TMI Blog2007 (5) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... tered as W.P. (C) No. 2446 of 2007. which was filed by the Orissa Management Colleges Association. That is an Association of 22 Private Unaided Professional Educational Institutions claiming to impart education in management studies and the said Association is registered under the Societies Registration Act, 1860. The writ petitioner in W.P. (C) No. 3203 of 2007 is Kanakmajnari Trust, a Trust established to impart education in Pharmacy through its Private Unaided Educational Institution, which is in existence since 1982. The petitioner in W.P. (C) No. 4073 of 2007 is also a registered Association under the Societies Registration Act, 1860 and is an Association of Private Unaided Engineering Colleges of Orissa and is engaged in imparting education in different courses in the subject of Engineering and Management. The petitioner in W.P. (C) No. 3689 of 2007 is an Association of Private Unaided Medical and Dental Colleges in Orissa claiming to impart education from the academic session 2006-07 to the Medical students and claiming to impart education to Dental students from 2005-2006. Since in all the writ petitions, the point of law is the same and the questions of fact are almost ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners argued this in the alternative. 7. But the maid argument of the petitioners in other three writ petitions is that the area of education with which the petitioners herein are concerned is higher and technical education. Entry 66, List I of the Seventh Schedule of the Constitution of India enables the Parliament to legislate in that field. In so far as the State Legislature is. concerned, it has no competence to legislate in this area under the State List. Previously Entry 11 of the State List (List II) provided for legislation in this area. But the said Entry has been deleted with effect from 3-1-77 by 42nd amendment to the Constitution and now the State's legislative power in this area is to be derived from Entry 25 of the Concurrent List as amended by the 42nd Amendment of the Constitution. The said Entry 25 of the Concurrent List has been made expressly subject to the provision of Entry 66 of List I of the Seventh Schedule. 8. It has been argued that this being the constitutional dispensation, the State does not have legislative competence to legislate in an area where there is a pre-existing of Central Law and Regulations framed thereunder governing the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution has been defined to mean professional educational institution which is not established and managed by Government, Union Government or Government of any other State. Professional Educational Institution has been defined under Section 2(u) to mean college or school or an institute, by whatever name called, imparting professional education or conducting professional educational course leading to the award of a degree, diploma or a certificate by whatever name called, and in several Sub-clauses various disciplines have been mentioned. The petitioners are coming within those disciplines mentioned under Section 2(u). Qualifying examination has been defined to mean examination as may be determined by the Policy Planning Body as qualifying for the purpose of appearing in JEE. Under Section 2(z), single window system has been defined to mean the centralized system for admission administered by the Policy Planning Body. Section 3 makes it very clear that the admission of students in all private professional educational institutions, Government institutions and sponsored institutions to all seats including lateral entry seats, shall be made through JEE conducted by the Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any private professional educational institution. Under Sub-section (10) of Section 4 the said Body has been authorized to declare, apart from the power of imposition of fine, that admission made in respect of any or all seats in a particular professional educational institution to be invalid and recommend to the University or Statutory Body concerned for withdrawal of affiliation or recognition, as the case may be, of such institution. Under Sub-section (11) of Section 4 the said Body has been given the power to regulate its own procedure in all matters relating to discharge of its functions and has been authorized for the purpose of making any inquiry under the said Act with some of the powers of a Civil Court and under Sub-section (12) any proceeding before the said Body shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and Section 196 of the Indian Penal Code. 14. Sub-section (1) Section 5 of the said Act prohibits collection of capitation fee from any candidate by any professional educational institution or by any person who is in charge of the management of the institution. Sub-section (2) of Section 5 provides that if the said Body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be notified for the said purpose. Of course minority institutions have been exempted from following the reservation policy of the Government. Under Section 11 it is made clear that any admission made in violation of the provisions of the Act or the Rules made thereunder shall be invalid. Under Sub-section (1) of Section 15 it has been made clear that whoever contravenes the provisions of the Act or the rules made thereunder shall, on conviction be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to rupees ten lakhs. The Rule-making power of the Government is provided under Section 17. But, this Court has not yet been informed whether the Rules have been made or not. This is substantially the structure of the said Act which is being challenged in these writ petitions. 15. The learned Counsel for all the petitioners submitted that such provisions have been made in the State Law when there are already existing Central Law under which the petitioners are governed. Reference in this connection was made to the All India Council for Technical Education Act, 1987 which was enacted by the Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October 15. 2003 and in exercise of the powers conferred under Section 10(b) and 10(o) of AICTE Act, 1987 (52 of 1987), the All India Council For Technical Education (AICTE) hereby makes the following guidelines on Common Entrance Test(s) for admission to Engineering, Architecture/Planning and Pharmacy Programmes in the country. 17. It is clear from the aforesaid preamble that under the Guidelines issued by AICTE the Common Entrance Test was allowed. The said guidelines have also allowed the students to take their own Common Entrance Test and the said Guidelines also provide for All India basis Common Entrance Test. 18. Learned Counsel for the petitioners submit that under the said Act the Common Entrance Test has been abolished even though the said Test is permissible under the Central law. The said Act thus seeks to encroach upon the area which is already occupied by the Central Law. In fact, acting under the said Ordinance the Government of Orissa in the Finance Department has already issued an order dated 15th March, 2007 for the academic session 2007-08. 19. In W.P. (C) No. 2446 of 2007, it has been contended that the colleges and the institutions which are registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also annexed the admit cards for such Common Entrance Test which was held in 2006 and the application form for such test which was held in 2006. 22. So far as the M. Pharma application form of 2007 is concerned, the admission form has also been annexed. The petitioner has also annexed a notification dated 14-9-2006 which was issued by All India Council for Technical Education in exercise of power conferred under Sub-section (1) of Section 23 read with Section 10(b)(g)(i)(k)(p) and (v) and Section 11 of the AICTE Act making certain Regulations. Under Clause (b) of the said notification it is provided that 'technical institution' means the institution of Government, Government Aided and Private (Self-Financing) Institutions conducting the Courses/Programmes in the field of technical education, training and research in Engineering, Technology including MCA, Architecture, Town Planning, Management, Pharmacy, Hotel Management etc. In Clause 2.5(4) it has been provided that no admission authority/body institution shall permit admission of students to a course/ programme of technical institution not approved by AICTE. 23. The learned Counsel for the petitioners submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azette and under Section 20(1)(g) the said Council has the authority to make regulation for prescribing the standard curricula for training and the conditions for admission to course of such training. 26. Similarly under Medical Council Act, 1956, the Medical Council has been established under Section 3 of the said Act. The said Council has the power to frame regulation under Section 33 and under Section 33(1) the said Council has been empowered to make regulation for the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations. 27. It is therefore clear that bye-laws made by the Central Government such as the Dentists Act, Medical Council Act, All India Council for Technical Education Act, Pharmacy Act, the field of Higher and Technical Education has been occupied by the Central Laws. Under such Central Legislations, the maintenance of standard of such higher education is governed by regulations made by several Councils which are authorised to do so under the said Act namely, Dental Council created under the Dentists Act, 1948, Medical Council created under the Medical Council Act, 1956, All India Council for Tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are set out hereinbelow Entry 66, List I runs as follows: 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Previously the State by virtue of Entry 11 was empowered to legislate in the field of higher education. Entry 11, List II as it existed prior to its deletion with effect from 3-1-1977 by 42nd Amendment to the Constitution was as follows: Education including Universities subject to the provisions of entries 63, 64, 65 and 66 of List I and 25 of List III. 31. After the deletion of the aforesaid Entry by 42nd Amendment, the State's power to legislate in the field of higher education is contained only in the Concurrent List. Entry 25, List III as amended by the 42nd Amendment is set out below: Education, including technical education, medical education and Universities subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. 32. When an Entry either in the State List or in the Concurrent List is made 'subject to', an Entry in the Union List, the question of construing such an Entry fell for consideration b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not available. Even when such power was available prior to 42nd Amendment, Supreme Court held that the power under Item 11 of List II and Item 66 of List I must be harmoniously construed as the power under two Entries may overlap, but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. (See paragraph 23, page 715). 36. In R. Chitralekha v. State of Mysore reported in [1964]6SCR368 , the validity of the order made by the Government of Mysore in respect of admission to Engineering and Medical Colleges in the then State of Mysore was in issue. In the then State of Mysore most of the Engineering and Medical Colleges were Government Colleges and few of them were Government aided colleges. The State Government appointed a Common Selection Committee for conducting admissions to the Engineering Colleges and another common selection committee for conducting admissions to Medical Colleges. In the matter of admission to those colleges the Government issued several directions. One of the contentions in that case was that the Government had no power to appoint the Common Selection Committee for admitting s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the case of State of Orissa v. M.A. Tulloch and Co. reported in [1964]4SCR461 , the Supreme Court laid down the test of repugnancy between the two enactments. In that case also, Entry 54, List I of the 7th Schedule and Entry 23, List II of the said Schedule came up for consideration and the principle laid down in Hingir-Rampur Coal Co. [1961]2SCR537 was reiterated. The learned Judges in paragraph 15 held that the question of repugnancy arises when two enactments within the competence of two Legislatures collide. Where the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then in the extent of the repugnancy the one supersedes the other. But the Supreme Court has expanded the concept to the extent that the two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The Supreme Court further explained by saying that existence of contradictory provisions is not the only test of repugnancy. According to the Supreme Court, the real test is if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council for Technical Education Act, 1987 falls within Entry 66, List I and Entry 25, List III of the 7th Schedule. It was, therefore, held that on the subjects covered by the All India Council for Technical Education Act, the State cannot make a law either under Entry 11 of List II, which is prior to the 42nd Amendment to the Constitution nor can it make a law under Entry 25 of List III which has come into existence after the 42nd Amendment to the Constitution. In paragraph 22 of the said judgment, it has been held that the Central Act, namely, All India Council for Technical Education Act obviously has been enacted for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. In the said paragraph it has been held That the Council is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to de-recognize the institutions where norms and standards laid down by it and directions given by it from time to time are not followed . It was made clear towards the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICTE Regulations. 44. In this connection the AICTE Regulations of 2006 on which reliance has been placed by the learned Counsel for the Central Government is relevant. The notification on which the learned Counsel for the Central Government placed reliance is dated 14th September, 2006 issued in exercise of power conferred by Sub-section (1) of Section 23 read with Section 10(b)(g)(i)(k)(p) and (v) of Section 10 and Section 11 of the AICTE Act. Under Regulation 2.5(4) of the said Regulation it is provided that no admission authority/body/institution shall permit admission of students to a course/programme of Technical Institutions not approved by AICTE. In the instant case, admission authority which has been allegedly created under the said Act is purporting to admit students in a manner which is not approved by the AICTE and as such there is a clear encroachment by the said Act upon the areas covered by the Central Law. 45. In the case of Islamic Academy of Education v. State of Karnataka reported in AIR2003SC3724 , the Supreme Court has held that some time under the Central Act the State Government has been delegated with the power to determine fee structure in respect of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 19(1)(g) of the Constitution in view of decisions in TMA Pai's Case. 47. In TMA Pai's case, it has been held in paragraphs 38 to 45 at pages 540-42 of the report that the scheme in Unni Krishnan's case has the effect of nationalizing education. By framing the scheme in Unni Krishnan, the right of private unaided institutions to give admission and fix a fee was curtailed and as a result whereof private institutions became indistinguishable from Government institutions. Such scheme was held to be not valid and was overruled in paragraph 45, pages 541-42 of the report. But the same thing is sought to be introduced under the said Act. After overruling the scheme in Unni Krishnan's case, in TMA Pai the Supreme Court came to hold that the right to establish and administer private educational institutions contains the following rights, namely, (a) to admit students, (b) to set up a reasonable fee structure, apart from other rights (see para 50). In para 54 of the said judgment it has been held that the right to establish an educational institution can be regulated, but such regulatory measures can be exercised to ensure maintenance of proper academic standards, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in exercise of its power under Entry 66, List I was even remotely in issue. In P.A. Inamdar, in paragraph 155 of the said judgment there are observations to the effect that it is for the Central Government or the State Government in the absence of the Central Legislation to come out with a detailed well thought out legislation on the subject. Such legislation is long awaited. The States must act towards this direction. It is not in dispute that till such a legislation is made, the Committees are appointed by the Supreme Court to look after the admission procedure and fee structure in such private unaided institutions. We shall advert to those Committees later, But the learned Counsel for the State has submitted that they have got authority to legislate in view of the aforesaid observations of the Supreme Court in P.A. Inamdar and also in view of the provision of Clause (5) of Article 15 of the Constitution. The expression 'State' under Clause (5) of Article 15 of the Constitution includes the Parliament. In any event the State Government's competence to legislate cannot be conferred by Article 15(5) of the Constitution. That is dealt with under Part XI, Chapter I of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India, reported in [1971]3SCR9 . In paragraph 138, at page 578 of the report, the learned Judges held as follows: ...It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. 51. Therefore, observations in paragraph 155 in P.A. Inamdar AIR2005SC3226 which cannot be interpreted to have clothed the State with the legislative competence under Entry 25, List III of the 7th Schedule of the Constitution. This is more so when dealing specifically with such questions the Supreme Court has consistently taken a totally different view which has been discussed above. 52. It is well settled that a judgment is an authority for what it actually decides. The classic doctrine on this aspects enunciated by Earl of Halsbury LC in Quinn v. Leathern 1901 AC 495 has been quoted with approval by the Supreme Court in the case of State of Orissa v. Sudhansu Sekhar Mishra, reported in (1970)ILLJ662SC as follows: ...a case is only an authority for what it actually decides. I entirely deny that it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2006)IILLJ93SC , the Hon'ble Apex Court again reiterated the aforesaid principles in paragraphs 24 and 25 (para 755 of SCC). Following the aforesaid principles, it is fallacious to urge that para 155 in the case of Inamdar can clothe the State Government with competence to legislate in a field which is occupied by the Central Law under the provisions of Entry 66, List I of the 7th Schedule. 56. Learned Counsel for the State has relied on the decision in the case of Dr. Preeti Srivastava v. State of M.P. reported in AIR1999SC2894 to justify State's legislative competence under Entry No. 25, List III of the 7th Schedule to enact the said Act. The said judgment was delivered by Constitutional Bench of the Supreme Court. The views of Justice Majmudar was in the minority and learned Counsel for the State was placing reliance on the minority opinion of Justice Majmudar. In that judgment, the majority view was delivered by Justice Sujata V. Manohar and the learned Judge was pleased to observe as follows (Para 35 of AIR): ...A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and Technology and evaluation of marks was done by Ravenshaw College which is a Deemed University and subsequently the counselling was done by the Utkal University, which is a Central Counselling Authority. So it cannot be said that the admission procedure was not transparent nor can it be said that the procedure was exploitative. 59. In so far as the Fee Structure of the petitioners institutions was concerned, the same was also controlled by the Judges Committee. There is no allegation by the State before us either in its affidavit or in the course of submission that any of the institutions was taking Capitation Fee. No evidence to that effect was brought to our notice. It is no doubt true that such a Judges Committee was formed in view of the direction given by the Hon'ble Supreme Court in Inamdar's case of those two Committees, the Fee Structure Committee was not properly functioning in view of the fact that an order passed by the Fee Structure Committee was set aside by a Division Bench of this Court. But it cannot be disputed that in 2006, both admission and the determination of fee structure were done under the supervision of the Judges Committee. The Fee Struct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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