engineering college to start a new course or to take additional intake absolutely vests in the AICTE. The State Government has no such power. The question, therefore, is whether for any other reasons the impugned G.O. insofar as it directs the petitioners 1 to 4 to start a new course or take additional intake only from the academic year 2000-2001 is sustainable.
52. The learned Government Pleader has produced the relevant file from the office of the second respondent as well as the first respondent (Government file) dealing with the subject of dispute before me. Some of the admitted events and facts as noticed from a perusal of these two files require to be mentioned here.
53. By a letter F.No.711-1-2/ET/98 dated 7-8-1998, the Advisory to AICTE communicated to the first respondent the new schedule for processing of proposals for starting new technical institutions or new course or programmes. While enclosing the guidelines for processing of applications during the session 1999-2000, the Council prescribed 15-11-1998 as deadline to enable them to process the proposals and convey the approval or otherwise to the applications as per the time schedule. As per the guidelines, applications are called for establishment of new institutions, introduction of new course and variation in intake in existing courses by the existing institutions. As per the stipulations, the educational agencies sponsoring the
engineering college have to apply in the prescribed form to the AICTE. The applications are forwarded to the State Government. The State Government and the affiliating University then examines the proposals concurrently for issue of No Objection Certificate (NOC). While issuing the NOC, the State Government is required to indicate clearly whether the NOC is issued for starting a new institution or for variation in intake or for sanctioning additional capacity in the existing institutions.
54. Large number of applications received by them was forwarded by the Council to the Government of Andhra Pradesh. They were in turn sent to the 2nd respondent. The 2nd respondent who is the Head of Department of Technical Education in the State of Andhra Pradesh placed before Slate level Committee comprised of (a) the Vice-Chancellor of JNTU, (b) Professor and Head of the Mechanical Engineering Department, Osmania University, (c) Joint Director (Administration) of Technical Education, and (d) Secretary, State Board of Technical Education and Training. In the meanwhile, the State Government issued G.O. Rt. No.1419 dated 12-11-1998. The said G.O. contains the policy of the State Government to the effect that only those engineering colleges which are in uncovered revenue divisions with permanent location within five kilometers from the periphery of revenue division headquarters will be permitted and that only one proposal which satisfies the policy of the State Government will be recommended to the AICTE in one uncovered revenue division.
55. Having regard to the policy of the State Government to permit new institutions in uncovered revenue divisions, the State Level Committee examined 44 applications for establishment of new engineering colleges, which were forwarded to the first respondent vide Council’s letter dated 21-10-1998 and 27-10-1998. Expert officers and Professors from Universities inspected
the applicant institutions only in uncovered revenue divisions. The State Level Committee evaluated the proposals based on the criteria/yard slicks/norms like requirement of land of Ac.25.00 as per AICTE norms, corpus fund of Rs.50 lakhs or above as evidenced by Fixed Deposit Receipts, track record and background of the institution in running educational institutions and permanent location of the proposed college within 5 KMs., from the town limits. The State Level Committee recommended 13 applicants and in some other cases requested the Government to take a decision regarding grant of NOC. The State Level Committee also evaluated 61 applications for additional intake/ additional course in the existing engineering colleges and recommended the applications. The 2nd respondent by letter No.E.2/27522/98 dated 11-11-1998 (pp.69-75) communicated the recommendations of the State Level Committee. In paragraph 10 of the letter, the 2nd respondent categorically stated that 61 applications for additional intake/ additional course in the existing colleges may be recommended to AICTE in order to “improve the viability of these institutions.”
56. The communication from the AICTE dated 7-8-1998, G.O. Rt. No.1419 dated 12-11-1998 and the letter of the 2nd respondent addressed to the first respondent dated 11-11-1998 deal wish proposals as well as recommendations for starting new engineering colleges/additional intake/new courses or programmes for the academic year 1999-2000.
57. The first respondent by letter dated 2-12-1998 addressed to the Chairman, AICTE, recommended 12 new engineering colleges for grant of approval for the academic year 1999-2000. The first respondent also recommended 61 existing engineering colleges for grant of approval for starting additional intake/additional course for the academic year 1999-2000.
58. As per the guidelines communicated to the State Government by the AICTE vide its letter dated 7-8-1998, an expert committee of the Council will visit the institution for verifying the physical facilities to enable them to give approval or otherwise or starting a new institution during the academic year 1999-2000. Accordingly, the Council constituted expert committees. The expert committee(s) after physically verifying the infrastructural facilities provided by the applicant institutions submitted reports in respect of each individual educational agency. After considering these reports and also in consultation with the concerned agencies, the AICTE by letter No.730-5-276(E)/ET/99 dated 2-7-1999 accorded approval to the petitioners 1 to 4 for additional course/(s) and intake capacity as mentioned in the letter. The approval accorded by the Council is subject to fulfillment of norms and standards of the Council. The letter further says that the admission will be made in accordance with the Regulations notified by the Council vide GSR. No.476(E) dated 20-5-1994 based on the judgment of the Hon’ble Supreme Court in Unnikrishian’s case (supra). Further, no Management/ Institute/Society shall be entitled to announce admissions directly and the admission programme. While marking a copy of the letter of approval, the Registrar of Jawaharlal Technological University (JNTU), Hyderabad was requested to complete the process of affiliation for facilitating the admissions in the course(s) and intake approved by the Council which could only mean completion of admissions for the academic year 1999-2000. Even in the subject entry of the letter, the Council refers to academic year 1999-2000.
59. Be that as it may, the apex body again addressed a letter to the first respondent on 10-8-1999 in continuation of the letter of approval dated 2-7-1999 enclosing the specific conditions subject to which the approval is accorded. The Council
addressed another letter of even number dated 4-11-1999 (the letter in respect of the first petitioner is dated 12-11-1999). This letter is a corrigendum to the letter of approval dated 2-7-1999 and by this letter, the modification in course and intake approved by the Council for the academic session 1999-2000 in respect of each of the petitioner was given. In the case of petitioner 2 to 4, the Council approved the new course in Information Technology with an annual intake of 40 seats from 1999-2000. In the case of the first petitioner, the Council approved additional intake capacity of 20 seats each in three branches of BE Course viz., Computer Science and Engineering, Electrical and Electronics Engineering, Electronics and Communication Engineering. Letters of Corrigendum as well as letter communicating specific conditions clearly say that all other conditions mentioned in the letter dated 2-7-1999 remain unchanged.
60. Therefore, all the relevant orders and correspondence from 7-8-1998 to November, 1999 show that the whole exercise undertaken by the apex body is regarding admission to additional intake capacity/additional course for the academic year 1999-2000.
61. It is relevant in this connection to mention that the Council sent similar Corrigendum letters enhancing additional intake or approving new course on 22-10-1999 and 25-10-1999 in respect of other institutions viz., Sri Nidhi Institute of Science and Technology, Hyderabad, Syed Hashim College of Science and Technology, Siddipet, Medak, Narayana Engineering College, Ncllore and Noor College of Engineering and Technology, Mahabubnagar. The 2nd respondent by letter dated 29-10-1999 requested the first respondent to issue necessary orders duly revising annual intake as sanctioned by the AICTE in respect of the institutions mentioned hereinabove. The Government issued G.O. Rt. No.1157 dated 15-11-1999 permitting the above four
engineering colleges and other two colleges for starting additional course/(s) modification in the course intake for the academic year 1999-2000. It is interesting to note that in respect of four engineering colleges covered by G.O. Rt. No.1157 dated 15-11-1999, the AICTE had, in fact, actually approved the new course/additional intake by letter dated 2-7-1999, which also is the case in regard to the petitioners 1 to 4 herein.
62. After receiving the letters of Corrigendum dated 4-11-1999 and 12-11-1999, with regard to petitioners 2 to 4, the 2nd respondent addressed a letter dated 6-11-1999 informing the first respondent that the Council has accorded approval duly revising the earlier letters of the petitioners’ colleges. However, he requested the Government to accord approval for enhancement of intake only from the academic year 2000-2001 for the reason that it is not possible to include additional seats in EAMCET-99 as II phase of Counselling has already started and it is coming to an end by 18-12-1999. Accepting the proposals of the 2nd respondent, the first respondent issued the impugned G.O. after five weeks, whereas in the case of the other four institutions hereinabove mentioned, the Government issued G.O. Rt. No.1157 within a period of about two weeks. Be that as it may the fact of the matter is that the Government, by the impugned G.O., permitted the petitioners 1 to 4 for enhancement of intake capacity/additional course only from the academic year 2000-2001.
63. The question, therefore, is when the Council has accorded approval for the petitioner for enhancement of intake/starting a new, course from the academic year 1999-2000, is it permissible for the respondents to permit the institutions for enhancement of intake/starting a new course from the academic year 2000-2001? If the answer to this question is in the negative, can the reasons given by the respondent Nos. 1 and 2 are reasonable and sustainable.
64. Interpreting the phrase ‘coordination and determination of standards’ contained in Entry 66 of List 1 and the phrase ‘subject to’ appearing in Entry 25 of List III, the Hon’ble Supreme Court as well as this Court have repeatedly held that norms of admission have direct impact on standards of education. I have already adverted to these aspects under point No.1 and summarised the principles that emerge from the decided cases. Prescribing medium of instruction, prescribing the strength of the college, facilities, prescribing minimum basic qualifications and marks in the qualifying examination etc., are all matters dealing with norms of admissions. When a particular course is to be started, when examinations are to be conducted how much academic attendance should be insisted upon are matters directly concerned with the standard of education. Having regard to all this, the Council has laid down elaborate procedural Regulations by way of guidelines in their communication dated 7-8-1998. The Council received applications. The State Level Committee appointed by the first respondent evaluated them. After receiving the recommendations, the Council got the institutions inspected by an expert committee by physical verification and then the Council has permitted the petitioners to raise the intake as well as to start a new course from the academic year 1999-2000. When such an elaborate procedure is followed by both the State Government as well as the Council with reference to the academic year 1999-2000 only, it is unreasonable for the State Government to reject the approval accorded by the Council on its own permitting the petitioners to liave enhancement of intake/ starting a new course from the academic year 2000-2001. Such a course of action is not only unconstitutional and impermissible and also unreasonable for various reasons discussed infra. The starting of a new course/ new college/enhancement of intake with reference to particular academic year is a norm, which has direct impact on the
standard of admission, and, therefore, the State Government has no say in such matters.
65. While sending the proposals by letter dated 11-11-1998, the second respondent recommended to the first respondent that the proposals of the petitioners 1 to 4 for additional course/ additional intake from the academic year 1999-2000 be accepted to improve the viability of the institutions. The viability of the institutions referred to by the 2nd respondent which is also accepted by the first respondent in their letter dated 2-12-1998 addressed to the Council is with reference to the viability from the academic year 1999-2000. if the additional course/intake is allowed from the academic year 2000-2001 instead of 1999-2000, in my considered opinion, the institutions may not be viable for various reasons and they will not be able to meet the recurring expenditure for the purpose of which alone petitioners 1 to 4 applied for starting additional course/additional intake. Therefore, the action of the respondents is unreasonable and irrational. There is no discernible principle in the entire decision making process.
66. The submission made by the learned senior Government Pleader, Mr. S. Satyanarayana Prasad, relying on the judgment of the Supreme Court in Unnikrishnan’s case (supra) and of this Court in Sambasiva Rao’s case (supra), which do not even remotely support the contention of the learned Government Pleader that the State Government on its own can change the’academic year in matters of Technical Education is liable to be rejected. No doubt, there are certain areas, which are still with in the purview of the State Government and that is the reason why the preliminary scrutiny of applications received directly by the Council is entrusted to the respondents. I have already found even while sending
their recommendation by their letter No.218910/EC.2/98 dated 2-12-1998, the first respondent made recommendation to permit the petitioners for additional intake/ starting a new course from the academic year 1999-2000. Therefore, the impugned G.O., in so far as it seeks to permit the petitioners I to 4 to lake additional intake/ starling additional course from the academic year 2000-2001 is unconstitutional and cannot be sustained. Point No.2 is, therefore, answered in the negative, in favour of the petitioners.
In re point No. 3:
67. While sending the proposals by letter dated 6-11-1999, the 2nd respondent requested that as the II phase of counselling is coming to an end by 18-12-1999, it is not possible to include the additional intake/additional course in EAMCET-99 counselling. This is the main reason, which weighed with the Government while issuing the impugned order. However, in the counter affidavit, the 2nd respondent soughl to justify his proposal also on the ground that if the new course/additional intake is permitted for the academic year 1999-2000, the same would result in chain reaction or ripple effect.
68. The learned senior Government Pleader very passionately projected a situation of chaos and calamity. It is his argument that if the additional seats in Information Technology now introduced as additional new course in the petitioners 2 to 4 colleges and additional intake in Computer Science and Engineering, Electrical and Electronics Engineering and Electronics and Communication Engineering now sanctioned are considered for EAMCET-99 counselling, the same would result in changing the allotment pattern of 24,413 seats including 2,270 seats in Information Technology made during the I and II phase of counselling for Engineering course.
69. Before examining acceptability of this submission, it is useful to notice the law as to how a Court of judicial review should view and appreciate the argument that interference by the Coint is likely to result in chaotic and calamitous situation. In Bradbury v. London Borough of Enfield, (1967) 3 All. ER 434, the Court of Appeal was concerned with proceedings for judicial review praying for an injunction restraining the Borough Council (local authority entrusted with secondary education) from ceasing to maintain the grammar, technical and secondary schools. In 1965 as a Government Policy, it was decided to adopt a comprehensive system of secondary education by introducing system of comprehensive schools. Accordingly a development plan was prepared in respect of the schools in the jurisdiction of London Borough of Enfield (the Council). In regard to eight of the schools no public notice was given as required under Education Act, 1944. Therefore, rate payers-Ruth Bradbury and others brought an action for an injunction restraining the Council from ceasing to maintain the schools under the development plan of starting comprehensive schools and also sought interlocutory injunction restraining the Council from implementing the proposals till they are approved by (he Secretary of the State as per the relevant provision in Education Act, 1944. The High Court of Judicature refused injunction though recorded a finding that the Council breached the provision of law. The plaintiffs’ appeal before the Court Appeal was allowed injuncting the Council from proceeding with the development plan of changing into comprehensive schools. Before the Court of Appeal, it was inter alia contended by the Council that injunction, if granted, would result in chaos as all arrangements have been made for the change over. Dealing with this point, Lord Denning M.R. held–
“I come to the last point. Ought an injunction to be granted against the
Council? It has been suggested by the chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and the public, I must say this: If a local authority docs not fulfil the requirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestions of “chaos “. The department of education and the Council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must he obeyed; but I do not think that chaos will result. The evidence convinces me that the “chaos” is much over-stated…..”
70. In B. Prabhakar Rao v. State of Andhra Pradesh, , the argument of ‘calamitous consequences’ and ‘administrative chaos’ was repelled by the Supreme Court. While quoting with approval, the judgment of Lord Denning M.R. in Bradbury’s case (supra), the apex Court observed as follows–
“…..It would be a great injustice to deny
justice to those who have suffered injustice most merely because it may cause inconvenience to the administration. We are governed by the Constitution and the constitutional rights have to be upheld. Surely the Constitution must take precedence over convenience and a Judge may not turn a bureaucrat. We do not mean to suggest that creation of a chaotic state of administration is not a circumstance to be taken into account. It may be possible that in a given set of circumstances, portentous administrative
complexity may itsetf justify a classification. But, there must he sufficient evidence of that – how the circumstances will lead to chaos……”
71. In view of the above dicta of the Supreme Court it is to be examined whether permitting the petitioners I to 4 to introduce new additional course and also make admissions for additional intake would result in administrative chaos/calamitous consequences. There is no material placed before the Court that such a situation would arise or that a large number of students were deprived of their seats in Information Technology. The submission of the learned senior Government Pleader that if counselling is held now and admissions are conducted, it would result in admitting low ranking students to Information Technology course.
72. While considering point No.1, I have summarised the rule position. A reading of Rule 7, especially sub-rules (6), (7) and (13) shows that a student who obtained a rank in the merit list does not automatically get a right for admission. The admission is subject to the rules; regulations and norms prescribed by the concerned University and the Government. Further, till the cut off date at various stages the competent authority has to make selections and allot candidates for admission following the principle of merit and rule of reservation. After such selections and allotment for free seats as well as payment seats, a wait list shall have to be prepared to enable the private Managements to admit students for the casual vacancies, residue vacancies and the new vacancies that may arise by admitting students only from the wait list which itself is prepared based on merit of the candidates obtained in the EAMCET. Therefore, the connotation of merit ranking in EAMCET at the stage of selections and allotment by the competent authority
(Convenor) during the counselling is not the same when the Management makes admissions after the cut off date for casual or drop out vacancies or in the case of a new course of additional intake seats. This is especially so in multi-discipline education course like BE/B.Tech. Needless to point out that depending on the job opportunities, the importance of a branch varies from time to time.
73. During a given period of time, a particular branch in Engineering course maybe much sought after and the same may not be the case during later years. This Court, can take judicial notice of the fact that during 1960s and 70s there was lot of demand for seats in BE Civil course and of late due to computerisation of the civilisation seats in BE in Information Technology and Computer Science and Engineering branch are being much sought after. Though the Act, Rules and the entire system of education treats all the courses and alt the branches equally, the reason for more demand is the feeling among the students that a course in Information Technology or Computer Science and Engineering would fetch a job immediately after education. This does not, however, mean that the individual aptitude and attitude has no role to play. There may be a brilliant high-ranking meritorious student who may not opt for Information Technology and Computer Science and Engineering courses. On his own volition, he may opt for any other course that is not much sought after.
74. In the State of Andhra Pradesh, the admission to educational institutions generally and admission to professional courses like Medicine and Engineering specially is a very complicated and complex process. The provisions of Article 371-D of the Constitution as well as the Presidential Order have contributed to the complexity of admission to educational courses. Therefore,
a highly meritorious candidate belonging to one local area, even if he wants admission to BE course with Information Technology and Computer Science and Engineering may not be able to get seat, because the local area in respect of which he is a local candidate may not be offering the course or though he can be considered for the 15% unreserved scats in a local area, he may not come up in the merit. Therefore, any passionate view that all meritorious EAMCET rank holders opt for Information Technology and Computer Science and Engineering Branch or that all the seats in the BE, Information Technology and Computer Science and Engineering course will be filled up only by meritorious candidates would be nebulous and irrational. The learned GP has produced the statements showing the list of last ranking candidates admitted in the three local areas of the State for various branches. The condensed statement showing the last rank in BE./ B.Tech, course among OC candidates for both boys and giris is as follows:
Computer Science & Engineering
Electronics & Communication Engineering
75. I have carefully considered the statements produced by the learned Government Pleader Among the SC, ST and BC candidates for those two branches, the last ranking candidate is above 21000 and in fact in Osmania University area the ST candidate with the rank 92762 was
admitted to Information Technology course. Similar is the case in other local areas. Therefore, it can safely be concluded that it is not always correct to presume that for the branches Information Technology and Computer Science and Engineering, only high ranking meritorious candidates would opt and will be admitted. Indeed, the Rules are categorical that mere appearance at the Entrance Test and obtaining rank in the merit list does not entitle the candidate to be considered for admission automatically in any course/branch/institution -unless he/ she satisfies the rules and regulations of admission.
76. I have already extracted the statistics furnished by the learned Government Pleader to show that very low ranking students were admitted to Information Technology course and that there is no hard and fast rule that high-ranking meritorious students always get admitted to Information Technology course. Even otherwise as per Rule 7(13), after completion of admission to free seats as well as payment seats, the competent authority shall have to prepare a wait list of the candidates based on EAMCET-99 and publish the same along with the marks obtained in EAMCET-99. Such a wait list alone shall be the basis for the competent authority to fill up casual vacancies or drop out vacancies after selection for payment seats. After the cut off date as per Rule 7(13), the Managements shall have to follow the rule of reservation and merit and have to admit after publishing a Notification in the newspapers. The 2nd respondent in paragraph 5 of the counter-affidavit, in fact, admits this position. Even if the petitioners 1 to 4 are permitted to admit students to new course/ additional intake capacity for the academic year 1999-2000, the petitioners 1 to 4 have to necessarily follow the wait list prepared by the competent authority in accordance with Rule 7(13) of the Rules. Therefore, the submission of the learned senior
Government Pleader for Higher Education is liable to be rejected.
77. The other aspect of the matter is whether the respondents are justified in seeking to compel the petitioners 1 to 4 to admit students only from the academic year 2000-200! on the ground that II phase of counselling (EAMCET-99) is coming to an end by 18-12-1999? To put it in other words, is there any statutory prohibition for the respondents or for any college to admit students after completion of I phase of counselling and II phase of counselling? The rules do not prohibit the competent authority or the private Managements from admitting students even after completion of counselling.
78. For various reasons, in State of Andhra Pradesh the procedure for admission to professional courses and indeed some important other courses is complex. When it is said that counselling is being conducted, it does not mean that counselling will be over on one day or that the allotment of seats made on a particular day during the particular phase of counselling is final.
79. After publication of results in EAMCET-99, a Notification was published on 17-7-1999 proposing to start counselling on 28-7-1999 which started in the right earnest. The 1 phase of counselling went on till 12-8-1999. After conclusion of I phase of counselling, the Convenor, EAMCET-99, issued another Notification 22-10-1999. It is useful to excerpt a part of the Notification to show the reason behind the ‘EAMCET-99 Admission Notification -Phase II’ dated 22-10-1999 published in the Newspaper:
“After conclusion of Phase I admissions certain scats are left unfilled. In addition, some new engineering colleges, new courses like CSE, Information Technology and enhanced intakes in certain courses
in the existing colleges are going lo be sanctioned Hence all the eligible and qualified candidates in EAMCET-99 (Engineering stream) and Architecture candidates qualified in Aptitude test including those who have already taken admission in Phase 1 are informed to attend the counselling as per the programme schedule notified below at Sanketika Vidya Bhavan, Masabtank, Hyderabad. Candidates who have already taken admission should bring Provincial Allotment Order, Fee receipt and Receipt of certificates for Counselling…..”
80. The II phase of counselling commenced on 28-10-1999 and went on beyond 18-12-1999. The information given by the 2nd respondent that the II phase of counselling is likely to be completed on 18-12-1999 and the contention of the learned Government Pleader for Higher Education that the II phase of counselling is likely to be completed by 20-12-1999 is not correct. On the contrary, after the Notification for II phase of counselling dated 22-10-1999, the Convenor, EAMCET-99 issued the following further Notifications in continuation of Phase II notification.
Date of Notification
Description of Notification
EAMCET-99 Admissions Phase II Notification – Continuation.
EAMCET-99 Admissions- Phase II Notification – Continuation – 2.
EAMCET-99 Admissions -Phase II Notification – Continuation – 3.
EAMCET-99 Admissions -Phass II Notification – Continuation – 4.
81. By the Continuation Notifications I, 2 and 4, applications were invited for admission to Engineering course, as “some seats are still vacant”. By continuation Notification No.3, applications from boys of
SC category were invited. These Notifications belie the contention of the respondents. Therefore, it is to be held that II phase of counselling went beyond 18-12-1999. This is further supported by another Notification dated 23-12-1999 issued by the State Council. This Notification states that after completion of admissions till 20-12-1999 (cut off date) announced by the competent authority i.e., the A.P. State Council of Higher Education, still there are unfilled seals in some engineering colleges and, therefore, spot admissions are to be conducted for the remaining left over seats, drop out seats and cancelled vacancies on 30-12-1999. As per this Notification, the latest position, duly updated based on the information received from the colleges for spot admission, will be informed either on 28-12-1999 or 29-12-1999. By another Notification dated 28-12-1999, the State Council, invited applications for regional spot admissions informing that in addition to the candidates mentioned in the earlier notification dated 23-12-1999 candidates belonging to special categories who have taken admission earlier under open or reserved category, can also attend the spot admissions are left over seats under the respective categories as these seats were not offered to them as per their merit in the second phase of counselling and the consequential vacancies if any will be offered in the spot admissions. The submission of the learned Government Pleader that this Notification dated 28-12-1999 issued by the State Council is for admission of candidates who have appeared for ECET (FDH)-99 only is not correct.
82. Therefore, even factually, the contention of the respondents that the II phase of counselling is likely to come to an end by 18-12-1999 and, therefore, the petitioner-colleges cannot be allowed to admit students for the academic year 1999-2000 is liable to be rejected. The Notification dated 22-10-1999 clearly states
that counselling is being conducted for new course in CSB and Information Technology as well as “enhanced seats which are going to be sanctioned”. This suggests that the Government was aware of its recommendation sent to the AICTE by letter dated 2-12-1998 recommending the petitioner-colleges and others for approval by the Counsel for the academic year 1999-2000.
83. In view of this, I hold that the submission of ‘administrative chaos’ (chaos in Engineering admissions) is over-stated and in the facts and circumstances of this case, continuing the admission programme for the academic year 1999-2000 as per rules does not result in any administrative chaos.
84. I have also perused the note file leading to the issuance of the impugned GO dated 15-12-1999. The same was issued only on the request made by the 2nd respondent without considering all the aspects including the various Notifications issued by the Convenor, EAMCET-99. The question whether such a GO can be issued changing the academic year was not even adverted to while passing the impugned order. Therefore, on point No.3, it is held that permitting the petitioner-Colleges to start new course/admission to additional intake capacity from the academic year 1999-2000 in accordance with EAMCET Rules does not result in undoing the admissions already made to the engineering colleges in the State. The point is accordingly answered.
In re point No.4:
85. For the above reasons, the writ petition is allowed with costs quantified at Rs.5000/- (Rupees five thousand only) to be paid by the 2nd respondent to petitioners 1 to 4 herein. The impugned order insofar as the same accords permission to the existing engineering colleges (petitioners 1 to 4 herein) for conducting additional course/
additional intake contrary to the orders of the Council dated 2-7-1999 as modified by orders dated 4-11-1999/12-1 j-1999 from the academic year 2000-2001 is declared unconstitutional, illegal and violative of Article 14 of the Constitution. The respondents shall allow the petitioners 1 to 4 to admit the students who obtained rank in EAMCET-99 to the additional course/ additional intake seats in accordance with A.P. Professional Educational Institutions (Regulation of Admission into undergraduate Professional Courses through Common Entrance Test) Rules 1993, especially in accordance with Rule 7 of those Rules.