Jaya Gokul Educational Trust Vs. The Commissioner & Secretary to Government Higher Education Department,
EmailAppeal: Civil Appeal No. 2589 of 2000
(Arising out of S.L.P. (Civil) No.13540/98)
(From the Judgment and Order dated 3.3.98 of the Kerala High Court in W.A. No. 1024 of 1997)
(Arising out of S.L.P. (Civil) No.13540/98)
(From the Judgment and Order dated 3.3.98 of the Kerala High Court in W.A. No. 1024 of 1997)
Petitioner: Jaya Gokul Educational Trust
Respondent: The Commissioner & Secretary to Government Higher Education Department, Thiruvanathapuram, Kerala State & Anr.
Apeal: Civil Appeal No. 2589 of 2000
(Arising out of S.L.P. (Civil) No.13540/98)
(From the Judgment and Order dated 3.3.98 of the Kerala High Court in W.A. No. 1024 of 1997)
(Arising out of S.L.P. (Civil) No.13540/98)
(From the Judgment and Order dated 3.3.98 of the Kerala High Court in W.A. No. 1024 of 1997)
Judges: M. JAGANNADHA RAO & M.B. SHAH, JJ.
Date of Judgment: Nov 04, 2000
Appearances:
Mr. Mukul Rohtagi, Additional Solicitor General, Mr. T.L. Viswanatha Iyer, Senior Advocate, Ms. Lily Isable Thomas, Mr. G.Prakash, Mr. A.Ranganadhan, Mr. A.V. Rangam, Advocate with them for the appearing parties.
Head Note:
EDUCATION
All India Council for Technical Education Act, 1987
Sections 10 (1) (k), 23(1) with Constitution – Article 226 – Schedule VII, List I, Entry 66 – Establishment of Engineering College – Application submitted to University of Kerala and AICTE – Inspection carried out and recommendation made – AICTE granting conditional approval – Under impression that State Govt. was to grant permission, application moved on 24.06.95 for permission to start college – Meanwhile M.G. University also forwarding a list of colleges and courses for affiliation, which included this proposed college also – Govt. ul-timately refused permission – If the Act of 1987 occupied the field and it was unnecessary to obtain further approval of State Govt. and any other statute in State, requiring such approval would be void – Orders of rejection – Validity – If affiliation could be continued on basis of AICTE permission – “Approval” for starting college – Ratio in State of Tamil Nadu v. Adhiyaman Educational and Research Institute. Held that the ratio in case of State of Tamil Nadu has considered the provisions of Section 10 (1) (k) and accordingly University could not have sought ” approval” of the State Govt. as the Act of 1987 occupied the field. State law, if any, would be repugnant to the extent of inconsistency. Hence, the decision of University in not granting further or final affiliation was wrong.
Held:
The provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Insti-tute. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”. After the Constitutional Amendment ( 42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List read: “Education, included technical education, medical institution and Universities, sub-ject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour”. Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency.(Paras 15,16)
This Court clearly held that because of Section 10 (K) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of ‘approval’ for establishment of technical institutions.(Para 17)
The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala. In the Tamil Nadu case, Section 10 (K) of the AICTE Act was re-ferred to and the power of ‘approval’ for establishing a techni-cal institution was considered. Even if there was a State law in the State of Kerala which required the appro-val of the State Government for establishing technical institu-tions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case.
(Paras 18, 19)
As held in the Tamil Nadu case, the Central Act of 1987 and in particular, Section 10 (K) occupied the field relating the ‘grant of approvals’ for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the ‘views’ of the State Government. That could not be characterised as requiring the “approval” of the State Government. The University could not, in any event have sought for ‘approval’ of the State Government. There was no statutory requirement for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act.
(Paras 22,23)
The AICTE had granted approval on 30.4.95. The AICTE had granted conditional approval and the conditions were specified in Annex-ure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 . The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated “that government regret their inability to comply with your request”. No reasons were assigned in the said letter. In view of the judg-ment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering Colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void.(Paras 24,25)
The so called ‘policy’ of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. The State could not have any “policy” outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permis-sion. The University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Government and should have acted on the basis of the per-mission granted by AICTE and other relevant factors in the Uni-versity Act or statutes, which are not inconsistent with the AICTE Act or its Regulations.
(Paras 27, 30)
Cases Reffered:
1. Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others (JT 1996 (2) SC 692).
2. State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1995 (3) SC 136)
3. Unnikrishnan v. State of Andhra Pradesh (JT 1993 (1) SC 474)
JUDGEMENT:
M. JAGANNADHA RAO, J.
1. Leave granted.
2. The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the ‘AICTE’). There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establishing an Engineering College. The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994, the AICTE was granting conditional approval for establishing an Engineering and Technical College. The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter. In the event of contravention of the conditions, guidelines, norms and regulations of the AICTE, the AICTE could withdraw the approval at any time. Under the impression that the State Govt. was to grant permission, the appellant requested the State Gov-ernment by letter dated 24.6.1995 for permission to start the college. Meanwhile, the Mahatma Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96. The appellant’s college was shown as one of the colleg-es among the affiliated colleges for the said period. The ap-pellant sent a reminder to the Government on 26.8.1995 for per-mission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows:
“in inviting your attention to the reference cited, I am to inform you that Government regret their inability to comply with your request.”
Thereafter the appellant filed writ petition O.P. No. 4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College.
3. The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition, quashed the above-said order of the government dated 16.8.1996 and directed the Mahatma Gandhi University to consider the appellant’s application for permanent affiliation without reference to the above letter of the Government and pass appropriate orders within 8 weeks from the date of the receipt of a copy of the judgment. The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval, permanent affiliation could not be granted. The Government was also direct-ed to reconsider its decision.
4. Against the said judgment of the learned Single Judge the Commissioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No. 1024 of 1997. The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition. The Division Bench, however, observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier applica-tion, for a future academic year. It is against the abovesaid judgment of the Division Bench that this appeal has been pre-ferred.
5. Learned senior counsel for the appellant Sri T.L.Vishwanatha Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and accord-ing to him after the coming into force of the AICTE Act, 1987, the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void. In so far as institutions imparting technical education were con-cerned, the University or the State Government had no independent role to play except to the extent provided in the above said enactment. In the present case, the AICTE had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. The AICTE had consulted the State of Kerala as well as the Mahatma Gandhi University. The University had granted conditional approval, as stated earlier. Therefore the AICTE constituted a Task Force and obtained its opinion and thereafter granted its approval on 13.1.1995 subject to various conditions. According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the col-lege. It might be that under the relevant statutes of the Uni-versity, the University was required to obtain the “views” of the State Government but that did not amount to requiring any appro-val of the State Government and indeed if any such statute re-quired the approval of the State Government, it would be void in view of what was stated by this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1996 (3) SC 136 = 1995 (4) SCC 104).
6. Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the “policy” of the Government was not to grant approval to self-financing engineering colleges to be established, such a policy could not come in the way of the appellant in view of what this Court has stated in similar circumstances in Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others (JT 1996 (2) SC 692 = 1996 (3) SCC 15).
7. On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the “policy” of the State of Kerala at the relevant time was not to grant approvals for establishment of more engineering colleges in the State. The Government had clarified in the counter affidavit filed in the High Court that the Government “was not in a posi-tion” to take a decision to start new engineering colleges, without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportunities in the country as a whole. Also there were four Engineering Colleges at Kannur, Trichur, Kottayam and Thiruvanan-thapuram Districts and three Private (Aided) Engi-neering Colleges at Palakkad, Ernakulam (Kothamangalam) and Kollam Districts. The Model Engineering College, Ernakulam was a self- financing Engineering College and others were the colleges at Changannur and Pathan-samthitta and there was a self-financing Engineering College at Kasargode. There were also two unaided Engineering Colleges at Malla-ppuram and Thiruvananthapuram. Even though the appellant trust was not seeking aid from the Govern-ment and even assuming that it was financially self- sufficient, it would not be in the interests of the students & employment, to permit new engineering colleges to be established. Thus the Government policy was not to grant fresh approvals. If more approvals were granted, it might lead to commercialisation of education.
8. The following points arise for consideration: (1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1995 (3) SC 136 = 1995 (4) SCC 104), the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void?
(2) Whether the orders of rejection passed by the State Govern-ment were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission?
Point 1:
9. This point is more or less covered by the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1998 (3) SC 136 = 1995 (4) SCC 104). But, in the context of Section 10 (K) regarding ‘approval’ for starting a technical institution, certain aspects of the judgment need to be highlighted.
10. Before we refer to the abovesaid judgment, it will be neces-sary to refer to certain provisions of the AICTE Act and the relevant regulations.
11. The abovesaid Act was an Act to provide for the establish-ment of All India Council for Technical Education with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of quali-tative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. Under Section 10 of the Act, it is stated that it is the duty of the Council constituted under the Act to take all steps as the said Council might think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. For the purposes of performing its functions under the Act, the Council may (a) undertake survey in various fields of technical education, col-lect data on all related matters and make forecast of the needed growth and development in technical education; (b) coordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to- (i) technical institutions, and (ii) Universities imparting technical education in coordination with the Commission; (d) promote inno-vations, research and development in established and new technol-ogies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes; (e) formulate schemes for promoting tech-nical education for women, handicapped and weaker sections of the society; (f) promote an effective link between technical educa-tion system and other relevant systems including research and development organisations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability; (h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing educa-tion of teachers; (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and exami-nations; (j) fix norms and guidelines for charging tuition and other fees.
12. The clause in Section 10(1) which is important in the pres-ent case is sub-clause (k) of Section 10(1) and it provides that the Council might
“grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned.”
Sub-clause (l) permits the Council to advise the Central Govern-ment in certain respects, sub-clause (m) lay down norms for granting autonomy , sub-clause (n) to take necessary steps to prevent commercialisation of technical education, clause (o) to provide guidelines for admission of students to technical insti-tutions and Universities imparting technical education, clause (p) to inspect or cause inspection to any technical institution, clause (q) to withhold or discontinue grant, clause (r) to strengthen the existing organisations etc., clause (s) to declare technical institutions as fit to receive grants, clause (t) to advise for declaring institutions to be deemed as universities, clause (u) to set up a National Board of Accreditation. Section 11 of the Act deals with inspection.
13. Regulations have been framed on 31st October, 1994 by the AICTE in exercise of powers conferred on it by Section 23(1) of the AICTE Act. Regulations 2 states that these regulations will be applicable to proposals relating to
“(a) grant of approval of the Council for establishment of new technical institutions including Universities or University Departments and deemed Universities and for technical institu-tions functioning on the date of commencement of these regula-tions at Degree and Diploma levels;
(b) grant of approval of the Council for introduction of any course or programme in the Technical Institutions and Technical Departments or Universities or deemed Universities;
(c) grant of approval of the Council for existing intake capac-ity of seats and for increase in the annual intake capacity of seats in courses and programmes.”
Regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations
“(a)……………………
(b) no course or programme shall be introduced in any Technical Institutions, University or deemed University or University De-partments or College; or
(c) no Technical Institutions, or Universities or University De-partments shall continue to admit students for degree or diploma courses or programmes;
(d) no approved intake capacity of seats shall be increased or varied:
except with the approval of the Council.
Reg. 4(2)…………………….”
14. Regulation 5 deals with the Forms of the Applications and Regulation 6 deals with the conditions for grant of approval. Sub-clause 1 of Regulation 6 deals with the financial position. Sub-clause 2 with the courses or programmes and sub-clause 3 deals with the power of admissions and sub-clause 4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6 with the Governing Body of the private institutions and sub-clause 7 with other matters. Regulation 8 deals with scrutiny of applica-tions. There is to be preliminary scrutiny of the applications by the Bureau RC of the Council. Sub-clause 4 of Regulation 8 reads as follows:
“Reg. 8(4) The Bureau RC shall invite comments/recommendations on the applications referred to in sub- regulation (3) from the following, namely:-
(i) the State Government concerned;
(ii) the affiliating University/State Board of Technical Educa-tion;
(iii) Bureaus MPCD;
(iv) Bureau BOS;
(v) Bureau RA;
(vi) the Regional Office.”
Sub-clause 5 of Regulation 8 requires the Regional Office to arrange visits by an Expert Committee constituted by the Council which is to forward its recommendations to the Council. Sub-clause 6 of Regulation 8 states that the State Level Committee constituted under Regulation 9(4) is to consider the recommenda-tions of the State Government and others mentioned in Regulation 8(4) and that it is to make its recommendations to the Central Task Force constituted under Regulation 9(5) and consider the recommendations of the State Level Committee and send its recom-mendations to the Member Secretary of the Council. Sub-clauses 8 & 9 of Regulation 8 are important and read as fol-lows:
“Reg. 8(8) If there is a disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the re-spective agencies for further consultations before making final recommendation;
(9) On the recommendation of the Central Task Force, the Coun-cil shall decide the question of grant of approval as sought for in the application:
provided that the Council may, for reasons to be communicated to the applicant, allow the approval with such restrictions or modifications as it may deem necessary.”
Sub-clause 10 of Regulation 8 states that the decision of the Council shall be communicated to the State Government concerned or the UGC, as the case may be, the concerned University or the State Board, the Regional Office and the applicant before 30th April in case the application was made before the preceding 31st December.
The Tamil Nadu case:
15. As stated earlier, the above provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Institute (JT 1995 (3) SC 136 = 1995 (4) SCC 104).
16. In the above matter, the State of Tamil Nadu granted permis-sion on 17.4.84 to all private managements to start private Engineering Colleges without financial commitment to government but subject to conditions. At that time in 1984, the AICTE Act was not on the statute book. The Government of Tamil Nadu granted permission to the trust for the academic year 1987-88 to start an Engineering College. The University also granted permission on 21.11.87 for the academic year 1987-88. Later on, these permis-sions were withdrawn by the State after issuing show cause on 16.7.89. So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had come into force. The learned Single Judge and the Division Bench held in favour of the Trust and quashed the orders of the Government and the University. The said judgments were affirmed by this Court. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to “co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”. After the Constitutional Amendment ( 42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List reads: “Education, included technical education, medical institu-tion and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour”. Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. The Tamil Nadu Act was of 1976 and the University Act was of 1923 and were laws refer-able to the List III. Whether they were pre-constitutional or a post-constitutional laws, they would be repugnant to the AICTE Act passed by Parliament under Entry 66 of List I. In the above case this Court referred to the various provisions of the AICTE Act and on the question of repugnancy held ( see p. 120 SCC = p. 148 JT) as follows:
“Hence on the subjects covered by the statute, the State could not make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Arti-cle 372 of the Constitution, as the Madras University Act, 1923 on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution”.
17. We shall now refer to the relevant paras of the above judg-ment dealing with the question of ‘approval’ for establishing technical institutions under Section 10 (K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require “approval” by the State Government and that would be void. It was stated (see p. 124 SCC) that inasmuch as the State Act,
“will overlap and will be in conflict with the provisions of the Central Act in various areas ……, granting approval for start-ing new technical institution, ……, inspection of technical institution ……which are matters covered by the Central Act.”
This Court then referred to the Madras University Act, 1923. It was held ( see p. 126 SCC) that Section 10 of the Central Act dealt with various matters ( including granting approval for starting new technical institutions), and that so far as these matters were concerned,
“it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into force of the Central Act, the provisions of the University Act will be deemed to have become unenforceable”.
Thus, in the two passages set out above, this Court clearly held that because of Section 10 (K) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of ‘approval’ for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them.
Statutory powers of the State of Kerala and the M.G. University:
18. The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala.
19. Learned Additional Solicitor General stated before us that there was no statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 nor any other law which specifically required the ‘approval’ of the State Government. It was however contended that the Tamil Nadu case was concerned only with the standards of education and as to who could fix them. We are not inclined to agree. We have already pointed out under Point 1 that in the Tamil Nadu case, Section 10 (K) of the AICTE Act was re-ferred to and the power of ‘approval’ for establishing a techni-cal institution was considered. In our opinion, even if there was a State law in the State of Kerala which required the appro-val of the State Government for establishing technical institu-tions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case.
20. The only provision relied on before us by the State Govern-ment which according to its learned senior counsel, amounted to a statutory requirement of ‘approval’ of the State Government, was the one contained in clause 9(7) of the Kerala University First Statute. It reads as follows:
“(9) Grant of affiliation:
(1) ………………..
(3) ………………..
(7) After considering the report of the Commission and the report of the local inquiry, if any, and after making such further in-quiry as it may deem necessary, the Syndicate shall decide, after ascertaining the view of the Government also, whether the affil-iation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meeting:”.
It will be noticed that clause 9(7) of the statute required that before the University took a decision on “affiliation”, it had to ascertain the “views” of the State Government.
21. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause (9) of the statute required “verification of the facilities that may exist for starting the new colleges/course”. The Commission was to inspect the site, verify the title deeds as regards the proprietory right of the manage-ment over the land ( and buildings, if any) offered, building accommodation provided, if any, assets of the management, consti-tution of the registered body and all other relevant matters. Sub-clause (2) of clause (9) stated that the affiliation “shall depend upon the fulfilment by the management of all the condi-tions for the satisfactory establishment and maintenance of the proposed institution/courses of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose”.
22. As held in the Tamil Nadu case, the Central Act of 1987 and in particular, Section 10 (K) occupied the field relating the ‘grant of approvals’ for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the ‘views’ of the State Government. That could not be characterised as requiring the “approval” of the State Government. If, indeed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10 (K) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were suffi-cient safeguards for ascertaining the views of the State Govern-ments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsist-ent with the provisions of the Central Act. The University could not, therefore, in any event have sought for ‘approval’ of the State Government.
23. Thus we hold, in the present case that there was no statu-tory requirement for obtaining the approval of the State Govern-ment and even if there was one, it would have been repugnant to the AICTE Act. The University statute 9(7) merely required that the ‘views’ of the State Government be obtained before granting affiliation and this did not amount to obtaining ‘approval’. If the University statute required ‘approval’, it would have been repugnant to the AICTE Act. Point 1 is decided accordingly.
Point 2:
Factual position and pleadings in this case:
24. On facts, the position was that the AICTE had granted approval on 30.4.95 expressly stating that this was “on consider-ation of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee, Central Task Force as per the provisions of AICTE Regulations dated 31.10.94”. The AICTE had granted condi-tional approval and the conditions were specified in Annexure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 and based on the judgment of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh (JT 1993 (1) SC 474 = 1993 (1) SCC 645). The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7), the “views” of the government were to be sent before granting affiliation. The letter said that for that reason the proposals of the University were being submitted to the Government “for necessary action”. The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated “that government regret their inability to comply with your request”. No reasons were assigned in the said letter. But the State in its counter filed in the High Court tried to explain in para 3 that the Director of Technical Educa-tion had opined that during the year 1995-96, it might not be practicable to start the college for the Director could not ascertain the details of the facilities available. It was stated:
“he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education. The All India Council for Techni-cal Education and the Mahatma Gandhi University have sought for the remarks of the State Government.”
Para 4 of the Counter affidavit had further stated that the Government was not
” in a position to take a decision to start new Engineering College without properly assessing the necessity of more engi-neering graduates in the State and exploring the possibility of employment opportunity in the country to the extent possible”.
The State Government in its counter then gave the names of the existing colleges and their location. We have already referred to these details. It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new Engineering Colleges. It was stated that Government could not initially take a decision on the appellant’s affiliation because of elections and that the matter being one of ‘major policy’ the Government had subsequent-ly “taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year”. These are stated to be the reasons for the Government’s rejection by letter dated 16.8.96.
State Government’s refusal to grant permission is illegal and void on merits:
25. As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering Colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash the State Government’s letter dated 16.8.1996 refusing to give their approval.
26. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE’s approval dated 30.4.95 showed that the approval had been given by the State Level Committee of which they were obviously members. It is, therefore, not understandable how the Director had given a contrary opinion to the State Gov-ernment. Regulation 8(4) of AICTE only required calling for the “comments/recommendations” of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force was to make a final recommendation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc.
27. The so called ‘policy’ of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others (JT 1996 (2) 692 = 1996 (3) SCC 15), which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the “essentiality certificate cannot be withheld by the State Govern-ment on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone”. Therefore, the State could not have any “policy” outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission are required by the AICTE to be com-plied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action.
Decision of University in not granting further or final affilia-tion wrong on merits:
28. Admittedly, the University’s inspection report was in favour of the appellant. This is clear from the appellant’s letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the ‘views’ of the State Government. Obtaining the ‘views’ of the State Government, as already stated, did not amount to obtaining its ‘approval’. Procedure and conditions for affiliation could not be inconsist-ent with the provisions of the Central Act, in particular Sec-tion 10 (K) of the Regulation, and the University could not seek approval of Government. The University was also one of the agen-cies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univers-ity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action.
29. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE.
30. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Government and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations.
31. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in O.P. 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient. We do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge’s order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatma Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations.
32. The appeal is allowed and disposed of as stated above. There will be no order as to costs.
Diocese of Kanjirapally
v.
Commissioner-cum-Secretary, Higher Education & Others
Special Leave Petition (Civil) No. 10485 of 1998
ORDER
33. The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court.
34. We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No. 952 of 1998 and the same is pending. It will be for the petitioner to have the said matter disposed of by the High Court of Delhi. Therefore, this Special Leave Petition is dismissed as premature.
1. Leave granted.
2. The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the ‘AICTE’). There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establishing an Engineering College. The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994, the AICTE was granting conditional approval for establishing an Engineering and Technical College. The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter. In the event of contravention of the conditions, guidelines, norms and regulations of the AICTE, the AICTE could withdraw the approval at any time. Under the impression that the State Govt. was to grant permission, the appellant requested the State Gov-ernment by letter dated 24.6.1995 for permission to start the college. Meanwhile, the Mahatma Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96. The appellant’s college was shown as one of the colleg-es among the affiliated colleges for the said period. The ap-pellant sent a reminder to the Government on 26.8.1995 for per-mission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows:
“in inviting your attention to the reference cited, I am to inform you that Government regret their inability to comply with your request.”
Thereafter the appellant filed writ petition O.P. No. 4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College.
3. The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition, quashed the above-said order of the government dated 16.8.1996 and directed the Mahatma Gandhi University to consider the appellant’s application for permanent affiliation without reference to the above letter of the Government and pass appropriate orders within 8 weeks from the date of the receipt of a copy of the judgment. The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval, permanent affiliation could not be granted. The Government was also direct-ed to reconsider its decision.
4. Against the said judgment of the learned Single Judge the Commissioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No. 1024 of 1997. The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition. The Division Bench, however, observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier applica-tion, for a future academic year. It is against the abovesaid judgment of the Division Bench that this appeal has been pre-ferred.
5. Learned senior counsel for the appellant Sri T.L.Vishwanatha Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and accord-ing to him after the coming into force of the AICTE Act, 1987, the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void. In so far as institutions imparting technical education were con-cerned, the University or the State Government had no independent role to play except to the extent provided in the above said enactment. In the present case, the AICTE had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. The AICTE had consulted the State of Kerala as well as the Mahatma Gandhi University. The University had granted conditional approval, as stated earlier. Therefore the AICTE constituted a Task Force and obtained its opinion and thereafter granted its approval on 13.1.1995 subject to various conditions. According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the col-lege. It might be that under the relevant statutes of the Uni-versity, the University was required to obtain the “views” of the State Government but that did not amount to requiring any appro-val of the State Government and indeed if any such statute re-quired the approval of the State Government, it would be void in view of what was stated by this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1996 (3) SC 136 = 1995 (4) SCC 104).
6. Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the “policy” of the Government was not to grant approval to self-financing engineering colleges to be established, such a policy could not come in the way of the appellant in view of what this Court has stated in similar circumstances in Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others (JT 1996 (2) SC 692 = 1996 (3) SCC 15).
7. On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the “policy” of the State of Kerala at the relevant time was not to grant approvals for establishment of more engineering colleges in the State. The Government had clarified in the counter affidavit filed in the High Court that the Government “was not in a posi-tion” to take a decision to start new engineering colleges, without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportunities in the country as a whole. Also there were four Engineering Colleges at Kannur, Trichur, Kottayam and Thiruvanan-thapuram Districts and three Private (Aided) Engi-neering Colleges at Palakkad, Ernakulam (Kothamangalam) and Kollam Districts. The Model Engineering College, Ernakulam was a self- financing Engineering College and others were the colleges at Changannur and Pathan-samthitta and there was a self-financing Engineering College at Kasargode. There were also two unaided Engineering Colleges at Malla-ppuram and Thiruvananthapuram. Even though the appellant trust was not seeking aid from the Govern-ment and even assuming that it was financially self- sufficient, it would not be in the interests of the students & employment, to permit new engineering colleges to be established. Thus the Government policy was not to grant fresh approvals. If more approvals were granted, it might lead to commercialisation of education.
8. The following points arise for consideration: (1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1995 (3) SC 136 = 1995 (4) SCC 104), the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void?
(2) Whether the orders of rejection passed by the State Govern-ment were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission?
Point 1:
9. This point is more or less covered by the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others (JT 1998 (3) SC 136 = 1995 (4) SCC 104). But, in the context of Section 10 (K) regarding ‘approval’ for starting a technical institution, certain aspects of the judgment need to be highlighted.
10. Before we refer to the abovesaid judgment, it will be neces-sary to refer to certain provisions of the AICTE Act and the relevant regulations.
11. The abovesaid Act was an Act to provide for the establish-ment of All India Council for Technical Education with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of quali-tative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. Under Section 10 of the Act, it is stated that it is the duty of the Council constituted under the Act to take all steps as the said Council might think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. For the purposes of performing its functions under the Act, the Council may (a) undertake survey in various fields of technical education, col-lect data on all related matters and make forecast of the needed growth and development in technical education; (b) coordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to- (i) technical institutions, and (ii) Universities imparting technical education in coordination with the Commission; (d) promote inno-vations, research and development in established and new technol-ogies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes; (e) formulate schemes for promoting tech-nical education for women, handicapped and weaker sections of the society; (f) promote an effective link between technical educa-tion system and other relevant systems including research and development organisations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability; (h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing educa-tion of teachers; (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and exami-nations; (j) fix norms and guidelines for charging tuition and other fees.
12. The clause in Section 10(1) which is important in the pres-ent case is sub-clause (k) of Section 10(1) and it provides that the Council might
“grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned.”
Sub-clause (l) permits the Council to advise the Central Govern-ment in certain respects, sub-clause (m) lay down norms for granting autonomy , sub-clause (n) to take necessary steps to prevent commercialisation of technical education, clause (o) to provide guidelines for admission of students to technical insti-tutions and Universities imparting technical education, clause (p) to inspect or cause inspection to any technical institution, clause (q) to withhold or discontinue grant, clause (r) to strengthen the existing organisations etc., clause (s) to declare technical institutions as fit to receive grants, clause (t) to advise for declaring institutions to be deemed as universities, clause (u) to set up a National Board of Accreditation. Section 11 of the Act deals with inspection.
13. Regulations have been framed on 31st October, 1994 by the AICTE in exercise of powers conferred on it by Section 23(1) of the AICTE Act. Regulations 2 states that these regulations will be applicable to proposals relating to
“(a) grant of approval of the Council for establishment of new technical institutions including Universities or University Departments and deemed Universities and for technical institu-tions functioning on the date of commencement of these regula-tions at Degree and Diploma levels;
(b) grant of approval of the Council for introduction of any course or programme in the Technical Institutions and Technical Departments or Universities or deemed Universities;
(c) grant of approval of the Council for existing intake capac-ity of seats and for increase in the annual intake capacity of seats in courses and programmes.”
Regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations
“(a)……………………
(b) no course or programme shall be introduced in any Technical Institutions, University or deemed University or University De-partments or College; or
(c) no Technical Institutions, or Universities or University De-partments shall continue to admit students for degree or diploma courses or programmes;
(d) no approved intake capacity of seats shall be increased or varied:
except with the approval of the Council.
Reg. 4(2)…………………….”
14. Regulation 5 deals with the Forms of the Applications and Regulation 6 deals with the conditions for grant of approval. Sub-clause 1 of Regulation 6 deals with the financial position. Sub-clause 2 with the courses or programmes and sub-clause 3 deals with the power of admissions and sub-clause 4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6 with the Governing Body of the private institutions and sub-clause 7 with other matters. Regulation 8 deals with scrutiny of applica-tions. There is to be preliminary scrutiny of the applications by the Bureau RC of the Council. Sub-clause 4 of Regulation 8 reads as follows:
“Reg. 8(4) The Bureau RC shall invite comments/recommendations on the applications referred to in sub- regulation (3) from the following, namely:-
(i) the State Government concerned;
(ii) the affiliating University/State Board of Technical Educa-tion;
(iii) Bureaus MPCD;
(iv) Bureau BOS;
(v) Bureau RA;
(vi) the Regional Office.”
Sub-clause 5 of Regulation 8 requires the Regional Office to arrange visits by an Expert Committee constituted by the Council which is to forward its recommendations to the Council. Sub-clause 6 of Regulation 8 states that the State Level Committee constituted under Regulation 9(4) is to consider the recommenda-tions of the State Government and others mentioned in Regulation 8(4) and that it is to make its recommendations to the Central Task Force constituted under Regulation 9(5) and consider the recommendations of the State Level Committee and send its recom-mendations to the Member Secretary of the Council. Sub-clauses 8 & 9 of Regulation 8 are important and read as fol-lows:
“Reg. 8(8) If there is a disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the re-spective agencies for further consultations before making final recommendation;
(9) On the recommendation of the Central Task Force, the Coun-cil shall decide the question of grant of approval as sought for in the application:
provided that the Council may, for reasons to be communicated to the applicant, allow the approval with such restrictions or modifications as it may deem necessary.”
Sub-clause 10 of Regulation 8 states that the decision of the Council shall be communicated to the State Government concerned or the UGC, as the case may be, the concerned University or the State Board, the Regional Office and the applicant before 30th April in case the application was made before the preceding 31st December.
The Tamil Nadu case:
15. As stated earlier, the above provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Institute (JT 1995 (3) SC 136 = 1995 (4) SCC 104).
16. In the above matter, the State of Tamil Nadu granted permis-sion on 17.4.84 to all private managements to start private Engineering Colleges without financial commitment to government but subject to conditions. At that time in 1984, the AICTE Act was not on the statute book. The Government of Tamil Nadu granted permission to the trust for the academic year 1987-88 to start an Engineering College. The University also granted permission on 21.11.87 for the academic year 1987-88. Later on, these permis-sions were withdrawn by the State after issuing show cause on 16.7.89. So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had come into force. The learned Single Judge and the Division Bench held in favour of the Trust and quashed the orders of the Government and the University. The said judgments were affirmed by this Court. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to “co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”. After the Constitutional Amendment ( 42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List reads: “Education, included technical education, medical institu-tion and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour”. Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. The Tamil Nadu Act was of 1976 and the University Act was of 1923 and were laws refer-able to the List III. Whether they were pre-constitutional or a post-constitutional laws, they would be repugnant to the AICTE Act passed by Parliament under Entry 66 of List I. In the above case this Court referred to the various provisions of the AICTE Act and on the question of repugnancy held ( see p. 120 SCC = p. 148 JT) as follows:
“Hence on the subjects covered by the statute, the State could not make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Arti-cle 372 of the Constitution, as the Madras University Act, 1923 on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution”.
17. We shall now refer to the relevant paras of the above judg-ment dealing with the question of ‘approval’ for establishing technical institutions under Section 10 (K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require “approval” by the State Government and that would be void. It was stated (see p. 124 SCC) that inasmuch as the State Act,
“will overlap and will be in conflict with the provisions of the Central Act in various areas ……, granting approval for start-ing new technical institution, ……, inspection of technical institution ……which are matters covered by the Central Act.”
This Court then referred to the Madras University Act, 1923. It was held ( see p. 126 SCC) that Section 10 of the Central Act dealt with various matters ( including granting approval for starting new technical institutions), and that so far as these matters were concerned,
“it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into force of the Central Act, the provisions of the University Act will be deemed to have become unenforceable”.
Thus, in the two passages set out above, this Court clearly held that because of Section 10 (K) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of ‘approval’ for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them.
Statutory powers of the State of Kerala and the M.G. University:
18. The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala.
19. Learned Additional Solicitor General stated before us that there was no statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 nor any other law which specifically required the ‘approval’ of the State Government. It was however contended that the Tamil Nadu case was concerned only with the standards of education and as to who could fix them. We are not inclined to agree. We have already pointed out under Point 1 that in the Tamil Nadu case, Section 10 (K) of the AICTE Act was re-ferred to and the power of ‘approval’ for establishing a techni-cal institution was considered. In our opinion, even if there was a State law in the State of Kerala which required the appro-val of the State Government for establishing technical institu-tions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case.
20. The only provision relied on before us by the State Govern-ment which according to its learned senior counsel, amounted to a statutory requirement of ‘approval’ of the State Government, was the one contained in clause 9(7) of the Kerala University First Statute. It reads as follows:
“(9) Grant of affiliation:
(1) ………………..
(3) ………………..
(7) After considering the report of the Commission and the report of the local inquiry, if any, and after making such further in-quiry as it may deem necessary, the Syndicate shall decide, after ascertaining the view of the Government also, whether the affil-iation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meeting:”.
It will be noticed that clause 9(7) of the statute required that before the University took a decision on “affiliation”, it had to ascertain the “views” of the State Government.
21. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause (9) of the statute required “verification of the facilities that may exist for starting the new colleges/course”. The Commission was to inspect the site, verify the title deeds as regards the proprietory right of the manage-ment over the land ( and buildings, if any) offered, building accommodation provided, if any, assets of the management, consti-tution of the registered body and all other relevant matters. Sub-clause (2) of clause (9) stated that the affiliation “shall depend upon the fulfilment by the management of all the condi-tions for the satisfactory establishment and maintenance of the proposed institution/courses of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose”.
22. As held in the Tamil Nadu case, the Central Act of 1987 and in particular, Section 10 (K) occupied the field relating the ‘grant of approvals’ for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the ‘views’ of the State Government. That could not be characterised as requiring the “approval” of the State Government. If, indeed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10 (K) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were suffi-cient safeguards for ascertaining the views of the State Govern-ments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsist-ent with the provisions of the Central Act. The University could not, therefore, in any event have sought for ‘approval’ of the State Government.
23. Thus we hold, in the present case that there was no statu-tory requirement for obtaining the approval of the State Govern-ment and even if there was one, it would have been repugnant to the AICTE Act. The University statute 9(7) merely required that the ‘views’ of the State Government be obtained before granting affiliation and this did not amount to obtaining ‘approval’. If the University statute required ‘approval’, it would have been repugnant to the AICTE Act. Point 1 is decided accordingly.
Point 2:
Factual position and pleadings in this case:
24. On facts, the position was that the AICTE had granted approval on 30.4.95 expressly stating that this was “on consider-ation of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee, Central Task Force as per the provisions of AICTE Regulations dated 31.10.94”. The AICTE had granted condi-tional approval and the conditions were specified in Annexure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 and based on the judgment of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh (JT 1993 (1) SC 474 = 1993 (1) SCC 645). The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7), the “views” of the government were to be sent before granting affiliation. The letter said that for that reason the proposals of the University were being submitted to the Government “for necessary action”. The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated “that government regret their inability to comply with your request”. No reasons were assigned in the said letter. But the State in its counter filed in the High Court tried to explain in para 3 that the Director of Technical Educa-tion had opined that during the year 1995-96, it might not be practicable to start the college for the Director could not ascertain the details of the facilities available. It was stated:
“he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education. The All India Council for Techni-cal Education and the Mahatma Gandhi University have sought for the remarks of the State Government.”
Para 4 of the Counter affidavit had further stated that the Government was not
” in a position to take a decision to start new Engineering College without properly assessing the necessity of more engi-neering graduates in the State and exploring the possibility of employment opportunity in the country to the extent possible”.
The State Government in its counter then gave the names of the existing colleges and their location. We have already referred to these details. It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new Engineering Colleges. It was stated that Government could not initially take a decision on the appellant’s affiliation because of elections and that the matter being one of ‘major policy’ the Government had subsequent-ly “taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year”. These are stated to be the reasons for the Government’s rejection by letter dated 16.8.96.
State Government’s refusal to grant permission is illegal and void on merits:
25. As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering Colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash the State Government’s letter dated 16.8.1996 refusing to give their approval.
26. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE’s approval dated 30.4.95 showed that the approval had been given by the State Level Committee of which they were obviously members. It is, therefore, not understandable how the Director had given a contrary opinion to the State Gov-ernment. Regulation 8(4) of AICTE only required calling for the “comments/recommendations” of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force was to make a final recommendation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc.
27. The so called ‘policy’ of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others (JT 1996 (2) 692 = 1996 (3) SCC 15), which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the “essentiality certificate cannot be withheld by the State Govern-ment on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone”. Therefore, the State could not have any “policy” outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission are required by the AICTE to be com-plied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action.
Decision of University in not granting further or final affilia-tion wrong on merits:
28. Admittedly, the University’s inspection report was in favour of the appellant. This is clear from the appellant’s letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the ‘views’ of the State Government. Obtaining the ‘views’ of the State Government, as already stated, did not amount to obtaining its ‘approval’. Procedure and conditions for affiliation could not be inconsist-ent with the provisions of the Central Act, in particular Sec-tion 10 (K) of the Regulation, and the University could not seek approval of Government. The University was also one of the agen-cies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univers-ity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action.
29. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE.
30. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Government and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations.
31. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in O.P. 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient. We do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge’s order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatma Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations.
32. The appeal is allowed and disposed of as stated above. There will be no order as to costs.
Diocese of Kanjirapally
v.
Commissioner-cum-Secretary, Higher Education & Others
Special Leave Petition (Civil) No. 10485 of 1998
ORDER
33. The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court.
34. We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No. 952 of 1998 and the same is pending. It will be for the petitioner to have the said matter disposed of by the High Court of Delhi. Therefore, this Special Leave Petition is dismissed as premature.
