Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. of 2018
(@ SPECIAL LEAVE PETITION [C] NO.9718 OF 2018)
THE JAWAHARLAL NEHRU TECHNOLOGICAL
UNIVERSITY REGISTRAR … APPELLANT(S)
VERSUS
SANGAM LAXMI BAI VIDYAPEET & ORS. … RESPONDENTS
J U D G M E N T
ARUN MISHRA, J.
1. The question involved in the appeal is whether a University is
bound to give ‘No Objection Certificate' (NOC) for opening an
educational institution or for a new course irrespective of educational
needs of the locality under its jurisdiction. In other words, is the
University bound to give NOC in a local area irrespective of whether
institutions are required in the area and thereby promote the
mushroom growth of institutions?
2. Respondent no.1 – Sangam Laxmibai Vidyapeeth, is a registered
Signature Not Verified
Digitally signed by
NEELAM GULATI
society which has sponsored and manages Bojjam Narasimhulu
Date: 2018.10.30
15:55:06 IST
Reason:
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Pharmacy College for Women, being Respondent No.2, set up at
Hyderabad. On 27.7.2017, Respondent No.2 applied to the Jawaharlal
Nehru Technological University (for short, “the University”) for grant of
No Objection Certificate (NOC) to start the D.Pharma course in their
college during the academic year 20182019. On 19.8.2017, the
University declined NOC on the ground that as per the Government’s
policy and perspective plan, NOC was not to be granted for new
institutions and new courses.
3. Respondent No.2 on 26.8.2017 filed an application before the
Pharmacy Council of India (for short, ‘the PCI') for grant of approval for
starting D. Pharma course for the academic year 20182019. The PCI
insisted on the production of NOC certificate from the University.
4. Challenging the communication dated 19.8.2017 of the
University declining NOC and also challenging regulations 5.1, 5.2 and
6 of the Jawaharlal Nehru Affiliation Procedure and Regulations, 2017
(hereinafter referred to as “the 2017 Regulations”), the respondent filed
a writ petition before the High Court.
5. In its counter affidavit filed in the High Court, the University
contended that under the provisions of Section 20 of the Telangana
Education Act, 1982 (hereinafter referred to as “the Act of 1982”),
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obtaining of NOC as per the All India Council of Technical Education
Regulations (for short, ‘the AICTE Regulations’) and the 2017
Regulations, was necessary for starting new courses.
6. The validity of Section 20 of the erstwhile Andhra Pradesh
Education Act, which is in pari materia with Section 20 of the Act of
1982, has been upheld in Government of Andhra Pradesh v. J.B.
Educational Society , (2005) 3 SCC 212. The said Act stands adopted
in the State of Telangana.
7. The Government of Telangana also filed a counteraffidavit
pointing out that Government has taken a policy decision and
requested the AICTE by a letter dated 29.11.2016 to declare a holiday
on the establishment of new technical institutions for the academic
year 20172018 onwards. The policy decision was based upon the
detailed study of a large number of technical institutions running in
the State and in particular Hyderabad, wherein even the available
seats were lying vacant, and the addition of more seats and more
colleges was bound to adversely impact the quality of education and
would make them financially unviable. Ultimately, the fall in the
standards of education may result in the low employability of the
students. The Government had prepared a perspective plan for
technical education in the State and communicated the same to the
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AICTE. The Perspective Plan had been prepared in consonance with
the provisions contained in Section 20 of the Act of 1982.
8. The High Court by the impugned judgment and order had
allowed the writ application. It has observed that grant of NOC will
not enable an institution to start a course. They have several other
hurdles to be cleared for starting D. Pharma. The High Court has held
that Regulations 5.2, 5.3 and 6 of the 2017 Regulations are valid. The
vires of the regulations has been upheld. However, the High Court
held that policy decision taken by the Government not to allow new
courses to be started is not in terms of section 20 of the Act of 1982 as
the provision does not vest power upon the Government to declare a
holiday on the ground that a lot of seats are going vacant. The High
Court has observed that in case the seats are going vacant educational
institutions will automatically shut down courses for which there is no
demand. Unless starting of a course or running of an existing course
is economically viable, no educational agency would take up the
venture. That is the concern of the educational agency and not of the
Government or of the University. The High Court has further
observed that uneducated unemployed may find a course where their
energies can be channelized and it is better to have educated
unemployed rather than to have a breed of uneducated
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unemployed. The perspective plan prepared by the Government has
also been considered. It has been observed that seats remaining
vacant cannot be the sole criterion for refusal of NOC. The enrolment
of students in PharmaD has registered a marginal increase over the
years. The University has been directed to grant NOC. Thereafter, it
will be open to the AICTE and PCI to examine the application of the
petitioner for D. Pharma course and thereafter it will be open to the
University to examine with reference to its own Statutes as to whether
petitioner may be granted affiliation or not. Aggrieved by the same,
the appeal has been preferred.
9. It was submitted by the learned senior counsel appearing on
behalf of the appellantUniversity that there are thirty institutions
which are running pharmacy courses in the city of Hyderabad. The
number of institutions is more and it is not possible to cater to the
needs of all colleges as students are not enough. The seats remain
vacant in spite of the reduction in the number of seats. There is a
paucity of the teachers as well. The Government of Telangana after a
detailed study has prepared a perspective plan and has forwarded it to
the AICTE requesting it not to open new technical courses as there is a
mushroom growth of the institutions in the city of Hyderabad.
Considering the perspective plan, the decision has been taken not to
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grant NOC by the University in terms of the provisions contained in
section 20 of the Act of 1982 and the Regulations of the University.
The High Court has erred in law in interfering with the policy decision
of the State Government on legally impermissible grounds.
10. Per contra , learned senior counsel on behalf of the respondent
contended that it was not open to the Government to frame such a
policy of declaring a holiday. It is for the AICTE or the PCI to take into
consideration the requirements of the area whether institutions have
to be permitted to start a new course. Mainly by the fact that some
seats have remained vacant in the course of Pharmacy, the NOC could
not have been declined. As it was for the PCI as well as the AICTE to
take into consideration the various aspects after the issuance of the
NOC. Thus, University, as well as the State Government, have
exceeded their powers. The statistics submitted are not of D. Pharma
course but relates to the other courses of pharmacy. The imposition of
the moratorium for the academic year 20182019 is bad in law as it
would be open to the University, after approval is granted by the
AICTE and PCI, to examine whether the institution fulfills its
requirements for the purpose of grant of affiliation. In the perspective
plan, it is pointed out that there is need to start pharmacy course as
imbalance has been created by the establishment of other technical
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institutions such as engineering etc. which may not be good for the
country’s growth.
11. The pivotal point for consideration is whether the State
Government and the University have the power to frame a policy and
to refuse the grant of NOC to start a course in Pharmacy in the city of
Hyderabad and the decision of the State Government imposing the
moratorium for the year 201819 is without jurisdiction, irrational or
arbitrary.
12. Section 20 of the Act of 1982 deals with permission for the
establishment of educational institutions. Section 20(1) provides that a
competent authority shall conduct a survey as to identify the
educational needs of the locality under its jurisdiction. Section 20(3)
provides that any educational agency applying for permission under
section 20(2) shall before the permission is granted, satisfy the
authority concerned that there is a need for providing educational
facilities to the people in the locality. Section 20 is extracted
hereunder:
“ [20. Permission for establishment of educational institutions:
(1) The competent authority shall, from time to time, conduct a
survey as to identify the educational needs of the locality under its
jurisdiction and notify in the prescribed manner through the local
newspapers calling for applications from the educational agencies
desirous of establishing educational institutions.
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(2) In pursuance of the notification under subsection (1), any
educational agency including a local authority or registered body of
persons intending to
(a) establish an institution imparting education;
(b) open higher classes in an institution imparting primary
education;
(c) upgrade any such institution into a high school; or
(d) open new courses (Certificate, Diploma, Degree, PostGraduate
Degree Courses, etc.)
may make an application, within such period in such manner and to
such authority as may be notified for the grant of permission
therefor.
(3) Any educational agency applying for permission under sub
section (2) shall,
(a) before the permission is granted, satisfy the authority concerned,
(i) that there is a need for providing educational facilities to the
people in the locality ;
(ii) that there is adequate financial provision for continued and
efficient maintenance of the institution as prescribed by the
competent authority ;
(iii) that the institution is proposed to be located in sanitary and
healthy surroundings ;
(b) enclose to the application,
(i) title deeds relating to the site for building, playground, and garden
proposed to be provided ;
(ii) plans approved by the local authority concerned which shall
conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances needed for
constructing the proposed buildings; and
(c) within the period specified by the authority concerned in the order
granting permission,
(i) appoint teaching staff qualified according to the rules made by the
Government in this behalf ;
(ii) satisfy the other requirements laid down by this Act and the rules
and orders made thereunder failing which it shall be competent for
the said authority to cancel the permission.
(4) On and from the commencement of the Andhra Pradesh
Education (Amendment) Act, 1987, no educational institution shall
be established except in accordance with the provisions of this Act
and any person who contravenes the provisions of this section or
who after the permission granted to him under this section having
been cancelled continues to run such institution shall be punished
with simple imprisonment which shall not be less than six months
but which may extend to three years and with fine which shall not be
less than three thousand rupees but which may extend to fifty
thousand rupees :
Provided further that the Court convicting a person under this
section shall also order the closure of the institution with respect to
which the offense is committed."
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(emphasis supplied)
A bare reading of the aforesaid provisions of section 20(1) makes
it clear that the survey is conducted so as to identify the educational
needs of the locality would definitely include within its ken how many
institutions are operating in the area and whether there is any further
requirement of opening educational institutions/new courses in
existing colleges, and it is also imperative under section 20(3)(a)(i) that
educational agency has to satisfy the authority that there is a need for
providing educational facilities to the people in the locality. In case
there are already a large number of institutions imparting education in
the area the competent authority may be justified not to grant the
NOC, for permitting an institution to come up in the area.
13. The provisions contained in section 20 are wholesome and
intend not only to cater to the educational needs of the area but also
prevent the mushroom growth of the institutions/courses. In case
institutions are permitted to run each and every course that may affect
the very standard of education and may ultimately result in sub
standard education. There is already a paucity of wellqualified
teachers in a large number of institutions and the available seats in
Pharmacy course in the Hyderabad city are remaining vacant every
year in spite of the reduction in a number of seats. It had not been
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possible to fill up the available vacancies due to nonavailability of
students. Thus, it is apparent that when 30 institutions in Hyderabad
city are already running Pharmacy course, the refusal to grant NOC by
the University was wholly justified.
14. Apart from the provisions contained in section 20, when we
consider Regulations 5.2 and 5.3 which clearly provide that a new
college proposing to offer technical education with the University
affiliation shall first seek a NOC from the University before applying to
AICTE/PCI/any other statutory body. Regulation 5.3 provides that the
permission for starting of new programmes in the existing colleges
shall be considered by the University as per the priority/policy of the
State Government if any. Regulations 5.2 and 5.3 are extracted
hereunder:
“5.2 – A new college proposing to offer technical education with the
University affiliation shall first seek a No Objection Certificate (NOC)
from the University before applying to AICTE/PCI/other Statutory
Body.
5.3 – The permission for establishing Colleges and starting of new
programs in the existing Colleges shall be considered by the
University as per the priority/policy of the state government if any.”
15. In Government of A.P. & Anr. v. J.B. Educational Society & Anr .
(supra), the Court considered the validity of section 20 of the Act of
1982 visàvis section 10 of AICTE Act of 1987 and observed that the
two provisions are not repugnant to each other and they operate in
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different fields. The object and purpose of two enactments had been
considered by this Court and it observed that if there are more colleges
in a particular area, the State would be justified in not granting
permission to one more college in that area. Entry 25 of the
Concurrent List gives power to the State Legislature to make laws
regarding education, including technical education. The AICTE Act
deals with the general power of Parliament for coordination,
determination of standards in institutions for higher education or
research and scientific and technical educational institutions and
Entry 65 of List I deals with the union agencies and institutions. The
State has the competence to pass such legislation and Section 20 of
the Act of 1982 is for the welfare of the State. The Court observed:
“13. It is in this background that the provisions contained in the two
legislative enactments have to be scrutinized. The provisions of the
AICTE Act are intended to improve the technical education and the
various authorities under the Act have been given exclusive
responsibility to coordinate and determine the standards of higher
education. It is a general power given to evaluate, harmonize and
secure proper relationship to any project of national importance.
Such a coordinate action in higher education with a proper standard
is of paramount importance to national progress. Section 20 of the
AP Act does not in any way encroach upon the powers of the
authorities under the Central Act. Section 20 says that the
competent authority shall, from time to time, conduct a survey to
identify the educational needs of the locality under its jurisdiction
notified through the local newspapers calling for applications from
the educational agencies. Section 20(3)(a)(i) says that before
permission is granted, the authority concerned must be satisfied that
there is a need for providing educational facilities to the people in the
locality. The State authorities alone can decide about the educational
facilities and needs of the locality. If there are more colleges in a
particular area, the State would not be justified in granting
permission to one more college in that locality. Entry 25 of the
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Concurrent List gives power to the State Legislature to make laws
regarding education, including technical education. Of course, this is
subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry
66 of List I to which the legislative source is traced for the AICTE Act
deals with the general power of the Parliament for coordination,
determination of standards in institutions for higher education or
research and scientific and technical educational institutions and
Entry 65 deals with the union agencies and institutions for
professional, vocational and technical training, including the training
of police officers, etc. The State has certainly the legislative
competence to pass the legislation in respect of education including
technical education and Section 20 of the Act is intended for the
general welfare of the citizens of the State and also in discharge of
the constitutional duty enumerated under Article 41 of the
Constitution.
14. The general survey in various fields of technical education
contemplated under Section 10(1)(a) of the AICTE Act is not
pertaining to the educational needs of any particular area in a State.
It is a general supervisory survey to be conducted by the AICTE
Council, for example, if any IIT is to be established in a particular
region, a general survey could be conducted and the Council can
very much conduct a survey regarding the location of that institution
and collect data of all related matters. But as regards whether a
particular educational institution is to be established in a particular
area in a State, the State alone would be competent to say as to
where that institution should be established. Section 20 of the AP
Act and Section 10 of the Central Act operate in different fields and
we do not see any repugnancy between the two provisions.
21. The educational needs of the locality are to be ascertained and
determined by the State. Having regard to the regulations framed
under the AICTE Act, the representatives of the State have to be
included in the ultimate decisionmaking process and having regard
to the provisions of the Act, the Writ Petitioners would not in any way
be prejudiced by such provisions in the A.P. Act. Moreover, the
decision, if any, taken by the State authorities under Section 20(3)(a)
(i) would be subject to judicial review and we do not think that the
State could make any irrational decision about granting permission.
Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to
Section 10 of the AICTE Act and it is constitutionally valid.”
16. In view of the aforesaid decision, the High Court has erred in law
in holding that it was not permissible for the State Government to
frame such a policy and the University was bound to issue NOC. The
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decision of the High Court runs to the contrary, ignores and overlooks
the law laid down in the said decision.
17. The Government of Telangana vide its communication dated
29.11.2016 to the AICTE had communicated the views of the State
Government regarding AICTE approval for the establishment of
educational institutions for the session 201718. After discussing the
matter by the Director of Technical Education, ViceChancellor of the
University and State Council of Higher Education the State
Government had expressed serious concern at the proliferation and
establishment of technical institutions and the unprecedented
expansion in the intake in all the courses offered by all the technical
institutions coming within the purview of AICTE. Data was given in the
tabular form including that of the Pharmacy. It was pointed out that in
the year 201516 sanctioned intake in Pharmacy was 11490, seats
remained vacant were 4035, in academic session 201617 sanctioned
intake was 9226, seats vacant were 1892.
18. The AICTE Act, 1987 defines technical education in section 2(g)
to mean programmes of education inter alia in Pharmacy also. There is
no provision in the said Act to the contrary to curtail the power of the
State as well as of University. The AICTE has framed the Regulations
under the Act of 1987 in the exercise of the power conferred under
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section 23(1) read with sections 10 and 11 of the Act of 1987 called the
All India Council for Technical Education (Grant of approvals for the
Technical Institutions) Regulations, 2016. The technical institution is
required to seek prior approval of the Council as provided in
Regulation 4.2. Regulation 4.18 provides that the State
Government/UT Administration and the Affiliating University/Board,
as the case may be, shall forward their views along with the
perspective plan of the State and then the application shall be
processed for grant of approval. Regulation 4.18 is extracted
hereunder:
“4.18 The State Government/UT Administration and the Affiliating
University/Board shall forward their views on the applications
received under Clause 4.1 as applicable, with valid reasons along
with the perspective plan of the State, within a period of 21 days
from the date of receipt of applications which shall be taken into
account by the Regional Committee for further processing for grant
of approval. If the application is not processed further, the
processing fee after a deduction of 50000/ (Rupees Fifty thousand
only) shall be refunded to the applicant.
If the views of the State Government/UT Administration and the
Affiliating University/Board are not received within a prescribed time
schedule as mentioned in the Approval Process Handbook, it shall be
presumed that they do not have any objection and the Council shall
proceed further for processing of applications. However, the Council
shall consider the previous communications, if any, received from
the State Government/UT administration, the Affiliating
University/Board against any Institutions.”
(emphasis supplied)
19. Regulation 4.18 cannot be said to be repugnant to Regulations
5.2 and 5.3 of the University, and there is no repugnancy in AICTE Act
and section 20 of the Act of 1982 as observed by this Court in
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Government of A.P. & Anr. v. J.B. Educational Society & Anr . (supra).
The perspective plan had been prepared by the State of Telangana for
201819. In the perspective plan the State Government has pointed
out the abstract of courses and seats in the existing engineering
colleges for the academic year 201718 and it was mentioned that
there was an imbalance of seats. Following is the extract relied upon
by the respondents:
"A perusal of the above Table reveals the fact that the four
programmes viz. Information Technology, Computer Science and
Engineering, Electronics and Communication Engineering and
Electrical and Electronics Engineering together account for
83,290 seats of the total Intake of 1,26,855 seats. This accounts
for nearly 66% of the seats and rests account for about 43,565
seats, which is 34% of the total intake. This lopsided priority will,
in the long run, have an adverse effect on the growth of
infrastructure in the country with its attendant consequences.
This imbalance needs to be corrected on a priority basis so that
the manufacturing and other sectors do not suffer. The courses
on demand related to latest Technologies and needs of the
Industry such as Mining, Textile, Pharmacy, Automobile,
Aviation Civil Engineering, and Construction Technology and
hence their enhancement in Intake may be considered in the
State, while keeping in view of the 14 Thrust Areas as mentioned
in Para 5, Page 14 of this Plan. This is also keeping in view that
the Pharma city, Textile hub, Fabcity, ITIR, IT Hubs, etc. are
emerging in Telangana State.”
At the same time in the conclusions and recommendations made
by the Government in perspective plan, it has been pointed out that
AICTE may declare a holiday on the establishment of new technical
institutions for the academic year 201819. This holiday applies not
only to the establishment of new engineering colleges but may also be
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extended inter alia to BPharmacy institutions. It was also pointed out
that in case the Pharmacy Council of India has not accorded the
approval, AICTE should not grant approval to the Pharmacy colleges. It
was inter alia mentioned in the recommendations that new
programmes may be sanctioned in Mining, Granite, Textile, Pharmacy,
Automobile etc. based on “new technologies”. However, it was not the
case, that course would be based on new technology. Following is the
relevant extract of the conclusions and recommendations made by the
State:
“6. CONCLUSIONS & RECOMMENDATIONS
Thus, the various concerns that arise from all the above data are
summarized below for the consideration of the All India Council of
Technical Education:
| Issue | Recommendation |
| The AICTE has been<br>sanctioning the Colleges<br>routinely every year without<br>actually assessing the ‘Need’ of<br>the State. With a massive<br>number of such Colleges<br>established in the State, there<br>is a severe shortage of qualified<br>Teaching faculty, which is<br>seriously affecting the Quality<br>of Education offered by many of<br>these institutions. Moreover, it<br>is observed that a large number<br>of seats are falling vacant every<br>year as the total number of<br>seats available is far more than<br>the takers. During the year<br>201617 for instance, there are<br>about 32784 seats and during<br>201718, there are 29367 seats<br>that remained vacant in the | The AICTE may thus declare a<br>holiday on the establishment of<br>New Technical Institutions from<br>the Academic Year 201819. The<br>holiday applies not only with<br>regard to the establishment of<br>New Engineering Colleges in the<br>State but may also be extended<br>to B.Pharmacy, MBA/MCA<br>Institutions.” |
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| Engineering course (based on<br>the affiliations). With poor<br>admissions, the ‘financial<br>viability’ in running several<br>colleges is becoming a problem<br>and thus making Colleges to<br>offer poor Quality of Education,<br>which is totally undesirable. In<br>fact, in several Colleges, the<br>admissions during last year<br>and this year in Engineering<br>and MCA programmes are just<br>single digits. This situation has<br>led to an unhealthy<br>competition among the Colleges<br>for admissions by wooing the<br>students with all sorts of false<br>promises. This is highly<br>harmful to the Professional<br>Educational System in the<br>State. |
|---|
“ OTHER RECOMMENDATIONS
In view of all the above and to improve the Quality of Education in
Private, Unaided Colleges in the State of Telangana, it is recommended
that:
New Programmes may be sanctioned such as Mining, Granite, Textile,
Pharmacy, Automobile, Civil Eng. Construction Technology based on
New Technologies and the needs of the Industry keeping in view the 14
Thrust Areas mentioned in Para 5 of Page 14 of this Plan."
20. Admittedly it is not a case of new technology to be adopted for
the proposed course of DPharma by the college in question. Thus, the
State had put up a moratorium for Pharmacy courses also. It is
significant to note that in the conclusions and recommendations, it
was observed that AICTE had permitted imbalanced growth of the
institutions in the area which could be avoided. In fact, we see that
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such an expert body often ignores such relevant factors which makes
action arbitrary.
21. The decision taken by the State Government to impose a
moratorium as apparent from facts reflected in perspective plan is
based on a survey and supported by the data. Considering the fact
that seats are going abegging. Even in 201718 in the Pharmacy
course, data has been given in the SLP that among 56 colleges
affiliated to the University, 30 were in the city of Hyderabad and out of
total 1630 seats, 173 had remained vacant. Thus, it is apparent that a
large number of seats remained vacant. Not more than 30 seats can be
allotted to one institution. In the circumstances, the observation of
the High Court that it was for the institution to worry and consider the
viability and it was not for the University or State Government to take
same into consideration, is completely a flimsy and impermissible
reason employed. The mushroom growth of educational institutions
cannot be permitted. The observation made by the High Court that
unfit institution will automatically shut down the courses is not the
judicious approach warranted in such matters. It is not only that the
requirement of the locality should exist but it has to be ensured that
only the standard educational institutions should come up and once
they come up, they should be able to survive. A large number of
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Institutions are not to be opened up to die an unnatural death on the
principle of survival of the fittest and due to nonavailability of
teachers/students. Standard of education cannot be compromised
and sacrificed by permitting institutions to come up in a reckless
manner without there being any requirement for them at a particular
place. There is a need to strengthen the existing system of education
not to make it weak by further complicating the issues by wholly
unwarranted approach as the one adopted by the High Court. It
cannot be left at the choice of the institution to open the course
whenever or wherever they desire. The High Court has also erred in
observing that the seats remaining vacant could not be the relevant
criteria for refusal of NOC.
22. Mr. V. Giri, learned senior counsel appearing for the respondents
as referred to the decision in State of T.N v. Adhiyaman Educational &
Research Institute, (1995) 4 SCC 104, to contend that once the field is
occupied by the AICTE Act enacted under Entry 66 List I, the State
Legislation falling under Entry 25 List III to the extent it is in conflict
with the Central Legislation, would be void. In case of repugnancy
between legislation made by Parliament and that made by the State
Legislation on a subject covered under List III, the Central Legislation
shall prevail and to that extent, the State Legislation shall be void
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unless it is saved by Article 254(2) of the Constitution. The expression
coordination used in Entry 66 has been considered by the Court to
mean harmonization with a view to forging a uniform pattern for a
concerted action according to a certain design, scheme or plan of
development. It is further observed that whether the State law is
repugnant to the Central Act under Entry 25 will depend upon the
facts of each case. Under the AICTE Act, the Council has been
established for coordinated and integrated development of the
technical education system at all levels throughout the country. It is
required to ensure proper maintenance of norms and standards in the
technical education system. The norms and standards to be
prescribed for the technical education intend to ensure the growth of
technical education in all parts of the country. The norms and
standards have to be reasonable, adaptable, attainable and
maintainable by institutions throughout the country. When it comes
to such a matter, the provisions of the State Act which impinge upon
the provisions of the Central Act are void and therefore unenforceable.
So far as the matters which fall under Section 10 of the AICTE Act is
concerned, in case of an institute imparting technical education, the
Central Act has to prevail. At the same time, this Court in the
aforesaid decision has observed that provisions of the University Act
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regarding affiliation of technical colleges like the engineering colleges
and the conditions for grant and continuation of such affiliation by the
University shall, however, remain operative but the conditions for
affiliation will have to be in conformity with the norms and guidelines
prescribed by the Council in respect of the matter entrusted to it
under Section 10 of the AICTE/Central Act. The Court further
observed that so far as technical institutions are concerned, the norms
and the standards and the requirements for their recognition and
affiliation which may be laid down by the State Government and the
University should not be in conflict and inconsistent with those laid
down by the Council under the Central Act.
23. In Adhiyaman Educational & Research Institute case (supra), the
power of the State Government to grant permission to start a technical
institute that is an Engineering College in the State of Tamil Nadu
came up for consideration. College was functioning and a report was
received from the Director of Technical Education after inspection
regarding lack of infrastructural facilities. The High Power Committee
in its report stated that conditions imposed by the Government were
not fulfilled. The Director, Technical Education issued a show cause
notice asking the College to explain why the permission granted by the
Government to start the college should not be withdrawn. The High
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Power Committee also resolved to reject the request of the Trust
regarding provisional affiliation for 198990. Questioning the same a
writ petition was filed. It was held that the State Government had no
power to cancel the permission granted to the Trust to start the
College. It was required to be canceled under the AICTE Act. It was
observed that duty was imposed on the Council for recognizing or de
recognizing any technical institution in the country.
24. In Adhiyaman Educational & Research Institute case (supra),
question arose as to the power of the State Government and the
University respectively to derecognize and disaffiliate an Engineering
College. Considering Entry 66 of List I and Entry 25 of List III, this
Court observed that coordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions has always remained the special preserve of
Parliament. Considering the constitution of Council under the AICTE
Act, it was a representative body of various States and Union
Territories and the Council functions are enjoined under Section 10 of
the AICTE Act. This Court opined that Council has been established
to promote the qualitative improvement of education in relation to
planned quantitative growth. Norms and standards are set by the
Council so as to prevent lopsided or an isolated development of
23
technical education in the country. Unnecessarily high norms or
standards, say for admission to the technical institution or to pass the
examination may not only deprive a vast majority of the people the
benefit of the education and the qualification but would also result in
concentrating technical education in the hands of the affluent and
elite group and ultimately result in depriving the country of a large
number of otherwise deserving technical personnel. This Court has
considered the provisions of the State Act and the provisions of the
Central Act in various areas and in particular allocation and disbursal
of grants. This Court observed:
“27. The provisions of the State Act enumerated above show that
if it is made applicable to the technical institutions, it will overlap
and will be in conflict with the provisions of the Central Act in
various areas and, in particular, in the matter of allocation and
disbursal of grants, formulation of schemes for initial and in
service training of teachers and continuing education of teachers,
laying down norms and standards for courses, physical and
institutional facilities, staff pattern, staff qualifications, quality
instruction assessment and examinations, fixing norms and
guidelines for charging tuition and other fees, granting approval
for starting new technical institutions and for introduction of new
courses or programmes, taking steps to prevent
commercialisation of technical education, inspection of technical
institutions, withholding or discontinuing grants in respect of
courses and taking such other steps as may be necessary for
ensuring the compliance of the directions of the Council,
declaring technical institutions at various levels and types fit to
receive grants, the Constitution of the Council and its executive
Committee and the Regional Committees to carry out the
functions under the Central Act, the compliance by the Council of
the directions issued by the Central Government on questions of
policy etc. which matters are covered by the Central Act. What is
24
further, the primary object of the Central Act, as discussed
earlier, is to provide for the establishment of an All India Council
for Technical Education with a view, among others, to plan and
coordinate the development of technical education system
throughout the country and to promote the qualitative
improvement of such education and to regulate and properly
maintain the norms and standards in the technical education
system which is a subject within the exclusive legislative field of
the Central Government as is clear from Entry 66 of the Union
List in the Seventh Schedule. All the other provisions of the Act
have been made in furtherance of the said objectives. They can
also be deemed to have been enacted under Entry 25 of List III.
This being so the provisions of the State Act which impinge upon
the provisions of the Central Act are void and, therefore,
unenforceable. It is for these reasons that the appointment of the
HighPower Committee by the State Government to inspect the
respondentTrust was void as has been rightly held by the High
Court.”
The Court has observed that the State Act which impinges upon
the provisions of the Central Act has to be held to be void. In the case,
the issue was of derecognition. The power of the recognition of
institution is squarely reserved under the Central Act i.e., AICTE Act.
Thus, it would have power to derecognition also and for the purpose,
the procedure has been given in the AICTE Act. Thus, in Adhiyaman
, the factual situation was totally
Educational & Research Institute
different. In that context, the discussion has been made about the
provisions of Section 10 and the provisions of the State Act of Tamil
Nadu. The provisions in State Act of 1982 are not repugnant to AICTE
Act. The vires of provisions and validity of Act of 1982 has not been
questioned and otherwise, also there is no room to accept the
25
submission that the provisions of Section 20 of the Act, 1982 are
inoperative.
25. In Jaya Gokul Education Trust v. Commissioner & Secretary to
Government of Higher Education Department, Thiruvananthapuram,
Kerala, (2000) 5 SCC 231, relied on by the respondents, question
arose for consideration whether under Clause 9(7) of the Kerala
University First Statute, which provided that Syndicate has the right
to decide about the affiliation to be granted or not after considering the
views of the Government. The provisions .which came up for
consideration have been referred to :
“20. The only provision relied on before us by the State
Government which according to its learned senior counsel,
amounted to a salutary 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)(6)...
(7) After considering the report of the Commission and the report
of the local inquiry, if any, and after making such further inquiry
as it may deem necessary, the Syndicate shall decide, after
ascertaining the view of the Government also, whether the
affiliation 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.”
(emphasis supplied)
26
As the provisions of Clause 9(7) of the Statute merely required
the University to obtain the views of the State Government, that could
not be characterized as requiring the approval of the State
Government. This Court also opined that the question of affiliation
was a different matter and was not covered by the Central Act. On
considering the provisions under Clause 9(7) of Kerala University First
Statute, this Court held that there was no statutory requirement for
obtaining the approval of the State Government even if there was one,
it would be repugnant to the AICTE Act. The decision is based on the
provisions of Clause 9(7).
26. The provisions contained in Section 20 of the Act of 1982
involved in the instant case are different and its validity visàvis to
AICTE Act has already been upheld by this Court. Apart from that, it
has not been pointed out that in the exercise of powers under Section
10 of Central Act, norms have been fixed by the AICTE as to how many
colleges should function at a particular city/place. Definitely the State
Government and the University, in the absence of any such
norms/rules having been framed by the AICTE can always have their
say as per applicable statutory provisions or policy. In the instant
case, Section 20 of Act of 1982, enables Universities to grant no
objection certificate after considering the local requirement and as no
27
guidelines in this regard have been framed by the AICTE, it cannot be
said to be an exercise of power against the norms fixed by AICTE.
Consequently, no repugnancy arises. The mushroom growth of the
institutions cannot be permitted, was rightly pointed out in the
perspective plan. A large number of institutions have already been
permitted to function in the State by the Central Bodies. It is painful
to note that at several places mushroom growth of the institutions had
been permitted by such bodies in an illegal manner. In case there is
no check or balance and the power is exercised in an unbridled
reckless manner, the sufferer is going to be the standard of education.
At the same time, there is a necessity of good institutions with new
technology, but at the same time mushroom growth of the
substandard institutions cannot be permitted. There has to be a
requirement of educational institutions in the locality and that is one
of the main considerations.
27. The counsel appearing for the respondents were not able to point
out any of the provisions in the AICTE Act and rules for adjudging
requirement of the locality have been framed by the Council. In the
absence of guidelines or norms framed to check the mushroom growth
of the institutions, the university cannot be deprived of considering the
said aspect. The State Government had also sent a communication to
28
AICTE regarding the alarming increase in the number of technical
educational institutions in the area in question and imbalanced
growth. The decision of State has been taken in an objective manner
and the same is based on the consideration of data and could not be
said to be irrational or arbitrary in any manner whatsoever. The policy
decision of the State Government cannot be said to be illegal and on
that basis, the University has taken the decision in terms of Section 20
of the Act of 1982.
28. In State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya, (2006) 9 SCC 1, question arose for consideration as to
the power of the Government of Maharashtra as it refused to issue no
objection certificate for starting new BEd college for the academic year
200506 in view of the provisions of National Council for Teacher
Education Act (NCTE Act). Though the permission was granted by the
Council under Section 14 of the NCTE Act to start the college. This
Court held that university was bound to implement a decision of the
NCTE Act and grant affiliation in accordance therewith irrespective of
the bar under Section 83 of the Maharashtra Universities Act, 1994.
This Court also observed that it does not imply that under Sections 82
and 83 of the Maharashtra Universities Act, 1994 were null and void.
29
They would not apply to the case but in other appropriate courses.
This Court observed that:
“61. Interpreting the statutory provisions, this Court held that by
enacting Section 10A, Parliament had made "a complete and
exhaustive provision covering the entire field for the
establishment of a new medical college in the country". No further
scope is left for the operation of the State Legislation in the said
field which was fully covered by the law made by Parliament. The
Court, therefore, held that the proviso to Subsection (5) of
Section 5 of the State Act which required prior permission of the
State Government for establishing a medical college was
repugnant to Section 10A of the Central Act and to the extent of
repugnancy, the State Act would not operate. The Court noted
that in the scheme that had been prepared under the Regulations
for the establishment of new medical colleges, one of the
conditions for the qualifying criteria laid down was 'essentiality
certificate' regarding the desirability and of having the proposed
college at the proposed location which should be obtained from
the State Government. The proviso to Subsection (5) of Section 5
of the Act, therefore, must be construed only as regards
"proposed location". The 'essentiality certificate', however, could
not be withheld by the State Government on any 'policy
consideration' inasmuch as the policy and the matter of
establishment of new medical college rested with the Central
Government alone.
62. From the above decisions, in our judgment, the law appears
to be very well settled. So far as coordination and determination
of standards in institutions for higher education or research,
scientific and technical institutions are concerned, the subject is
exclusively covered by Entry 66 of List I of Schedule VII to the
Constitution and State has no power to encroach upon the
legislative power of Parliament. It is only when the subject is
covered by Entry 25 of List III of Schedule VII to the Constitution
that there is a concurrent power of Parliament as well as State
Legislatures and appropriate Act can be by the State Legislature
subject to limitations and restrictions under the Constitution.”
30
29. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra)
Court further observed that proviso to subsection 5 of Section 5 must
be construed with respect to “proposed location”. The essentiality
certificate could not be dealt with by the State Government on any
policy consideration inasmuch as the policy and the matter of
establishment of new medical college rested with the Central
Government alone. In the instant case, it is mainly with respect to
local area i.e., the city of Hyderabad which power has been saved by
this Court even in the aforesaid dictum.
30. In Thirumuruga Kirupananda Variyar Thavathiru Sundara
Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu,
(1996) 3 SCC 15, the provisions of Tamil Nadu Medical University Act,
1987 came up for consideration. The provisions of the Act are
different. For the establishment of a Medical College, State
Essentiality Certificate and affiliation from University is required. In
the instant case, the matter is about the proposed location and
affiliation out of 36 Pharmacy colleges in the State of Telangana and
30 are located in Hyderabad city alone which are more than adequate
in number. Thus, rightly decision has been taken not to start another
new course at the proposed location at Hyderabad city. Thus, the said
decision is no avail to espouse the cause of the respondents.
31
31. The respondents have also referred to the decision in Rungta
Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda
Technical University, (2015) 11 SCC 291, wherein question came up for
consideration with respect to the power of examining authority i.e.,
University and State Government, to withdraw provisional affiliation or
to decline grant of affiliation. The decision was taken to disapprove
provisional affiliation granted to the college. This Court observed that
the objections on the basis of which action was taken squarely fall
within the sweep of one or the other areas which only AICTE has
exclusive jurisdiction to deal with. These shortcomings ought to have
been brought to the notice of AICTE to take appropriate action against
the college. On facts of the instant case, the decision cannot be
applied as it is not the case of shortcomings.
32. Resultantly, the appeal deserves to be allowed, same is hereby
allowed. We quash the impugned judgment and order. No costs.
…………………………..J.
(Arun Mishra)
.……..…………………..J.
(Indira Banerjee)
October 29, 2018
New Delhi.