Full Judgment Text
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PETITIONER:
P.KASILINGAM & ORS
Vs.
RESPONDENT:
P.S.G. COLLEGE OF TECHNOLOGY & ORS
DATE OF JUDGMENT24/03/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
SAWANT, P.B.
CITATION:
1995 AIR 1395 1995 SCC Supl. (2) 348
JT 1995 (3) 193 1995 SCALE (2)387
ACT:
HEADNOTE:
JUDGMENT:
S.C..AGARWAL, J.:
1. These appeals raise the common question whether a
private engineering college is governed by the provisions of
the The Tamil Nadu Private Colleges (Regulation) Act, 1976
(hereinafter refereed to as ’the Rules) made under the Act.
Third question has arisen in the context of P S.G.College of
Technology and Polytechnic, (hereinafter referred to as the
’College) in three writ petitions (Writ petitions Nos. 2604,
3130 and 3205 on 1981)before the Madras High Court. By its
judgement dated December 23, 1982, the High Court, while
dismissing Writ petitions Nos. 2604 and 3130 of 1981 and
allowing Writ petitions No. 3205 of 1981. has held that the
Act and the Rules do not apply to the College. These
appeals are directed against the said judgment of the High
Court.
2. On January 31, 1976 the President of India issued a
Proclamation under Article 356 of the Constitution of India,
in relation to the State of Tamil Nadu, declaring inter alia
that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament.
Parliament under Article 357 (1)-(a) of the Constitution
enacted the Tamil Nadu State Legislature (Delegation of
Powers) Act, 1976 whereby it conferred on the President of
India the powers of the Legislature of the State of Tamil
Nadu to make laws in relation to State of Tamil Nadu. In
exercise of the said powers the President of India enacted
the Act to provide for the regulation of private colleges in
the State of Tamil Nadu. Chapter 11 (Sections 3 to 10) make
provisions for establishment, permission to establishment
and management of the private colleges. In Chapter III
(Sections 11 to 14) provision is made for college committee
and its constitution and functions. Chapter IV (Sections 15
to 24) deals with the terms and conditions of service of
teachers and other persons employed in private colleges.
Chapter V (Sections 25 to 32) relates to control of private
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colleges. Other provisions are contained in Chapter VI
(Accounts, Audit, Inspection and Furniture), Chapter VII
(General Provisions regarding Appeal and Revisional),
Chapter VIII (Penalties and procedure) and Chapter IX
(Miscellaneous)
3. In exercise of thee powers conferred by Section 53 of
the Governor of Tamil Nadu has maid the Rules. Rule 3 makes
provision for the application for permission to establish a
college and prescribes the form
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(Form 2) for such an application. Rule 4 provides for grant
of permission by State Government. Rule 7 makes provision
for payment of grants to the college for the purpose of
teaching, construction of buildings, purchase of building
site, play ground, furniture, books and appliances. Rule 8
relates to Constitution of committee. Rule 11 to 15 deal
with the conditions of service, etc. of teachers and other
persons in college. Rule 16 appertains to closure of
private colleges.
4. On March 18, 1981 the Governing Body of the College
passed a resolution whereby it was resolved that the Act
and the Rules do not apply to the College. P.
Kasilingam, as lecturer in the Electrical Electronics and
Communication Engineering in the College, filed a Writ
Petition (Writ petition No. 2604 of 1981) wherein he
challenged the validity of the said resolution of the
Governing Body of the College. In the said Writ Petition
the said petitioner challenged the power of the College to
advertise on All India Basis and call applications for
filling up vacancies in faculty positions in various
departments. The case of the said petitioner was that in
view of Rule 11 (4) (i) and (ii) it is incumbent on ’the
part of the College to consider the claims of all qualified
teachers in the College while making promotions and making
of direct recruitment to promotional posts could arise only
when none of the qualified teachers in the College is found
qualified for promotion. The said petitioner claimed that
he is qualified for promotion from the post of Lecturer to
the post of Assistant Professor in the Department of
Electrical, and Electronics Engineering or Electronics and
Communication Engineering and’ that without promoting him
the causing of all India advertisement for filing up the
vacancies was illegal. Another Writ Petition [Writ Petition
No. 3130 of 1981] was filed by number of teachers in the
College wherein they challenged the resolution of the
Governing Body of the College dated March 18, 1981. As a
counter to these writ petitions the College filed a Writ Pe-
tition [Writ Petition No. 3205 of 1981] wherein it was
asserted that the professional and technical colleges, like
the College, are not included within the purview of the Act
and the Rules and that the Central Government as well as the
State Government have both proceeded on the basis that the
provisions of the Act and the Rules do not cover such
professional colleges.
5.At this stage it would be relevant to mention that the All
India Council for Technical Education [AICTE] was estab-
lished by the Government of India by a Government resolution
in 1945 as a national expert body to advise the Central and
the State Governments for ensuring the coordinated
development of technical education in accordance with
approved standards. Till the enactment of the All India
Council for Technical Education Act, 1987, whereby the AICTE
was established was a statutory body, the AICTE was func-
tioning as a non-statutory body. Keeping in view the scheme
of financial assistance of the Government of India for the
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development of technical education and the recommendations
made by the Government of India in that regard, the
Government of Madras, by GO No. 1174 dated July 4, 1957, set
up a State Board of Technical Education and Training for the
State of Madras [Now State of Tamil Nadu] to advise the
State Government on general programme as well as specific
individual schemes necessary for bringing about coordinated
development of Technical Edu-
197
cation and Training in the State at all levels. By the said
order the Government of Madras also constituted the
Directorate of Technical Education as a separate unit with
the Chief Engineer, Public Works Department (General and
Buildings) as the ex-officio Director of Technical
Education. The Director of Technical Education has been
entrusted with the duties that were being performed by the
Director of Public Instruction in respect of all the
Colleges of Engineering and Technology in Madras State
including Government Institutions as well as Aided Private
Institutions. In addition, he has been entrusted with the
following duties: -
"(a) To supervise and direct the imple-
mentation of all schemes included in the
Second Five Year Plan for expansion and
improvement of the College of Engineering and
Technology as well as Polytechnics;
(b) To verify the fulfillment by all Insti-
tutions of the Conditions attached to
grant-in-aid received by them from the
Government of India and/or from the State
Government;
(c) To initiate proposals for expansion and
improvement of Technical Education and
Training at all levels for the consideration
by the Board of Technical Education and
Training and to supervise and direct the
implementation of all recommendations by the
Government; and
(d) To maintain liasion between the Board of
Technical Education and Training of the State
and the Southern Regional Committee of the All
India Council of Technical Education."
6. In discharge of his duties the Director of Technical
Education submits proposals for starting new Private
Engineering Colleges in Tamil Nadu to the State Government
for approval.
7. In 1967 the Director of Technical Education, under the
Authority of the State Government, issued the Grant-in-Aid
Code of the Madras Technical Education Department
[hereinafter referred to as the Grant-in-Aid Code’]
containing rules for sanctioning Grant-in-aid to all
recognised technical educational institutional under private
management. Article 3 of the Grant-in-Aid Code lays down
that the said rules shall apply to all private technical
educational institutions recognised or to be recognised
hereafter by the Government or any authority authorised by
the Government in this behalf from time to time. Article 5
specifies the grants may be (i) Technical grants, for
teaching which are recurring, and (ii) Building and
equipment grants, for the construction, enlargement,
improvement and purchase of institutional buildings and for
purchase of furniture, apparatus, chemicals and appliances
or books for institutional libraries and of the plant,
materials, equipment and tools requires for laboratories and
workshops, which are nonrecurring. In Chapter II of the
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Grant-in-Aid Code the conditions of aid are laid down which
include the constitution of the Governing Council, its
functions, meetings, endowments, selection of staff and
their conditions of service and admission of students, etc.
Article 21 in the said Chapter provides that "no new course
shall be started or intake to the approved courses increased
without the prior approval of (1) the All-India Council for
Technical Education and its Southern Regional Committee or
(2) the Central Government in the Ministry of Education or
(3) the Govern-
198
ment/Director as the case may be." Chapter III of the Grant-
in-Aid Code deals with non-recurring grant for Buildings,
while Chapter IV deals with nonrecurring grants for books,
furniture and equipments and Chapter V deals with recurring
grants. The Director of Technical Education is the au-
thority who has been entrusted with the enforcement of the
provisions of the Code.
8. We may briefly refer to the relevant provisions of the
Act and the Rules.
9. In sub-section (3) of Section 1 of the Act it is laid
down that the Act applies to all private colleges. The
expression "private college" is defined in sub-section (8)
of Section 2 as follows: -
"Private college", means a college maintained
by an educational agency and approved by, or
affiliated to, a university but does not
include a college-
(a)established or administered or
maintained by the Central Government or the
Government or any local authority or any
university; or
(b)giving, providing or imparting religious
instruction alone, but not any other
instructions. "
Section 3 of the Act lays down: -
"New private college to obtain permission.-
Save as otherwise expressly provided in this
Act, no person shall, without the permission
of the Government and except in accordance
with the terms and conditions specified in
such permission, establish, on or after the
date of commencement of this Act, any private
college:
Provided that it shall also be necessary to
obtain affiliation of such college to a
university."
10.Section 4 requires that the educational agency of every
private college proposed to be established on or after the
date of the commencement of this Act shall make an
application to the Government for permission to establish
such college and it provides the requirements for such
application. Section 5 makes provision for grant of
permission by the State Government and under Section 6 such
permission is deemed to have been granted in respect of
private college in existence immediately before commencement
of the Act on receipt of a statement under sub-section (3)
of Section 4.
11.In the Rules the expression "College" is defined in
clause (b) of Rule 2 as under:-
"College " means and includes Arts and Science
College, Teachers Training College, Physical
Education College, Oriental College, School of
Institute of Social Work and Music College
maintained by the educational agency and
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approved by, or affiliated to the University.
"
12.The expression "Director" defined in clause (d) of Rule 2
to mean the Director of Collegiate Education who has been
assigned various functions in relation to private colleges
under the Rules. ’Mere is no reference to Director of
Technical Education in the Rules.
13.Before the High Court the State of Tamil Nadu as well as
the Union of India, who had been impleaded as respondents in
Writ Petition No. 3205 of 1981 filed by the College, had
taken the stand that the College was not covered by the
provisions of the Act and the Rules. The stand of the
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State in these appeals is, however, completely opposite
inasmuch as it has been contended on behalf of the State
that private professional colleges imparting technical
education fall within the ambit of the Act and the Rules.
14.Before we proceed further we may briefly refer to an
earlier Writ Petition No. 2756 of 1976 filed by Kasilingam
in the High Court. An enquiry was pending against
Kasilingam and during the pendency of the said enquiry
Kasilingam is alleged to have given a letter of resignation
on March 19, 1976 with a request that he be relieved of his
duties from the College after six months from the date of
that letter. This letter was accepted by the Principal of
the College who agreed to relieve Kasilingam with effect
from September 19, 1976 but an order was issued on April 5,
1976 relieving Kasilingam with immediate effect and
enclosing a cheque for the salary payable to Kasilingam for
the remaining portion of the six months period. Kasilingam
submitted a memorandum to the Governor of Tamil Nadu
complaining that the letter of resignation given by him was
not voluntary but was a result of coercion and threat. This
memorandum to the Governor was endorsed to the University of
Madras for consideration. It was dismissed by Syndicate of
the Madras University on May 15, 1976 on the ground, among
others, that no appeal would lie to the Syndicate.
Thereupon Kasilingam filed Writ Petition No. 2756 of 1976
praying for the issue of a writ of certiorari to quash the
order of the University. In the said Writ Petition it was
contended that having regard to the definition of "College"
occurring in the Rules the professional colleges are not
included and, therefore, the provisions of the Act and the
Rules would not apply to the College and the University was
the competent authority to deal with the appeal of
Kasilingam. The said contention was rejected by a learned
single Judge on the view that the expanded definition of
"private College" as laid down in sub-section (8) of Section
2 cannot be abridged or curtailed by the Rules and that the
definition of "College" occurring in the Rules is an
inclusive definition of colleges. Thereafter, Kasilingam
filed an appeal to the Government which was forwarded to the
Additional Director of Technical Education for conducting an
enquiry and submitting a report and after receiving such
report the Government allowed the appeal and directed
reinstatement. The College filed a Writ Petition No. 16 of
1979 against the said order of the Government and the High
Court by order dated October 1, 1979 allowed the said writ
petition on merits and set aside the order of the State,
Government. Kasilingam filed an appeal [Civil Appeal No.
493 of 1980] against the said decision of the High Court
which was allowed by this Court and the order of the State
Government to reinstate Kasilingam in service was restored
and the matter was remitted to the Government to decide as
to whether Kasilingam is entitled to all arrears of pay and
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allowances upon his reinstatement in service.
15.Before the High Court it was urged that the decision in
Writ Petition No. 2756 of 1976 holding that professional
colleges are included in the definition of "private college"
contained in sub-section (8) of Section 2 of the Act
operates as res-judicata. The said contention was rejected
by the High Court on the view that the judgment in Writ
Petition No. 2756 of 1976 was one of dismissal of the writ
pe-
200
tition and the College could not be said to be a person
aggrieved by the judgment and that neither die Union of
India nor the Government of Tamil Nadu were parties to the
Writ Petition. According to the High Court the conduct of
the College in not questioning the jurisdiction of the
Government in entertaining the appeal on the ground that the
Act and the Rules are not applicable and fighting the case
on merits at the subsequent stages could not in any way be
considered as a conduct which would preclude the College
from agitating the question of the validity or applicability
of the Act and the Rules.
16.On an examination of the provisions of the Act and the
Rules as well as the Grant-in-Aid Code the High Court has
held that professional private colleges are outside the
ambit of the Act and the Rules. Referring to the definition
of "private college" as contained in Section 2(8) of the Act
and the definitions of "College" as contained in Rule 2(b)
and "Director" in Rule 2(b) the High Court has observed
"It is true that the Rules could not restrict
the application of the Act. But we are not
reading the Rules as restricting the operation
of the Act, but as an instance of how the
authorities who are to enforce the provisions
of the Act have understood and applied the
provisions, keeping in view the intentions of
the Legislature. All along the Central
Government and the State Government were pro-
ceeding on the basis that the Act is not are
professional institutions."
"The understanding of the State Government
and its officers, who are the competent
persons to enforce the Act and the Rules, on
the applicability of the Act and the Rules to
professional and technical applicable to
engineering ring colleges which
institutions, though the Act had been in force
for a few years. only, could, in our opinion,
justifiably invoked in interpreting the
provisions of the Act and the Rules on the
principle of ’communis error facit jus’."
17.The High Court has also held that the Central Government
had issued directions and instructions relating to technical
educational institutions which are referable to matters
covered by Entry 66 of List I in the Seventh Schedule to the
Constitution in respect of which Parliament alone has the
power to make laws and that the Union Government could
exercise its executive powers in respect of those matters
even in the absence of law made by the Parliament and that
power of the State Legislature to make laws in respect of
matters falling under Entry 25 of List III of the Seventh
Schedule being subject to the power conferred on Parliament
under Entry 66 of List I, the State Legislature had no power
to enact a law governing professional and technical
educational institutions and, therefore, the Act and the
Rules could not apply to professional and technical edu-
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cational institutions.
18.The said view of the High Court has been assailed before
us by the appellants in these appeals, viz., the members of
the teaching staff of the College as well as by the State of
Tamil Nadu. Shri P.P. Rao, the learned senior counsel
appearing on behalf of the State of Tamil Nadu, has urged
that private colleges are covered by the Act and the Rules
and the wide amplitude of the Act cannot be, curtailed by
the provisions contained in the Rules. Shri Rao has also
urged that the matters dealt with in the Act do not relate
to co-ordination and determination of standards in in-
stitutions for higher education for research
201
and scientific and technical institutions and, therefore,
the Act cannot be said to be law in respect of matters
failing under Entry 66 of List I and that it relates to mat-
ters failing under Entry 25 of List III.
19.We will first deal with the contention urged by Shri Rao
based on the provisions of the Act and the Rules. It is
nodoubt true that in view of clause (3) of Section 1 the Act
applies to all private colleges. The expression "college"
is, however, not defined in the Act. The expression
"’private college" is defined in Clause (8) of Section 2
which can, in the absence of any indication of a contrary
intention, cover all colleges including professional and
technical colleges. An indication about such an intention
is, however, given in Rules wherein the expression "college"
has been defined in Rule 2(b) to mean and include Arts and
Science College, Teachers Training College, Physical
Education College, Oriental College, School of Institute of
Social Work and Music College. While enumerating the
various types of colleges in Rule 2(b) the Rule making au-
thority has deliberately reframed from including
professional and technical colleges in the said definition.
It has been urged that in Rule 2(b) the expression "means
and includes" has been used which indicates that the
definition is inclusive in nature and also covers categories
which are not expressly mentioned therein. We are unable to
agree. A particular expression is often defined by the
Legislature by using the word ’means’ or the word ’in-
cludes’. Sometimes the words ’means and includes’ are used.
The use of the word’ ’ indicate that "definition is a hard-
and-fast definition. and no other meaning can be assigned
to the expression that is put down in definition." [See
Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court,(1990 (3) SCC 682, at p. 717]. The word ’includes’
when used, enlarges the meaning of the expression defined so
as to comprehend not only such things as they signify
according to their natural import but also those things
which the clause declares that they shall include. The
words ’means and includes’, on the other hand, indicate "an
exhaustive explanation of the meaning which, for the
purposes of the Act, must invariably be attached to these
words or expressions."’ [See : Dilworth v Commissioner of
Stamps, (1899 AC 99 at pp. 105-106 (Lord Watson);1
Mahalakshmi Oil Mills v. State of Andhra Pradesh, (1989) 1
SCC 164, at p. 169]. The use of words ’means and includes’
in Rule 2(b) would, therefore, suggest that the definition
of "college" is intended to be exhaustive and not extensive
and would cover only the educational institutions failing in
the categories specified in Rule 2(b) and other educational
institutions arc not comprehended. In so far as engineering
colleges am con there exclusion may be for the reason that
the opening and running of the private engineering colleges
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are controlled through the Board of Technical Education and
Training and the Director of Technical Education in
accordance with the directions issued by the AICTE from time
to time. As noticed earlier the Grant-in-Aid Code contains
provisions which, in many respects, cover the same field as
is covered by the Act and the Rules. The Director of
Technical Education has been entrusted with the functions of
proper implementation of those provisions. There is nothing
to show that the said arrangement was not working
satisfactorily so as to be
202
replaced by the system sought to be introduced by the Act
and the Rules. Rule 2(d), on the other hand, gives an
indication that there was no intention to disturb the
existing arrangement regarding private engineering colleges
because in that Rule the expression ’Director" is defined
top mean the Director of Collegiate Education The Director
of Technical Education is not included in the said
definition indicating that the institutions which are under
the control of Directorate of College Education only are to
be covered by the Act and the Rules and technical
educational institutions in the State of Tamil Nadu which am
controlled by the Director of Technical Education arc not so
covered.
20. The Rules have been made in exercise of the power
conferred by Section 53 of the Act. Under Section 54(2) of
the Act every rule made under the Act is required to be
placed on the table of both Houses of the Legislature as
soon as possible after it is made. It is accepted principle
of statutory construction that "rules made under a statute
arc a legitimate aid to construction of the statute as
Contemporanea Expositio " [See : Craies on Statute Law, 7th
Edition pp. 157-158; Tata Engineering and Locomotive
Company Ltd. v. Gram Panchayat Pimpri Waghere. 1977 (1) SCR
306, at p. 317]. Rule 2(b) and Rule 2(d) defining the
expression "College" and "Director" can, therefore, be taken
into consideration as contemporanea exposition for
construing the expression "private college" in Section 2(8)
of the Act. Moreover, the Act and the Rules form part of a
composite scheme. Many of the provisions of the Act can be
put into operation only after the relevant provisions or
form is prescribed in the Rules. In the absence of the
Rules the Act cannot be enforced. If it is held that Rules
do not apply to technical educational institutions the pro-
visions of the Act cannot be enforced in respect of such
institutions. There is, therefore, no escape from the
conclusion that professional and technical educational in-
stitutions are excluded from the ambit of the Act and the
High Court has rightly taken the said view. Since we agree
with the view of the High Court that professional and
technical educational institutions are not covered by the
Act and the Rules, we do not consider it necessary to to
into the question whether the provisions of the Act fall
within the ambit of Entry 25 of List III and do not relate
to Entry 66 of List I.
21. Shri Sitaramaiah, the learned senior counsel appearing
for the appellant in Civil Appeal No. 10002 of 1983, has
urged that ,Rule 11 which relates to conditions of service,
etc., of teachers and other persons in college is referable
to Section 17 of the Act and there is nothing in Section 17
and Rule 11 to indicate that they are confined in their
application to colleges other than technical educational
institutions and that there is no reason why the conditions
of service of teachers in technical education institutions
should not be governed by Rule 11. We find no substance in
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this contention. Once it is found that on a proper
construction the Act and the Rules do no apply to
professional and technical educational institutions then
none of the provisions of the Rules, including Rule 11, can
be said to apply to professional and technical educational
institutions and it is not Possible to say that some of the
provisions of the Rules we applicable while others do not
apply to such institutions.
22.For the reasons aforementioned we
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do not find any merit in these appeals and the same are
accordingly dismissed. No order as to costs.
204