TMI Blog1995 (3) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... of certain conditions. The first respondent, viz., Adhiyaman Educational Research Institute [for short, the Trust'] applied to the Government of Tamil Nadu for permission to start a new self-financing private Engineering College in terms of the said policy. The Government granted the permission to the Trust to start a private Engineering College under the name and style of Adhiyaman College of Engineering at Hosur in Dharmapuri district beginning with the academic year 1987-88 by its order of 9th June, 1987. The permission was to offer three degree courses with the intake of 180 students per year, i.e., sixty students in each course in the subjects of [a] Mechanical Engineering, [b] Electronics and Communication Engineering and [c] Computer Science and Engineering. One of the conditions imposed by the Government was that the Trust could admit candidates of its choice upto 50 per cent of the approved intake under the management quota, and the remaining 50 per cent of the seats would be allotted by the Director of Technical Education from among the candidates of the approved list prepared for admission to Government and Government-aided Engineering Colleges. The Government had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions imposed by the University while granting affiliation. On receipt of this report, the Director of Technical Education issued a show cause notice on 16th July 1989 and asked for an explanation within fifteen days as to why the permission granted by the Government to start the College should not be withdrawn. 5.In the meanwhile, in May 1989, the University appointed a three-member Inspection Commission to inspect the func- tioning of the College for the purposes of considering the question of continuance of the affiliation of the College for the academic year 1989-90. Even before the receipt of the report of the Inspection Commission, the Syndicate of the University accepted the report of the High Power Committee appointed by the Government and resolved to reject the request for provisional affiliation for the academic year 1989-90 and also to issue a show cause notice to the Trust as to why the affiliation granted to it for the academic years, 198788 and 1988-89 should not be cancelled. Pursuant to this resolution, the University on 25th July, 1989, issued a notice to the Trust to show cause as to why the Statute 44[A] of Chapter XXVI of Vol.1 of die Madras University C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the State Government was to refer the matter to the All India Council of Technical Education [for short 'Council']. According to him, under the Central Act, the duty was imposed on the Council for recognising or derecognising any technical institution in the country and it was not open to the State Government or the University to give approval or disapproval to any technical institution. According to the learned Judge, further, if after the coming into operation of the Central Act, each State Government and University was allowed to recognise or derecognise the technical institutions, each of them would follow different yardsticks which will be against the object of the Central Act. However, he held that the University could take action under Statute 44 [A] in Chapter XXVI of Vol. 1 of the Calendar of the University on the ground that one of the conditions imposed by it for grant of affiliation, -viz., that the Trust should obtain concurrence of the Council for the College was not fulfilled and consequently he field that the resolution passed by the University Syndicate was valid. 7.Aggrieved by this decision, the Trust, the State Government as well as the Univer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic and technical institutions. 10.This Entry has remained unchanged since the inception of the Constitution. Before the Constitution [Forty Second Amendment] Act, 1976 which came into force w.e.f. 3rd January, 1977, Entry 11in List 11, i.e., the State List was as follows: Education including Universities subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List 111 11. Entry 63 of List I relates to the Benares Hindu University, the Aligarh Muslim University and the Delhi University; the University established in pursuance of Article 371-E, i.e, Central University in Andhra Pradesh, and other institutions declared by Parliament by law to be an institution of national importance. Entry 64 of the said List refers to institutions for scientific or technical education financed by the Government of India wholly or in part and declared by the Parliament by law to be institutions of national importance and Entry 65 relates to the Union agencies and institutions for [a] professional, vocational or technical training, including the training of police officers; or [b] the promotion of special studies or research; or [c] scientific or technical ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 246 states the obvious, viz. that Parliament has exclusive power to make law.-, with respect to any of the matters enumerated in List I and has also the power to make laws with respect to any of the matters enumerated in List 111, the State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II subject, of course, to the Parliament's power to make laws on matters enumerated in List I and List III. Parliament has also power to make laws on matters enumerated in List II for any part of the territory of India not included in a State. Article 248 vests the Parliament with the exclusive power to make any law not enumerated in the Concurrent List or the State List including the power of making any law imposing a tax not mentioned in those Lists. This is a residuary power of legislation conferred on the Parliament and is specifically covered by Entry 97 of list 1. In case of repugnancy in the legislations made by the Parliament and The State Legislatures which arises in the case of Legislations on a subject in List ill, the law made by the Parliament whether passed before or after the law passed by the State Legislature shall prevail a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo laws made on the subjects in the Concurrent List, the aforesaid provision of Article 254 [1] was unnecessary. However, in view of the repugnancy resulting in implied repeal of the pre-Constitutional pro- vincial law by the post-Constitutional parliamentary law, this controversy need not detain us here. 19.In the light of the aforesaid Constitutional provisions, we may now cxamine the provisions of the Central Act and the two State enactments and the subordinate legislation made thereunder to find out whether there is encroachment by the said law on Entry 66 of List I or whether there is repugnancy between the Central Act and the State Acts. 20.The Preamble of the Central Act states that it has been enacted to provide for the establishment of an All India Council for Technical Education with a view to [i] proper planning and coordinated development of the technical education system throughout the country [ii] promotion of qualitative improvement of such education in relation to planned quantitative growth [iii] regulation and proper maintenance of norms and standards in the technical edu- cation system and [iv] for matters connected therewith [emphasis supplied]. Sections 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal bodies in the field of technical and management education and organisations in the field of industry and commerce, also has the repre- sentatives of the State in the form of the Members of Parliament and the Members to be appointed by the Central Government to represent the States and the Union Territories and also of the State Universities. Section 1 further empowers the Council to associate with itself any person whose assistance or advice it may desire in carrying out any of the provisions of the Act. 23.Chapter III of the Act enumerates the powers and functions of the Council. Section 10 of the said Chapter states that in order to perform its duties and to take all such steps as it may think necessary to ensure the object of and perform the functions under the Act, the Council may, among others, [b] coordinate the development of technical education in the country at all levels; xxxxxx [f] promote an effective link between tech- nical education system and other relevant systems including research and development organisations, industry and the community; [g] evolve suitable performance appraisal systems for technical institutions and Uni- versities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or to others bodies, regarding recognition or de- recognition of the institution or the programme; 24.Section 11 provides for inspection to be caused by the Council, of any department or departments of a technical institution or University for the purposes of ascertaining the financial needs of such institutions or a University or standards of teaching, examination and research. It also provides for inspection as well as for communicating the results of such inspection to such institution and University with a view to recommending to it the action to be taken as a result of such inspection. The executive authority of the institution or University is under an obligation to report to the Council , the action if any which is proposed to be taken by it for the purpose of implementing the recommendations made by the Council, pursuant to the result of the inspection made by it. Section 13 requires the Council to establish, among others, an All India Board of Technical Education and an All India Board of Under-graduate Studies in Engineering and Technology and Post-graduate Education and Research in Engineering and Technology. The Council is also empowered to establish such other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well-known, consists of regions and population which are at different lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26.We may now examine the provisions of the State law, viz., Tamil Nadu Private Colleges [Regulation] Act. Section 1 [3] makes the Act applicable to all private colleges. Reasons for the enactment circulated with the Bill of the Act stated that the State Government had decided to regulate the conditions of service of teachers employed in private colleges and to make the law relating to managing bodies and payment of grant to such colleges statutory. It was also proposed to make provisions to the effect that no private college shall be established without affiliation to a University, that the non-teaching staff of private colleges would also come within the scope of the measure and that the University may make regulations, statutes and ordinances specifying the qualifications for appointment of teachers and other persons employed in private colleges. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars in the application. Section 5 [3] prohibits the University from granting affiliation to any private college unless per- mission has been granted under Section 5 [1] of the Act. Section 8, however, permits a minority whether based on religion or language, to establish and administer any private college without permission under sub-section (1) of Section 5 read with Section 3. Section 10 [1] provides that the Government may pay to the private college grant at such rate and for such period as may be prescribed. Section 10 [2] entitles the Government to withhold permanently or for a specific period, whole or part of any grant paid under Section 10 [1] if the private college does not comply with any of the provisions of the Act or rules made thereunder or the directions issued in that behalf, or where the private college has not paid to teacher or other person employed in such college pay and allowances payable to him or which con- travenes or fails to comply with any conditions as may be prescribed, while granting permission to start the college. Section 11 makes it mandatory to have a college committee for the private college [not being a minority college which shall include th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the competent authority and without making such -Arrangements as may be prescribed for the continuance of the instruction of the students of such college or the class or course of instruction as the case may be for the period of study for which the students have been admitted. Section 28 prohibits private college from levying any fee or collecting any other charge or receiving any other payment except a fee charge or payment specified by the competent authority. Section 30 provides for the taking over of the management of a private college if the educational agency running such college had neglected to discharge any of the duties imposed on or to perform any of the functions entrusted to such agency. Section 34 provides for the accounts of every private college being audited at the end of every academic year by such authority as may be prescribed. Section 35 provides that the competent authority shall have the right to cause an inspection of or an inquiry in respect of, any private college, its building, laboratories, libraries, workshops and equipment, and also for the examinations, teachings and other work conducted or done by the private college. It also gives power to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s- [b]. 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 approved by, or affiliated to the University. It is not necessary to emphasise that the, expression means and includes used in the definition confines the definition to only those species of the genus which are specifically enumerated in the definition, and hence, the Act as it stands today, is not made applicable by the said Rules to the technical colleges including the engineering colleges with which we are concerned in the present case. In this context, reference may be made to the decision of this Court in Civil Appeal Nos.10001-03 of 1983 [P. Kasilingam Ors. v. P.S.G. College of Technology] pronounced today. it cannot, however, be denied that in view of the wide application of the Act by virtue of Section 1 [3] and the wide definition of private college contained in Section 2 [8] of the Act, it is capable of being made applicable at any time to the institutions imparting technical education by amending the Rules. 30. The provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void as has been rightly held by the High Court. 31. As regards the Madras University Act, 1923, which is the other State enactment, Section 2 [a] thereof defines Affiliated College to mean any college affiliated to the University established under the said Act and providing courses of study for admission to the examination for degrees of the university. Section 2 [aa] defines Approved College to mean any college approved by the university and providing courses of study for admission to the examinations for titles and diplomas and the pre-university examination of the University. Section 2[aaa] defines Autonomous College as any college designated as an autonomous college by statutes, i.e., the Statutes of the University. Section 2[aaaa] defines College to mean any college or any institution maintained or approved by or affiliated to the University and providing courses of study for admission to the examinations of the University. Section 2 [2] defines Post-Graduate College as a University college or an affiliated college providing post-graduate courses of study leading up-to-the post-graduate degrees of the University. Section 2 [gg] defines Professional College as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions of service, among others. Under Section 19 [jj] it has power to affiliate colleges to the University and to recognise colleges as approved colleges. Section 19 [1] gives power to the Syndicate to prescribe in con- sultation with the Academic Council qualifications of teachers in University colleges, affiliated and approved colleges. Section 19 [n] enables it to charge and collect such fees as may be prescribed and Section 19 [o] gives it power to conduct the University examinations and approve and publish the results thereof It can make Ordinances regarding the admission of students to the University or prescribing examinations to be recognised as equivalent to University examinations under Section 19. 32. The Senate and the Syndicate can make respectively statutes and ordinances to enforce the provisions of the Act. The Act' and the statutes and the ordinances made thereunder show that the University is given powers to prescribe terms and conditions for affiliation also of the technical colleges such as the engineering colleges and also the power to disaffiliate such colleges for non-fulfilment of the said conditions. It further gives power to the University ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal institutions as deemed universities, setting up of National Board of Accreditation to periodically conduct evaluation on the basis of guidelines and standards specified and to make recommendations to it or to the Council or the Commission or other bodies under the Act regarding recognition or derecognition of that institution or the programme conducted by it. Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the Engineering Colleges. As has been pointed out earlier, the Central Act has been enacted by the Parliament under Entry 66 of the List I to coordinate and determine the standards of technical institutions as well a.-. under Entry 25 of List 111. The provisions of the University Act regarding affiliation of technical colleges like the Engineering Colleges and the conditions for grant and continuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be properly repugnant unless there is a direct conflict between them, as when one says do and the other don't , them is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test there may well be cases of repugnancy where both laws say don't ' but in different ways. For example one law may say 'No person shall sell liquor by retail that is, in quantities if less than five gallons at a time and another law may say, No person shall sell liquor by MA that is, in quantities of less than ten gallons at a time. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second am; yet it is equally obvious that the two laws am repugnant, for to the extent to which a citizen is compelled to obey one of them the other, though not actually disobeyed, is nullified. This was the type of repugnancy that arose for consideration in (1996) AC 348. 36.For the same reasons the argument advanced by the learned counsel that there is no repugnancy or inconsistency between the minimum and the higher than mini- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are laid down under the Central Act. 38.In this connection, we may refer to certain authorities, In The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar and others [(1963) Supp. SCR 112], a Constitution Bench of this Court was called upon to decide whether the University was authorised under the Gujarat University Act, 1949 to prescribe Gujarathi or Hindi or both as exclusive medium or media of instruction or for examination and whether the legislation authorising the University to impose such media was constitutionally valid in view of Entry 66 of List 1, Seventh Schedule. This Court held as follows: ......... Power to legislate in respect of medium of instruction is, however, not a dis- tinct legislative head, it resides with the State Legislatures in which the power to legislate on education is vested, unless it is taken away by necessary intendment to the contray. Under items 63 to 65, the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the leg- islative head of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudicially affects co- ordination and determination of stands, but not upon the existence of sonic definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art 254 (1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. Counsel for the University submitted that the power conferred by item No.66 of List I is merely a power to co-ordinate and to determined standards i.e., it is a power merely to evaluate and fix standards of education, because, the expression coordination merely means evaluation, and determination means fixation. Parliament has therefore power to legislate only for th e purpose of evaluation and fixation of standards in institutions referred to in item 66. In the course of the argument however, it was some what reluctantly admitted that steps to remove disparities which have actually resulted from the adoption of a regional medium and the falling of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be included in that item and therefore excluded from itemii List II....... 39.In R. Chitralekha Anr. v. State of Mysore Ors. [(1964) 6 SCR 368] the majority of the Constitution Bench after referring to the Gujarat University v. Sri Krishna [supra] observed after quoting a part of the passage to which we have already made a reference above, as follows: This and similar other passages indicate that if the law made by the State by virtue of entry 11 of list II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the parliament under the entry Co-ordination and determination of standards in institution for higher education or research and scientific and technical institutions reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State legislature made a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations laying down the standards of proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical qualifications. The said Regulations lay down the criterion for selection of candidates for post- graduate training and one such criteria is that the students of post-graduate training should be selected strictly on merit judged on the basis of academic record in the under- graduate course. while inviting applications for admission to the various postgraduate courses in degree and diploma in different specialities, the State Government issued an order which was to the effect that no candidate would be eligible for admission to postgraduate degree or diploma courses who had obtained less than 55 per cent and 52 per cent marks respectively for the degree and diploma courses in merit. The unsuccessful candidates approached this Court under Article 32 making a grievance about the prescribed per- centage of marks and some approached this Court against the judgment of the Allahabad High Court by special leave pe- titions. He question that arose for consideration was about the competence of the State Government to prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fell within Entry 25 of list HI and not under Entry 66 of List 1. It was held that - 1.4 The Commissionerate Act has be= drawn by and large in the same terms as that of the U.G.C. Act. Both the enactments deal with the co-ordination and determination of excellence in the standards of teaching and examination in the universities. Here and there, some of the words and sentences used in the Commis- sionerate Act may be different from used in the UGC Act, but nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. 1.5. The High Court has gone on a tangent, and would not have fallen into an error if it had perused the UGC Act as a whole and compared it with the Commissionerate Act or vice.-versa. 1.6. The Commissionerate Act contains sweeping provisions encroaching on the autonomy of the Universities. The Commissionerate has practically taken over the academic programme and activities of the universities. The universities have been rendered irrelevant if not nonentities. 1.7 It is unthinkable as to how the State could pass a parallel enactment under Entry 25 of List III, unless it encroaches Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt what would make coordination either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. [ii] To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. [iii] If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause [2] of Article 254, the State leg- islation being repugnant to the Central legislation, the same would be inoperative. [iv] Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. [v] When there are mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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