1. The pivotal issue in this case is whether after the coming into force of the All India Council for Technical Education Act, 1987 (Act 52 of 1987), the State Government could withdraw the permission granted earlier to the Writ Petitioner to start a private Engineering College and the University of Madras could cancel or withhold affiliation to the college on the ground that the conditions imposed respectively by the State Government and the University for the grant have not been fulfilled. The other issues are only ancillary and answers thereto will depend on the answer to the above issue. For the sake of convenience, the parties are referred to by their rank in the writ petitions.
2. The writ petitioner is a registered Trust by name The Adhiyamman Educational and Research Institution. The petitioner applied to the Government of Tamil Nadu for permission to start a new self-financing private Engineering College without involving am financial commitment on the part of the Government. As a matter of policy, the Government in their G. O. Ms. No. 429. Education. Science and Technology Department, dated 17-4-1984 had permitted private managements to start new Engineering Colleges under the self-financing scheme without any financial commitment to the Government subject to the fulfilment of certain conditions. Pursuant to the policy decision, the Government granted permission to the writ petitioner to start a private Engineering College in the name and style of Adhiyaman College of Engineering, Hosur, Dharmapuri District, by G. O. Ms. No. 865, Education, Department, dated 9-6-1987. The permission was to start the College with effect from 1987-88. The permission was granted to offer three degree courses with the intake of 180 students per year (60 students in each course) in the following subjects :--
(a) Mechanical Engineering.
(b) Electronics and Communication Engineering.
(c) Computer Science and Engineering.
One of the conditions imposed by the Government was that the petitioner could admit candidates of its choice up to 50% of the approved intake of the college under management quota and the remaining 50% of the seats shall be allotted by the Director of Technical Education from among the approved list of candidates selected for admission to Government and Government aided Engineering Colleges. Apart from that, several other conditions were imposed and it is not necessary to set out the same herein. The Government stipulated that if the conditions were not fulfilled by the petitioner, the permission granted was liable to be withdrawn at any time and the Government will have the right to take over the Engineering College at any time with all its immovable and movable properties including endowment and cash balance without paying any compensation.
3. Based on the permission granted by the Government, the petitioner applied to the University for affiliation of the College to the University on 18-6-1987. After inspection of the College through a commission, the University granted by its letter dated 21-11-1987 temporary affiliation to the petitioner's college for the three courses referred to already from the academic year 1987-8S for a period of one year only subject to the fulfilment of the conditions set out in the letter. As many as 27 conditions were imposed by the University. It was made clear in the said letter that an application for affiliation for the Second Year B. C. Degree Courses should be made immediately for the academic year 1988-89. The petitioner was also informed by the same letter that an application for continuance of First Year B. E. Degree Course for the academic year 1988-89 should be forwarded to the University urgently and no admissions should be made to the I.B.E. Degree Course for the academic year 1988-89 until permission was granted by the University.
4. The College started functioning from July 1987. The Inspection Commission appointed by the University before the actual grant of temporary affiliation visited the College and submitted its report only on 5-11-1987 and recommended the grant of affiliation pursuant to which the University granted affiliation as aforesaid. On 17-9-1988, the University extended the affiliation for First Year B. E. Degree Course for the academic Year 1988-89 subject to implementation of the recommendations of the earlier commission and subject to usual conditions of affiliation already laid down in the letter dated 21-11-1987. The petitioner applied on 24-11-1988 for affiliation for Third Year B. E. Degree Course for the academic year 1989-90 and continuation of affiliation for First Year and Second Year B. E. Degree Courses. In March, 1989, a Committee appointed by the Director of Technical Education to inspect the College submitted a report which was forwarded to the petitioner with a direction to lake steps to create necessary infrastruc-tural facilities. The petitioner sent a reply informing the Director of the progress made in regard to the provision of necessary infrastructural facilities.
5. In the meanwhile, on 27-3-1989 the Government appointed a High Power Committee by G. -O. Ms. No. 350, Education Department, to visit the self-financing Engineering Colleges and make an assessment of their functioning. The High Power Committee submitted a report to the effect that the conditions imposed by the Government at the time of grant of permission and the conditions imposed by the University while granting affiliation had not been fulfilled by the petitioner. After the receipt of the report of the High Power Committee, the Director of Technical Education issued a show cause notice on 16-7-1989 to the petitioner calling for an explanation within 15 days as to why the permission granted by the Government on 9-6-1987 to start the College should not be withdrawn.
6. In the meanwhile, the University appointed a three member Inspection Commission in May 1989 and called for a report with regard to the functioning of the College for the purpose of considering the question of continuance of the affiliation for the academic year 1989-90. Even before any report was submitted by the said Commission, the Syndicate of the University accepted the report of the High Power Committee appointed by the Government referred to earlier, and resolved on the basis of the said report to reject the request for provisional affiliation for the year 1989-90 and also issue show cause notice for cancelling the affiliation granted for 1987-88 and for 1988-89. On 25-7-1989 the University issued a show cause notice to the petitioner as to the petitioner as to why Statute 44(A) of Chapter XXVI of Volume 1 of the Madras University Calendar shall not be invoked in respect of the provisional affiliation granted for the First Year for the aeademic year 1987-88 and for the first year for the academic year 1988-89 for the three courses specified therein. On 26-7-1989 the University sent a communication to the petitioner informing that the Syndicate had accepted the report of the High Power Committee appointed by the Government and resolved to reject the request of the petitioner for provisional affiliation for 1989-90 for the first year and also the request for provisional for second and third year courses for 1989-90. The communication also referred to a resolution that alternative arrangement be made to distribute the students already admitted in 1987-88 and 1988-89 to other institutions with adequate facilities.
7. The petitioner filed W. P. No. 10222 of 1989 for issue of writ of prohibition prohibiting the Director of Technical Education from taking any further proceedings in pursuance of his letter dated 16-7-1989 referred to already. The petitioner also filed W. P. No. 10223 of 1989 for issue of writ of certiorafiried mandamus to call for records of the University quash the resolutions passed by the Syndicate and direct the respondents to grant provisional affiliation to the petitioner. In both the writ petitions, the State of Tamil Nadu represented by the Special Commissioner and Secretary to Government, Education Department, the Director of Technical Education, Madras and the University of Madras were made respondents. Subsequently, the petitioner filed W. M. P. 15083 of 1989 for impleading the Union of India, represented by Secretary to Government, Ministry of Human Resources Development, Department of Education, New Delhi and the All India Council for Technical Education as respondents 4 and 5. The application for impleading respondents 4 and 5 was ordered. While the writ petitions were pending, the learned single Judge appointed a Committee to inspect the College and make a report as to whether the deficiencies pointed out by the Government and the University had been rectified. The High Court Committee submitted a report that the petitioner had not even provided the infrastructural facilities for conducting the different Engineering Courses.
8. By a common judgment dated 6-10-1989, Bakthavatsalam, J. allowed W. P. No. 10222 of 1989 and dismissed W. P. No. 10223 of 1989. The learned Judge held that after the passing of the All India Council for Technical Education Act, 1987 (Act 52 of 1987), hereinafter referred to as 'the Central Act' the State Government had no power to cancel the permission granted to the petitioner to start a private Engineering College and that it could not rely upon a report of the High Power Committee as the appointment of the Committee was itself illegal and unconstitutional. It is observed by the learned Judge that the only course open to fhe State Government is to refer the matter to the All India Council for Technical Education and ask them to follow the provisions of the Central Act. The finding of the learned Judge on the crucial question of law was expressed in the following terms :
".....In my view, after the Central Act 52 of 1987 came into force, the duly is imposed only on the AICTF for recognising or derecognising any technical institution in the country and it is not open to the State Government or the University to give approval or disapproval to any technical Institution. If it is allowed, in my view, each University will be following different yardsticks and each State Government will have its own yardstick in deciding the suitability of any technical institution for being approved and this will be against the object and very purpose of the Act 52 of 1987 and it will defeat the object and very purpose of the Act".
However, the learned Judge look the view that the University could take action under Statute 44(A) in Chapter XXVI of Volume 1 of the Calendar of the University of Madras on the ground that one of the conditions imposed by the University for grant of affiliation viz., the petitioner should obtain the concurrence of the A.I.C.T.E., New Delhi for the College was not fulfilled and consequently, the resolutions passed by the University were valid.
9. Aggrieved by the dismissal of the writ petition against the University viz. W.P. No. 10223 of 1989, the petitioner has preferred W.A. No. 793 of 1989. The State Government has preferred W.A. No. 797 of 1989 challenging the issue of writ in W.P. No. 10222 of 1989 while the University has preferred W.A. No. 821 of 1989 against the finding of the learned Judge extracted above.
10. In view of the appeals by the three contesting parties, all the questions argued before the learned Judge were again argued before us with equal elaboration, if not more. The case attained a new dimension in the appellate stage by the grant of permission to some of the students of the college numbering about 59 to intervene in the writ appeal filed by the petitioner on the ground that no orders should be passed in the appeal without hearing them. Thus, we had to hear counsel for five parties, in the appeals.
11. Mr. K. K. Venugopal, senior counsel appearing for the petitioner submitted that the learned Judge having found rightly against the power of the University to give approval or disapproval to any technical institution, erred in upholding the resolutions passed by the Syndicate which were based only upon the report of the High Power Committee appointed by the Slate Government, when the appointment of the Committee was itself found to be illegal and unconstitutional. He made detailed submissions in support of the finding of the learned Judge that after the Central Act came into force, neither the Slate Government nor the University was entitled to give approval or disapproval to any technical institution. He submitted that Statute 44(A) could not be invoked in this case as the University was not entitled to impose such conditions for grant of affiliation as would have a bearing on coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. In other words, he contended that the University could if at all impose only such conditions which would not have any relevance to co-ordination and determination of standards in institution for higher education or research and scientific and technical institutions, as the only authority entitled to lay down norms and conditions with reference to the same is the All India Council for Technical Education constituted under the Central Act 52 of 1987. It was also his contention that the learned Judge was in error in thinking that the University had invoked Statute 44(A) on the ground that the petitioner had not obtained the concurrence of A.I.C.T.E. while the communication sent by the University did not any so, even though that was condition No. 18 in the letter dated 21-11-1987 whereby temporary affiliation was granted by the University in the first instance. Learned counsel also submitted that the said condition could not be invoked in the circumstances of the case for the following reasons :
l) The A.I.C.T.E., New Delhi, referred to in condition No. 18 was a non-statutory body which ceased to be in existence in March, 1988, when the Act came into force under which the statutory Council was constituted. It was not open to the University to insist upon that condition in July 1989 when the Council referred to in the condition had ceased to exist in March, 1988.
2) Condition No. 18 was never treated as an essential condition for grant of affiliation by the University. If that was so, the University would not have extended the affiliation for the academic Year 1988-89.
3) The said condition is not enforced against any other institution. It is common ground that no private Engineering College has obtained the concurrence of the A.I.C.T.E., New Delhi. .
4) The condition is an irrelevant one as evident from the fact that the Government had as late as 19-7-1989 requested Hindus-than College of Engineering, Padur, Chengalpattu District, to move the All India Council for Technical Education for early issue of its concurrence while the Government itself recommended the grant of such concurrence in spite of the fact that the said College did not fulfil the conditions imposed by the Government and the University as evident from the available records.
5) It is not open to a public authority to support its orders on grounds not found in the orders themselves. In this case, the communication of the University and the resolutions passed by the Syndicate as extracted in the communications, did not refer to breach of condition No. 18 as the ground for rejection of the application made by the petitioner for continuation of affiliation. It is not open to the University to urge before the Court that the decision taken by the Syndicate could be supported on grounds other than those found in the resolutions themselves.
On the basis of the above contentions, learned counsel for the petitioner submitted that the judgment of the learned Judge in so far as it is against the petitioner should be set aside and a writ should be issued against the University and prayed for by the petitioner. Learned counsel also submitted that till the All India Council for Technical Education constituted under the Central Act decides the issue, the petitioner should be allowed to continue the College and the directions issued by the learned Judge for transfer of students to other colleges should be set aside. Learned counsel also pointed out that the All India Council for Technical Education has filed an affidavit in this Court that on 11-10-1989, a Regional Expert Committee for all the technical institutions in Tamil Nadu has been appointed and the Committee has been directed to complete the visit of the five institutions which had approached this Court against the withdrawal of affiliation as well as Hindus-than College of Engineering, Padur, on a priority basis and report back to the Council within a period of one month in respect of these institutions. Learned counsel submitted that the University should not take any action independently but wait for the decision of the All India Council for Technical Education.
12. The Attorney General for India appeared on behalf of the All India Council for Technical Education and supported to a large extent the stand taken by Sri. K. K. Venugopal. Senior Counsel for the petitioner as regards the legal position after the Central Act came into force. He contended that the Madras University Act, 1923 and the Statutes and Regulations and Ordinances framed by the University by virtue of the powers conferred by the provisions of the Act would all cease to have effect with reference' to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions, on 25-3-1988 when the Central Act came into force. He submitted that the Madras University Act would only be a law in force within the meaning of Art. 372 of the Constitution of India and it stood altered or repealed or amended by the Parliament by the passing of the Central Act. He cited number of decisions of the Supreme Court to point out that in so far as the subject covered by Entry 66 of List I in the VII Schedule is concerned, the State Legislature has no competence or legislative power to deal with the subject. It was further submitted that the University had no power to withdraw the affiliation granted already on grounds which would fall under the heading "Coordination and Determination of Standards" and that the University could act only on the recommendation of the All India Council for Technical Education. It was also contended that the provisional affiliation, granted by the University was validly in force, when the Central Act came into force and it was only the All India Council for technical Education which could decide whether the affiliation could be withdrawn or whether the affiliation came to an end by sheer efflux of time. But, the learned Attorney General, however, admitted that it would be open to the University to reject the application for continuation of affiliation on grounds which would not be covered by the expression "Coordination and Determination of Standards", but it would he a matter for this Court to decide whether the particular ground relied on by the University falls outside the purview of the expression "Co-ordination and Determination of Standards". The learned Attorney General also supported the contention of the petitioner's counsel that in the present case, it is not open to the University to rely upon the non-fulfilment of condition No. 18 as it is not a ground mentioned in the resolutions passed by the Syndicate.
13. The Advocate General for the state appeared for the Government and the Director of Technical Education and contended that the Slate Government is entitled to impose such conditions as would be for the betterment of the standards which may be prescribed by the All India Council for Technical Education. According to him, unless there is a conflict between the conditions imposed by the State Government and the norms prescribed by the All India Council, the former are valid and constitutional. He submitted that in practice, the State Government has always been implementing the directions given from time to time by the non-statutory body of All India Council for technical Education all these years and the conditions imposed by the State Government prescribed only higher standards than those prescribed by the All India Council. He placed reliance upon the observations found in some of the judgments of the Supreme Court. It was also contended by him that the statutory Council for Technical Education constituted under the Central Act would have jurisdiction only over new Colleges which come into existence after the Act and not with reference to Colleges established before the Act came into force. According to him, the Stale Government is entitled to withdraw or cancel the permission granted earlier on the ground that the conditions imposed by the order granting permission were not complied with. It was also his contention that the Central Act had left open certain matters such as provisions for infrastructural facilities and those matters would fall within the jurisdiction of the State Government and it is open to the State Government to make provisions regarding the same.
14. Similar arguments were advanced on behalf of the University by Mr. Murugesan. He contended that the University was always entitled to prescribe higher standards and that power was not taken away by the Central Act. According to him, the petitioner not having complied with the prescribed requirements for affiliation of the University was not entitled to have the application for continuation of the Affiliation being considered.
15. On behalf of the students, Mr. Somayajee contended that whatever may be the legal position vis-a-vis the powers of the State Government and/or the University after the Central Act came into force, the interests of the innocent students should be protected by this Court. He read out in extenso the report of the High Power Committee appointed by the Government as well as the report of the High Court Committee appointed by the single Judge during the pendency of the writ petitions. He submitted that the reports placed the matter beyond doubt in pointing out that the necessary infrastructural facilities were not provided by the petitioner. According to him, the directions given by the learned single Judge that the Director of Technical Education to transfer the students to some other Colleges where there are infrastructural facilities for the students to continue their studies in a better atmosphere should be maintained irrespective of the view we take on the question of law which has arisen for consideration in this case. Learned counsel submitted the following four reasons in support of his plea :--
i) It is unsafe to allow the students to continue in the petitioner's College where there are no infrastruclural facilities.
ii) As on date, there is no affiliation of the College to the University and it is still a subject matter of litigation.
iii) The Government as well as the University are prepared to accommodate the students in their Colleges which have all the necessary infrastructural facilities.
iv) The College is not functioning from July 1989. Hence, he submitted that there is absolutely no justification for acceding to the request of the petitioner's counsel to permit the College to continue until the question of approval is decided by the All India Council for Technical Education.
16. We shall now consider the main issue as to the effect of Central Act 52 of 1987 on the powers of the State Government and the University. It is necessary to advert to the relevant provisions in the Constitution and set out the legal position before proceeding further. Under Art. 246(1) of the Constitution of India, Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule, which is also referred to as 'Union List'. Under that clause, there is a non obstante provision to the effect that the power of the Parliament is one notwithstanding anything in clauses (2) and (3). Under Cl. (2), Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in List III, known as Concurrent List. The power of the State Legislature is subject to cl. (1) of the Article. In other words, the power of Parliament under cl. (1) with respect to matters enumerated in List I, is overriding. If any matter could be brought under an entry in List I as well as under an entry in List III, in so far as the matter falls within an entry in List I, the power of Parliament is supreme and exclusive. To that extent, the power of the State Legislature is excluded. Under cl. (3) of the Article, the Legislature of any State has exclusive power to make laws with reference to matters enumerated in List II, known as State List. Again, the power of the State Legislature is made subject to the provisions contained in cls. (1) and (2). As in the case of an entry in List III, if any mailer falls within an entry in List III and an entry in List II, the power of Parliament will prevail over that of the State Legislature to the extent to which the matter is covered by the entry in List I.
17. Article 254 of the Constitution deals with cases of repugnancy between a law made by a Legislature of a State and a law made by Parliament. Under Cl. (1) of the Article, if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, the law made by Parliament, whether passed before or after the law of the Legislature of a State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the Slate shall be void to the extent of the repugnancy. The exception is provided in cl. (2), whereby a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List shall prevail in cases of repugnancy, if the !aw has been reserved for the consideration of the President and had received his assent. The proviso to cl. (2) enables Parliament to enact at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. It can be said that the first part of cl. (1) of Art. 254 of the Constitution refers to a case of a Parliamentary law with reference to a matter in List I and the law of a State Legislature with reference to a matter in List II, and the second part of cl. (1) of the Article refers to matters falling under the Concurrent List.
18. Art. 372 of the Constitution provides that notwithstanding the repealing of the enactments referred to in Art. 395, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature or other competent authority.
19. The Central Act 52 of 1987 falls within the Legislative head mentioned in Entry 66 of List I. The entry reads thus :--"Co-ordination and determination in standards in institutions for higher education or research and scientific and technical institutions." Entry 11 in List II before the amendment of the Constitution by the Constitution (Fortysecond Amendment) Act 1976 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 III". , Entry 25 of List III as it stood before the fortysecond Amendment of the Constitution read "Vocational and technical training of labour."
20. By the fortysecond Amendment of the Constitution in 1976, Entry 11 in List II was deleted and entry 25 in List III was amended to read as follows : "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". By virtue of the amendment, Entry 11 of List II and entry 25 of List III were fused together. Even after the amendment, the power of Parliament to legislate on matters covered by Entry 66 in List I is exclusive and with reference to those matters, the State Legislature has no competence to pass any legislation.
21. Before referring to the case taw on the subject, we may refer to a similar provision in List II which has been made subject to two Entries in List I. Entry 24 in List 2 covers industries subject to the provisions of Entries 7 and 52 of List I. Entry 7 of List I is as follows :-- "Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war". Entry 52 in List I reads, "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest", it can be seen that while Entry 24 in List II is very wide and generally applicable to all industries, it is subject to the provisions of Entries 7 and 52 of List I. Consequently, the Legislative power of the State Legislature with reference to industries covered by Entry 7 and Entry 52 in List I is taken away.
22. In Tika Ramji v. State of U.P., , a question arose whether the U.P. Sugarcane (Regulation of Supply and Purchase) Act (24 of 1953) was ultra vires of the State Legislature of Uttar Pradesh. The Court found on a comparison of the terms of U.F. Sugar Factories Control Act (1 of 1938) with those of the impugned Act that the latter merely confined itself to the regulation of the supply and purchase of sugarcane required for use in sugar factories and did not concern itself at all with the controlling or licencing the sugar factories, with the production or manufacture of sugar or with the trade and commerce in, and the production, supply and distribution of sugar. It was held that there was no question whatever of the State Act trenching upon the jurisdiction of the Centre in regard to sugar industry which was a controlled industry within Entry 52 of List I. In the course of the judgment, the Supreme Court elucidated the exact connotation of the term "repugnancy". It was observed -
"Repugnancy falls to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnaney does not arise. So far as our Constitution is concerned, repugnancy is dealt with in Art. 254 which provides : XX XX XX XX XX XX XX
We are concerned here with the repugnancy, if any, arising by reason of both Parliament and the State Legislature having operated in the same field in respect of a matter enumerated in the Concurrent List, i.e. foodstuffs comprised in Entry 33 of List 3 and we are, therefore, not called upon to express any opinion on the contoversy which was raised in regard to the exact scope and extent of Art. 254(1) in regard to "a law made by Parliament which Parliament is competent to enact", as to whether the legislative power of Parliament therein refers to List I, List 3 and the residuary power of legislation vested in Parliament under Art. 248 or is confined merely to the mailers enumerated in the Concurrent. List (Vide Bir Bikram Kisore v. Tafazzal Hussain, AIR 1942 Cal 587, contra, Per Sulaiman, J. in 1940 FCR 188 at p. 226 : AIR 1941 FC 47 at p.61."
The Court approved of the observation made by B. N. Ran J. in G. P. Stewart v. R. K. Roy Chaudhury AIR 1939 Cal 628 which read as follows :--
"It is sometimes said that two laws cannot be said to he properly repugnant unless there is a direct conflict between them, as when one says 'do' and the other 'don't,' there 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 eases of repugnancy here 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 of less than five gallons at a time' and another law may say, 'No person shall sell liquor by retail, 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 one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the 'other, though not actually disobeyed, is nullified"...................................
"The principle deducible from the English cases, as from the Candian cases, seems therefore to be the same as that enunciated by Isaacs, J. in the Australian 44 hour case (37 CLR 466 (M)), if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law".
23. It is thus made clear that for the purpose of repugnancy, a direct conflict between the two provisions is not necessary. It is sufficient that there are two parallel laws on the same subject and even if it is possible to obey both of them, the law of the State Legislature is nullified in the presence of the Union law.
24. A similar question arose in Hingir Rampur Coal Co. v. State of Orissa, . The Constitution Bench of the Supreme Court expounded the law thus :--
"(23). The next question which arises is, even if the cess is fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the control of the Union; and that takes us to Entry 54 on List I. This Entry "reads thus : "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest". The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. This petition is not in dispute.
(24) It is urged by Mr. Amin that the field covered by the impugned Act has already been covered by the Mines and Minerals (Regulation and Development) Act, 1948 (LIII of 1948) and he contends that in view of the declaration made by S. 2 of this Act the impugned Act is ultra vires. This Central Act was passed to provide for the regulation of mines and oil fields and for the development of minerals. It may be stated at this stage that by Act LXVII of 1957 which has been subsequently passed by Parliament, Act LIII of 1948 has now been limited only to oil fields. We are, however, concerned with the operation of the said Act in 1952, and at that time it applied to mines as well as oil fields. S. 2 of the Act contains a declaration as to the expediency and control by the Central Government. It reads thus : "It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided". It is common ground that at the relevant time this Act applied to coal mines. S. 4 of the Act provides that no mining lease shall be granted after the commencement of this Act otherwise than in accordance with the rules made under this Act. S. 5 empowers the Central Government to make rules by notification for regulating the grant of such leases in respect of any mineral or in any area. Ss. 4 and 5 thus purport to prescribe necessary conditions in accordance with which mining lease have to be executed. This part of the Act has no relevance to our present purpose. S. 6 of the Act, however, empowers the Central Government to make rules by notification in the official gazette for the conservation and development of minerals. S. 6(2) lays down several matters in respect of which rules can be framed by the Central Government. This power is, however, without prejudice to the generality of powers conferred on the Central Government by S. 6(1). Amongst the matters covered by S. 6(2) is the levy and collection of royalties, fees, or taxes in respect of minerals mines, quarries, excavated or collected. It is true that no rules have in fact been framed by the Central Government in regard to the levy and collection of any fees; but in our opinion, that would not make any difference. If it is held that this Act contains the declaration referred to in Entry 23 there would be no difficulty in holding that the declaration covers the field of conservation and development of minerals, and the said field is indistinguishable from the field covered by the impugned Act. What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the control of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject matter covered by the said declaration. In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that is required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the control of the Union. In such a case the test must be whether the legislative declaration covers the field or not. Judged by this test there can be no doubt that the field covered by the impugned Act is covered by the Central Act LIII of 1948".
Significantly, it was held that absence of rules framed by the Central Government in regard to levy and collection of fees did not make any difference.
25. In Gujarat University v. Shri Krishna, , a six
Judges Bench considered the question of validity of Statutes 207 and 209 framed by Senate of Gujarat University. While holding that the Senate had no power to prescribe Hindi as the exclusive medium of instruction, the law was stated thus :
".....By Item No. 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of "education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III". Item No. 63 of List I replaces with modification item No. 13 of List I to the Seventh Schedule of the Government of India Act, 1935. Power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University, and other institutions declared by Parliament by Laws to be an institution of national importance is thereby granted exclusively to Parliament. Item 64 invests the Parliament with power to legislate in respect of "institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament, by law, to be institutions of national importance". Item 65 vests in the Parliament power to legislate for "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 assistance in the investigation or detention of crime". By item 66 power is entrusted to Parliament to legislate on "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Item 25 of the concurrent List confers power upon the Union Parliament and the State Legislature to enact legislation with respect to "vocational and technical training of labour". It is manifest that the extensive power vested in the Provincial Legislatures to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in item 11 of List III. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression "subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In Hingir Rampur Coal Co. Ltd. v. State of Orissa, , this
court in considering the import of the expression "subject to" used in an entry in List II, in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in any entry in List II, the power is taken away from the State Legislature. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament. The plea raised by counsel for the University and for the State of Gujarat that legislation prescribing the medium or media in which instruction should be imparted in institutions of higher education and in other institutions always falls within item 11 of List II has no force. If it he assumed from the terms of item 11 of List II that power to legislate in respect of medium of instruction falls only within the competence of the State Legislature and never in the excluded field, even in respect of institutions mentioned in items 63 to 65, power to legislate on medium of instruction would rest with the State, whereas legislation in other respects for excluded subjects would fall within the com-pentence of the Union Parliament. Such an interpretation would lead to the somewhat starting result that even in respect of national institutions or Universities of national importance, power to legislate on the medium of instruction would vest in the Legislature of the States within which they are situate, even though the State Legislature would have no other power in respect of those institutions. Item 11 of List II and Item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap; but to the extent of over-lapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences technology and vocational training of labour. The power to legislate in respect of Primary or secondary education is exclusively vested in the States by Item No. II of List II, and power to legislate on medium of instruction in institutions of primary or secondary education must therefore rest with the State Legislatures. Power to legislate in respect of medium of instruction is, however, not a distinct 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 contrary. 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 legislative head of co-ordination and determination of standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by item 66 List I to be vested in the Union.
The State has the power to prescribe the syllabi and courses of study in the institution named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected to not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and, of course, to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure co-ordination and determination of standards, that is, to ensure maintenance or improvement of standards. The fact that the Union has not legislated, or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment. The validity of the State Legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudically affects co-ordination and determination of standards, but not upon the existence of some 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."
26. The above case has more relevance to the present case than the other decisions of the Supreme Court as it relates to Entry 66 in List I and Entry II in List II before the amendment of the Constitution in 1976.
27. In State of Orissa v. M. A. Tulloch and Co., ,
another Constitution Bench of the Supreme Court dealt with Entry 54 of List I and Entry 23 in List II. The question related to the validity of Orissa Mining Areas Development Fund Act (27 of 1952) after the passing of Mines and Minerals (Regulation and Development) Act (1957). Delivering the judgment on behalf of the Bench, Rajagopala Ayyangar, J. observed as follows :
"(15) But even if the matter was res integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intertion to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of S. 18(1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no supersession, of the State Act."
28. Similar pronouncement was made in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, . The following passages in the
judgment state the law succinctly :
"We fail to comprehend the basis for the submission put forward on behalf of the appellants that there is repugnancy between sub-s. (3) of S. 5 of the Act which is relatable to Entry 54 of List II of the Seventh Schedule and para 21 of the Control Order issued by the Central Government u/sub-s. (1) of S. 3 of the Essential Commodities Act relatable to Entry 33 of List III and therefore sub-s. (3) of S. 5 of the Act which is a law made by the Slate Legislature is void under Art. 254(1). The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements arc fulfilled that the Stale law will, to the extent of repugnancy become void. Art. 254(1) has not application to cases of repugnancy due to overlapping found between List II On the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non obstante clause in Art. 246(1) read with the opening words "subject to" in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression "a law made by Parliament which Parliament is competent to enact" in Art. 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with regard to subjects included in List III as well as "List I". But if Art. 254(1) is read as a whole, it will be seen that it is expressly made subject to Cl. (2) which makes reference to repugnancy in the Field of Concurrent List -- in other words, if Cl. (2) is to be the guide in the determination of scope of Cl. (1), the repugnancy between union and State law must be taken to refer only to the Concurrent field. Art. 254(1) speaks of a State law being repugnant to (a) a law made by Parliament, or (b) an existing law.
There was a controversy at one time as to whether the succeeding words "with respect to one of the matters enumerated in the concurrent List" govern both (a) and (b) or (b) alone. It is now settled that the words "with respect to" quality both the clauses in Art. 254(1) viz., a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e., with respect to one of the matters enumerated in the Concurrent List. Hence, Art. 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List and they occupy the same field."
29. In Osmania University Teachers Association v. Stale of A. P., , the question once again related to Entry 66 of List I and Entry 25 of List HI. While holding that A.P. Commissionerate of Higher Education Act (26 of 1986) is beyond the legislative competence of the State Legislature in view of the University Grants Commission Act (3 of 1956), the Court observed as follows :
"23. It will be seen that the Commissionerate has practically taken over the academic programmes and activities of the Universities. The Universities have been rendered irrelevant if not nonentities.
It is apparent from this discussion that the Commissionerate Act has been drawn by and large in the same terms as that of the U.G.C. Act. The Commissionerate Act, as we have earlier seen also contains some more provisions. Both the enactments, however, 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 Commissionerate Act may be different from those used in the U.G.C. Act, but nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established for the purpose of construction of statutes. The High Court appears to have gone on a tangent. The High Court would not have fallen into an error if it had perused the U.G.C. Act as a whole and compared it with the Commissionerate Act or vice versa.
24. In Prem Chand Jain v. R. K. Chhabra, this
court has held that the U.G.C. Act falls under entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under entry 25 of List III, unless it encroaches entry 66 of List I. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative."
30. Bearing the above principles in mind, we shall look into the provisions of Central Act 52 of 1987 and compare the same with the provisions of Madras University Act. Undoubtedly, the Central Act is one that falls within Entry 66 of the Union List. As seen from the Statement of Objects and Reasons, the Act has been brought into existence to provide statutory powers to the All India Council for Technical Education to ensure -
i) proper planning and co-ordinated development of the technical education system throughout the country;
ii) promotion of qualitative improvement of technical education in relation to planned quantitative growth, and
iii) regulation of the system and proper maintenance of norms and standards.
The same is reflected fully in the preamble to the Act. S. 3 of the Act provides for establishment of the All India Council for Technical Education. S. 8 of the Act enables the Council to appoint such number of Officers and employees as it may consider necessary in order to efficiently discharge its functions under the Act. S. 10 of the Act enjoins a duty on the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. The council is empowered inter alia to co-ordinate the development of technical education in the country at all levels; allocate and disburse out of the Fund of the Council such grant on such terms and conditions as it may think fit to technical institutions and Universities imparting technical education in co-ordination with University Grants Commissions evolve suitable performance appraisal systems for technical education, incorporating norms and mechanisms for enforcing accountability; lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned; take all necessary steps to prevent commercialisation of technical education; provide guidelines for admission of students to technical institutions and Universities imparting technical education; inspect or cause to inspect any technical institution and set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the council, or to the University Grants Commission or to other bodies, regarding recognition or de-recognition of the institution or the programme. U/S. 11 of the Act, the Council may cause an inspection of any department or departments of technical institution or University to be made in such manner as may be prescribed and by such person or persons as it may direct for the purpose of ascertaining the financial needs of technical institution or a University of its standards of teaching, examination and research. It is not necessary to refer to the other provisions of the Act, Suffice it to point out that the Act falls squarely within the Legislative Head "Coordination and determination of Standards in institutions for higher education or research and scientific and technical institutions". (Entry 66 of List (I).
31. Turning to the Madras University Act, it is a pre-constitution enactment, having been passed in 1923. It is one of those Acts which continued in force by virtue of Art. 322 of the Constitution of India. It can, therefore, be altered, repealed or amended by a competent legislature or other competent authority. It is the contention of the learned Attorney General that the Central Act 52 of 1987 having been passed by a Competent Legislature, viz., the Parliament, is the law which has altered or amended the Madras University Act. U/S. 16 of the Madras University Act, the Senate shall have the power to make Statutes and amend or repeal the same, to prescribe in consultation with the Academic Council the conditions for approving colleges or institutions, to prescribe after consultation with the Academic Council the conditions for affiliating colleges to the University and to withdraw affiliation from colleges and to provide for the inspection of all colleges and hostels.
32. Section 19 of the Madras University Act sets out the powers of the Syndicate. The Syndicate has power to make Ordinances and amend or repeal the same among other powers. U/S.22 of that Act, the Academic Council shall be the Academic authority of the University and shall have the control and general regulation of teaching and examination within the University and be responsible for the maintenance of the standards thereof and shall exercise such other powers and perform such other duties as may be prescribed. S. 29 of that Act enumerates the matters for which the Statutes may provide. One such matter is the conditions of recognition of approved colleges and of affiliation to the University of affiliated colleges. S. 31 of that Act sets out the matters for which Ordinances may provide. They include the admission of students to the University, the qualifications and emoluments of the teachers of the University and the conduct of examinations. S. 33 of that Act provides for making of Regulations by the Academic Council. By virtue of S. 56 of that Act, the Statutes, Ordinances and Regulations in force at the time of the commencement of the Madras University Act shall continue to be in force at the time of the commencement of the Madras University Act shall continue to be in force until they are replaced by Statutes, Ordinances or Regulations framed under that Act.
33. Under Cl. 3 of Chapter XI of the Laws of the University, the Senate shall have the powers set out therein. Some of them are,
1. to encourage co-operation among University colleges and laboratories, affiliated colleges and approved colleges;
2. to provide for instruction and training in such branches of learning as it may think fit;
3. to prescribe in consultation with the Academic Council the conditions for approving colleges or institutions in which provision is made for courses of study for admission to the Pre-university examination or for the preparation of student for titles or diplomas of the University and to withdraw such approval;
4. to prescribe after consultation with the Academic Council, the conditions for affiliating colleges to the University and to withdraw affiliation from colleges; and
5. to provide for the inspection of all colleges and hostels.
34. Thus, it is seen that the Madras University Act contains provisions which would relate to co-ordination and determination of standards in colleges including institutions for higher education or research and scientific and technical institutions. It goes without saying that the Madras University Act, 1923, is a parallel enactment to Central Act 52 of 1987 with reference to technical institutions. In view of the categorical pronouncements made by the Supreme Court, such of those provisions of the Madras University Act which will fall under the heading "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" will be void and inoperative. The Parliament having been entitled exclusively to legislate on the subjects in List I, the Central Act will prevail over the provisions of the Madras University Act as well as the Statutes, Ordinances and Regulations made under the said Act. In so far as Statutes, Ordinances and Regulations made under the Madras University Act are concerned, they will form subordinate legislation and they will also be void and inoperative with reference to co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India , it was held that a subordinate legislation will be invalid even if it contravenes a statute other than the one under which it is made. It was observed as follows :
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation....."
35. As regards the State Government, it has been exercising powers by virtue of Art. 152 of the Constitution of India. Under that Article the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Under the proviso, in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. When the main Article empowers the State Government to pass an executive order with reference to matters covered by Entry 25 in List III, the proviso has the same effect as Art. 246(1) of the Constitution. If the Union Government exercises its executive power under Art. 73 of the Constitution with reference to matters covered by Entry 66 of List I, the power of the State Government will cease to have any power with reference to these matters. The argument advanced by the learned Advocate General that the Executive orders of the State Government will hold good so long as they are not repugnant or contrary to the directions given by AH India Council for Technical Education, is without any force. The ratio of the judgments of the Supreme Court referred to earlier will apply with more force as regards the executive orders passed by the State Government. Long before the enactment of Central Act 52 of 1987, the All India Council for Technical Education was set up in 1945 by a Government resolution 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. The State Government could be said to have been functioning under the advice of the said Council till the Central Act 52 of 1987 was passed. In fact, during the course of arguments, the learned Advocate General submitted that the State Government was always implementing the directions given from time to time by the All India Council. Whatever may be the position before the enactment of the Central Act, on the coming into force of the Act, the State government's jurisdiction over the matters covered by the Act vanishes. What applies to a State Legislation will apply with more force to an executive order made by the State.
36. The learned Advocate-General as well as learned counsel for the University placed reliance on some decisions of the Supreme Court in support of their contention that the State Government as well as the University are entitled to prescribe higher standards or additional conditions other than those prescribed by the All India Council for Technical Education. In Chitralekha v. State of Mysorea question arose whether the State Government had
power to prescribe a machinery and also the criteria for admission of qualified students to Medical and Engineering colleges run by the government and with the consent of the management of the Government aided colleges, to the said colleges also, as against the provisions contained in the Mysore University Act by which the Academic Council had the power to prescribe the conditions for admission of students to the University. The majority took the view that the executive direction given by the State Government was valid as it did not contravenue the provisions of the Mysore University Act. According to the majority, the test was whether the impact of the State law would wipe out or appreciably abridge the Central law and only in cases where it does so, the State law could be struck down. After referring to the judgment of the Supreme Court in Gujarat University case, and
extracting passage therefrom, the majority observed 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 institutions 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 law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it could be directly encroaching on the field covered by entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law."
37. The same test was applied in State of Andhra Pradesh v. L. Narendra Nath, . The proposition was reiterated in Ambesh Kumar v. Principal, LLRM Medical College, Meerut, . The
relevant passages in the judgment read thus :--
"In the instant case the number of seats for admission to various post-graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regulations made under the Indian Medical Council Act cannot be said to be in conflict with the said Regulations or in any way repugnant to the said regulations. It does not in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution....................
There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS Examination by the candidates had not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. We are in full agreement with the reasoning and conclusion of the High Court in this respect. This contention, therefore, in our considered opinion, is without any merit."
38. In our view, the principle laid down in the aforesaid three decisions of the Supreme Court will not apply to the present case. In Osmania University Teachers' Association v. State of Andhra Pradesh, , all the above three decisions are referred to and
distinguished on the footing that those decisions related to schemes for admission to colleges. In the present case we are not concerned with any scheme for admission to colleges. Hence, this case will be governed by the principles laid down in the other set of decisions of the Supreme Court to which we have made reference in paragraphs 22 to
29. Hence, we have no hesitation to affirm the finding of the learned single Judge that after the Central Act, 52 of 1987 came into force, it is not open to the State Government or the University to give approval or disapproval to any technical institution.
39. We do not find any substance in the argument that the All India Council for Technical Education will have no jurisdiction over the existing colleges and that it can exercise its powers of recognition or de-recognition only with reference to new colleges, which are established after the coming into force of the Act. Nor is there any substance in the argument that the power or recognition or withdrawal or affiliation continues to subsist in the State Government or the University respectively insofar as institutions which came into existence prior to the passing of Central Act, 52 of 1987. The argument is that as the permission was given by the State Government subject to certain conditions, it is open to the State Government to cancel the same on the ground that the conditions were not fulfilled. Similarly, it is argued that the University having granted affiliation subject to certain conditions, is entitled to withdraw the affiliation on the ground that those conditions are not fulfilled. We have already referred to the relevant provisions of the Central Act. It does not make any distinction between institutions which had come into existence before the passing of the Act and those which are to be started thereafter. We have no doubt whatever that the Act applies to all technical institutions, whether they came to be before the passing of the Act or subsequent thereto. The learned Advocate General lays stress on Section 10(k) of the Act which provides for grant of approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. The said provision does not indicate in any manner that the powers conferred and the duties enjoined on the Council are confined to such new institutions and not the existing institutions. The language of the other clauses in Sec. 10 of the Act as well as the other sections of the Act shows that the jurisdiction of the Council extends over all the technical institutions, whether established before or after the Act. Hence, the State Government and the University have to act only on advice of the All India Council for Technical Education for withdrawing the permission or recognition or affiliation. Admittedly, when the Act came into force, the Colleges in question had valid permission and affiliation. On the coming into force of the Act, the power to cancel the permission or withdraw the affiliation having vested in the All India Council, neither the State Government nor the University can exercise the same. Hence, the State Government had no jurisdiction to appoint a High Power Committee on its own and cancel the permission granted to the petitioner on the basis of the findings of the said High Power Committee. The only course open to the State Government was to have forwarded the findings of the High Power Committee to the All India Council for Technical Education and requested them to take appropriate action. Similarly, the University had no jurisdiction to rely straightway on the findings of the High Power Committee and withdraw the affiliation granted to the petitioner.
40. However, insofar as the University is concerned, it is conceded that refusal to grant affiliation or withdrawal of affiliation already granted can be made by the University on grounds which will not have any relation to co-ordination and determination of standards. In so far as technical institutions are concerned, it is open to the University to impose conditions for affiliation which will have no bearing on co-ordination and determination of standards. That power of the University was not disputed either by the learned Attorney-General or by Sri K. K. Venugopal, who appeared for the writ petitioner.
41. Consequently, the question arises whether in this case Statute 44.A in Chapter XXVI of laws of the University can he invoked and whether the resolutions passed by the Syndicate and impugned in W.P. No. 10223 of 1989 are valid. Before answering the said question, it is necessary for us to refer to the relevant provisions in the Laws of the University regarding affiliation and approval of colleges and the practice which is adopted by the Madras University at present.
42. Chapter XXVI of the Laws of the University deals with Affiliation and Approval of Colleges. Under Statute 18, Syndicate shall have the power after consultation with the Academic Council to affiliate any college as an Affiliated College or as an approved college within the University area. Statute 19 empowers the Syndicate to recommend to the Senate the withdrawal of suspension for a definite period of the affiliation or approval granted to a college. Statutes 37 to 42 prescribe the procedure for granting affiliation or approval. Under Statute 37, a college applying for affiliation or approval shall send a formal letter of application to the Registrar between the 1st July and 31st October proceeding the academic year in which the courses are proposed to be started and shall give full information in the letter on the matters set out in the statute, such a Constitution and personnel of the Managing Body, subjects and courses in which affiliation or approval is sought, accommodation, equipment, strength of the college, the number of students for whom provision has been made or is proposed to be made, qualifications, salaries and work of the teachers together with a time-table of work, hostel and lodgings and play ground and residences for the Principal and the other members of the staff and fees proposed to be levied and the financial provision made for capital expenditure on the buildings and equipment for the continued maintenance of the college. All applications for affiliation or approval shall be considered by the Syndicate not later than the month of November (vide Statute 38). Statute 40 prescribed an affiliation fee on Rs. 2500/ - for each subject. Under Statute 41, the Syndicate may call for any further information which it may deem necessary to consider an application for affiliation or approval of colleges. It is provided in the same Statute that after considering the report of the local enquiry, if any, and after making any further enquiries as may be necessary, the Syndicate shall decide whether the affiliation or approval should be granted or refused, either on a whole or in a part and shall after consultation with the Academic Council, grant Or refuse the affiliation or approval accordingly. If the recognition, affiliation or approval is granted, the fact shall be reported to the Academic Council and the Senate at the next meeting. Statute 42 provides that affiliation or approval may be granted to a college or to departments of a college which provides courses of instructions in Arts, Science, Law, Medicine, Engineering, Teaching, Agriculture, Veterinary Science, Commerce, Oriental Learning or Fine Arts and that the affiliation or approval shall be given specially for each subject or each group of subjects and for each separate standard. Statute 44 prescribes powers for penal action. Statute 44.A is very relevant in this case, as reliance has been placed thereon by the University. The said Statute is in the following terms :--
"The affiliation or approval granted may be provisional. If provisional, affiliation or approval shall he granted for a fixed period, the length of the period and the conditions which should be fulfilled by the college before the expiry of the period shall be specified in the order of the Syndicate granting the affiliation or approval. If the conditions are not fulfilled by the end of the period fixed, the affiliation or approval shall cease automatically. It shall be competent for the Syndicate, however, to grant such extension of time for fulfilling the conditions if the extention sought is bona fide If the conditions are fulfilled, the Syndicate shall have the power at the end of the period, to confirm affiliation or approval. The confirmation of the affiliation of approval shall be reported to the Academic Council and the Senate."
Statutes 46, expressly prohibits gram of affiliation or approval with retrospective effect.
43. While the procedure prescribed by the Statutes is unambiguous, the University of Madras has not been following it in practice and it can be said without any fear of contradiction that the Statutes are followed more in breach than in observance. There is no provision in the Statutes for granting affiliation before the conditions are fulfilled. The enabling provision in Statute 44. A. to the effect that affiliation or approval granted may be provisional, is invariably misused by the University by granting provisional affiliation or approval even when any one of the prescribed conditions is not fulfilled. For example the provisional affiliation granted in this case by the University to the writ petitioner is by a letter dated 21-11-1987 for the Academic year 1987-88. Reading Statutes 37 and 38 together, the application for affiliation for the Academic year 1987-88 should have been made between the 1st July and 31st October, 1986, and it ought to have been considered by the Syndicate not later than the month of November, 1986. We have already been on the facts of this case that the State Government gave permission for the establishment of the College in June, 1987. The petitioner would have applied for affiliation only subsequently to the University. The application could have been made only for the academic year 1988-89 and not 1987-88. However, the University entertained the application for the academic year 1987-88 and also granted provisional affiliation for the said year as late as 21-11-1987. In the communication to the petitioner informing him of the grant of temporary affiliation, as many as 27 conditions are set out and the petitioner was required to fulfil the same. In our opinion, Statute 44.A does not contemplate the grant of provisional affiliation or approval in such cases. That statute only reads that if and when the Syndicate decides to grant affiliation or approval on the footing that most of the conditions prescribed already for such grant had been fulfilled, it may make the affiliation or approval provisionally with a view to enable the college to fulfil the remaining conditions within a prescribed period. Provisional affiliation or approval can be granted by the Syndicate only if it is satisfied that the conditions which remained unfulfilled are not of such importance in the sense that the cause of education would not suffer by the grant of provisional affiliation with a direction to the college to fulfill the remaining conditions within the prescribed period. It is not open to the Syndicate to grant affiliation or approval provisionally when none or most of the conditions prescribed had not been fulfilled. Statute
44.A must be read and understood in the context of the preceding statutes and it does not confer any power on the Syndicate to ignore the provisions. contained in Statutes 37 to 43. But, admittedly, the University of Madras had been following an unhealthy and unwarranted practice of granting affiliation or approval even without satisfying itself that at least the essential conditions prescribed are satisfied or fulfilled by the concerned college. Admittedly, in the recent years, the Syndicate of the University of Madras has been granting provisional affiliation to all the applicants, whether they satisfied the requirements or not; but the grant is made with the direction that the conditions should be complied with by the applicants. By adopting the said practice, the University of Madras has been doing a great disservice to the cause of education as well as the society. The members of the public comprising parents and students are being misled by the grant of provisional affiliation by the University. It is also a matter for regret that the University has been simply winking at the commencement of colleges and courses by the aspirants for affiliation even before the actual provisional affiliation. Invariably, the applicants for affiliation commence the colleges immediately after sending the applications for affiliation. Even though the University is fully aware of this illegal practice of commencement of colleges and admitting students therein, it has not taken any steps to prevent the same. If the University has been strictly adhering to the procedure prescribed in Statutes 37 to 41, cases of this type would not have arisen. The University could also have prevented thereby the mushroom growth of private educational institutions by persons who commence such institutions purely as business and now as service to the society. S. 10(n) of the Central Act 52 of 1987 imposes a duty on the All India Council to take all necessary steps to prevent commercialisation of Technical Education. But, unfortunately, the University of Madras has knowingly or unknowingly encouraged such commercialisation by adopting a practice which is not warranted by the provisions of the statutes.
44. Yet another aspect of the matter has to be referred to in this connection. The University of Madras grants provisional affiliation as a rule for a period of one year only in the first instance and thereafter, extends the same on application by the colleges for such extension. This practice is adopted irrespective of the number of years for which the concerned, courses is to be conducted. For example, if a course of study, say Bachelor of Arts, is for three years, the University grants affiliation provisionally for one year leaving the matter of extension of affiliation for the second and third years in doubt, or rather reserving its right to exercise the power of refusal to extend the provisional affiliation for the second and third years. What is the fate of students who get admitted into such colleges and commence their studies, if after their completing the first year are to be told that the college will not have affiliation for the second and third years? Similarly, for Engineering courses which are known to be for four or five years, provisional affiliation is being granted for one year initially with the uncertainty of its extension for the subsequent years. Here again, there will be a hanging sword over the heads of the students who join the colleges which have obtained provisional affiliation for the first year and which may not get extension for the subsequent years. The Madras University does not seem to have given any thought whatever to this aspect of the matter. It is a mystery as to what prevents the University from satisfying itself that all the conditions prescribed for grant of affiliation or approval are fulfilled and then grant affiliation provisionally or permanently for the entire course of three years, four years or five years as the case may be. That will assure at least one set of students that they can have their education completed in one course in one college without being driven from pillar to post during the course of study. It is very unfortunate that the University of Madras, which is the custodian of education in this State should forego the interests of the students in this manner. It is high time that the University puts an end to this illegal practice of granting provisional affiliation to educational institutions even without substantial compliance with the conditions prescribed therefor.
45. By virtue of the existing practice, the University has been holding out, so to say, that provisional affiliation would be granted for the asking of it and it would be continued until it is expressly withdrawn or cancelled. Based on the same, the petitioner as well as hundreds of institutions have obtained provisional affiliation without fulfilling the conditions prescribed therefor. But, it is not possible for the University to contend that the grant of provisional affiliation is itself bad and consequently, institutions like that of the petitioner cannot seek continuance of the same or challenge the invocation of Statute 44.A of Chapter XXVI of the Laws of the University. The principles of doctrine of equitable estoppel will well apply to such cases including the present one. Based on the practice adopted by the University in the matter of grant of affiliation, people like the petitioner invest huge sums of money and innocent members of the public get their wards admitted in such colleges. It will be too late for the University to retrace its steps and withdraw the provisional affiliation already granted after the expiry of the period for which it was granted and particularly when it has been acted upon and courses are conducted by the colleges during the period.
46. It is in the above background, the question whether Statute 44.A of Chapter XXVI of the Laws of the University can be invoked by the University in this ease has to be answered. We have already pointed out that after the Central Act came into force, it is only the All India Council for Technical Education which can recognise or derecognise technical institutions and that the University can grant or refuse to grant affiliation only on grounds which will have no relevance to co-ordination and determination of standards. The learned single Judge has taken the view that condition No. 18 imposed by the University in its communication dated 21-11-1987 to the petitioner while granting provisional affiliation has not been fulfilled and the University is, therfore, entitled to invoke Statute 44.A. We have also adverted to the five reasons given by Mr. K.K. Venugopal, senior counsel for the petitioner, as to why condition No. 18 is not enforceable by the University. We have set out the reasons put forward by Mr. K. K. Venugopal in paragraph 11 and we do not think it necessary to repeat the same here. We accept his arguments in entirety and hold that condition No. 18 is not enforceable.
47. Apart from that, it is seen that the impugned resolutions passed by the Syndicate do not give any specific reason for invoking Statute 44.A of Chapter XXVI of the Laws of the University, excepting to place reliance on the report of the High Power Committee appointed by the State Government. It was not stated in the resolution that as the petitioner failed to comply with condition No. 18 or any other condition for that matter, the Syndicate resolved as such. When the impugned resolutions do not disclose any relevant ground for the action taken by the University, it is not open to the University to urge before this Court other grounds to support the same. Our attention is drawn by the learned Attorney-General to the ruling of a Division Bench of this Court inA. Vedachata Mudaliar v. Central Road Traffic Board, Madras (1948) 1 Mad LJ 322 : (AIR 1948 Mad 454). It was held in that case that the impugned order therein could not be supported as one passed in the exercise of powers conferred by Rule 149 of the Rules framed under the Motor Vehicles Act, as it did not appear on the face of the record that the Central Road Traffic Board was purporting to exercise a power conferred by the said Rule. The Bench observed thus :--
"....It does not appear on the face of the record that the Central Road Traffic Board was purporting to exercise a power conferred on it by R. 149. The order was both in form and substance an order allowing an appeal by the second respondent. It is well established that it is not a good return to a rule nisi for the issue of a writ of certiorari to state that the order is justified on facts not contained in the order. This Court cannot take notice of any fact which does not appear upon the face of the order (vide Halsbury, Hailsham Edition, Volume IX, page 889 and the King v. Liston, 101 ER 189)."
48. Reliance is also placed on the dictum of the Supreme Court in Mohinder Singh Gill v. Chief Election Commr., New Delhi, wherein it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Supreme Court pointed out that an order bad in the beginning, may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out, if such a course is permitted. In view of the above rulings, it is not open to the University to contend in this case that Statute 44.A of Chapter XXVI of the Laws of the University has been rightly invoked by the Syndicate or that the impugned resolutions are valid and they could be supported by grounds other than those disclosed in the resolutions themselves. We hold, therefore, that the impugned resolutions are unsupportable and deserve to be quashed with the result that W.P. No. 10223 of 1989 has to be allowed.
49. What remains to be considered is only the request made by the 59 students who have been permitted to intervene in these proceedings. It is not possible for us to accede to the prayer of the students and confirm the directions given by the learned single Judge to the Director of Technical Education to transfer the students to some other college where there are infrastructural facilities for the students to continue their studies. In view of our findings herein, we will be stultifying ourselves in issuing such directions or confirming the directions issued by the learned single Judge. Once we have taken the view that the question whether the norms, conditions and standards are satisfied and maintained by the college has to be decided only by the All India Council for Technical Education, it is not open to us to hold indirectly or impliedly that those conditions are not satisfied in this case, by placing reliance upon the report of the High Power Committee appointed by the State Government or the report of the High Court Committee appointed by the learned single Judge. Neither of the reports can conclude the issue or enable us to come to a conclusion. It is for the All India Council to decide whether the required conditions are fulfilled. Unless there is a report before us by the All India Council for Technical Education that the college in question has not satisfied the norms and conditions or maintained the required standards, we cannot hold that the college is functioning illegally or unlawfully and direct the second respondent to transfer the students to other colleges.
50. Learned counsel for the students placed reliance on the following observations made by the Supreme Court in Rajendra Prasad Mathur v. Karnataka University, :--
"....But, the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year B.Sc. examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year B.Sc. examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan, they were eligible for admission. The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges."
Learned counsel for the University drew our attention to the following observations in A. P. Christians Medical Educational Society v. Govt. of Andhra Pradcsh, :--
"Shri K. K. Venugopal, learned counsel for the students who have been admitted into the MBBS Course of this institution, pleaded that the interests of the students should not be sacrified because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medval College established by the Daru-Salem Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the law."
According to him, if the students are allowed to continue in the petitioner college, it will tantamount to directing the University to disobey the provisions of the University Act and the Statutes made thereunder.
51. Neither of the rulings referred to above will apply to the facts of the present case. We have stated sufficiently to show that the blame in this case is not merely on the writ petitioner, but mostly on the University. The students cannot also plead complete innocence. They ought not to have joined the college, which according to their present version, docs not have the minimum infrastructural facilities. In any event, we cannot give directions to the Government or the University to transfer the students to some other college.
52. However, we make it clear that it will be open to any student to get a transfer certificate from the petitioner college and join any other college. If a student applies for transfer certificate, it is not open to the petitioner college to refuse to issue the same. We place on record the assurance given by the Advocate-General on behalf of the Government and Mr. Murugesan learned counsel for the University that students who secure transfer certificates from the petitioner college will be accommodated in other colleges to enable them to continue their courses of study. In our view, that will protect the interests of the students.
53. Towards the end of the arguments, Mr. Somayajec, appearing for the students, submitted that the college is not functioning from June, 1989. That statement was stoutly denied by learned counsel for the petitioner. There is nothing on record before us by way of affidavit or otherwise that the college is not functioning since June, 1989. Hence, we do not take notice of the said submission made by Mr. Somayajee.
54. In the result, W.A No. 793 of 1989 is allowed and consequently rule nisi issued in W.P. No. 10223 of 1989 is made absolute. The resolution of the Syndicate of Madras University dated 21-7-1989 and communicated to the petitioner under letter No.A.II/A.C.E.,
Hosur/BE/Affin./89-I/1398 dated 26-7-1989 is quashed. Writ Appeals Nos. 797 of 1989 and 821 of 1989 are dismissed. In the circumstances of the case, the parties will bear their respective costs in all the appeals.
55. These three petitions have been filed by the appellant in Writ Appeal No. 793 of 1989, which we disposed of on 23-11-1989. In our judgment, in paragraph 52, there was an observation that if a student applies for transfer certificate, it is not open to the petitioner college to refuse to issue the same, the appellant felt aggrieved by that observation, and approached the Supreme Court of India in S.L.P. No. 144902 of 1989. By order dt. 8-12-1989, the Supreme Court directed the appellant to approach this Court for consideration of its prayer that should a student desire to leave the Institution, he should be bound down to the obligations, financial and otherwise, arising out of conditions of his admission, and that the Division Bench would consider the said prayer. The Supreme Court also observed that it will be within the entire discretion of the High Court as to what relief, if any, would the petitioner be entitled on that prayer.
56. Based on the directions given by the Supreme Court, the appellant has filed these three petitions. The first petition is for deleting or modifying para 52 of the judgment of this Court in the appeal. The second one is for direction to the first two respondents to allot the 50% quota of students for the first year B.E. Course in the petitioner-Institution within three weeks. The third petition is for directions to respondents 1 to 3 to permit the students of the petitioner-Institution to appear in all ensuing B.E. Examination for the B.E. Degree course to be conducted in the petitioner-Institution.
57. In our judgment, we had taken the view that after the passing of the Central Act 52 of 1987, the jurisdiction to decide whether a particular Institution satisfied the norms and standards prescribed therefor by the All India Council for Technical Education rested with the All India Council, and neither the State Govt. nor the University had the power to decide the same. On that footing, we allowed the appeal, and quashed the resolution passed by the University refusing to grant affiliation to the appellant. We also affirmed the judgment of the learned single Judge quashing to show cause notice issued by the State Government. In the course of the judgment, we observed in paragraph 49 as follows :--
"It is for the All India Council to decide whether the required conditions are fulfilled. Unless there is a report before us by the All India Council for Technical Education that the College in question has not satisfied the norms and conditions or maintained the required standards, we cannot hold that the college is functioning illegally or unlawfully and direct the second respondent to transfer the students to other colleges.
58. We must at this stage place on record as to what took place during the course of arguments in the appeal. Mr. K.K. Venugopal, learned senior counsel appearing for the appellant, when he commenced his arguments, said that the All India Council for Technical Education had not inspected the institutions and submitted its report, and if the council's report went against the Institution, then he would have had nothing to say. All that he contended was that so long as the council had not inspected the institutions and submitted its report, it was not open to the State Govt. or the University to withdraw the recognition or affiliation granted to the Institution. When the Attorney-General appearing for the All India Council for Technical Education, which is the fifth respondent in the appeal, commenced his arguments, we asked him whether it would he possible for the council to submit its report within a prescribed time. He pleaded his inability to sny whether the council could submit its report within a short time. However he assured us that he would advise the council to make inspection and submit its report as early as possible. We reserved judgment in this case on 1-11-1989 and delivered it only on 23-11 1989. We find now that a report had been submitted by the Committee constituted by t tie All India Council for Technical Education, after inspection of the appellant's Institution as early as 6-11-1989. But the report was not placed before us before we delivered the judgment. Had it been made available to us, the result of the appeal would have been different When those petitions came up before us on 15-12-1989, we directed learned counsel for the All India Council for Technical Education to place the report before us as we had information from the newspapers that a report had already been submitted. Pursuant to that direction, the report has been placed before us now.
59. A preliminary objection had been raised by learned counsel for the petitioner that we should not look into the report or act upon it, for two reasons. The first submission is that the scope of the discertion to be exercised by us as per the order of the Supreme Court is very limited. According to him, we are bound to consider only the prayer of the appellant with regard to the direction given by us in the matter of issuing transfer certificates to the students. Learned counsel contends that the Supreme Court's direction is clear that it is only the prayer of the appellant which should be considered by this Bench. Learned counsel also cited a judgment of the Full Bench of this Court in the Chief Controlling Revenue Authority, Madras, Board of Revenue, Madras v. Canara Industrial and Banking Syndicate Ltd., Madras, and placed reliance on the observation that it would be erroneous principle of interpreting the judgment, to press into service the last few observations alone, divorced, from the earlier passages. The second submission is that under S. 11 of the Ail India Council for Technical Education Act, the views of the council shall be forwarded to the Institution concerned, and the opinion of the Institution should be obtained by the council before any action is taken thereon. Hence, according to him, we shall not act on the report as it would be prejudicial to the appellant-Institution. Learned counsel' also submits that a copy of the report has not been forwarded so far by the All India Council to the appellant-Institution.
60. We overrule the two objections for the following grounds : with regard to the first objections, we find that the order of the Supreme Court is wide enough to enable us to consider as to what relief should be granted to the petitioner. In the last paragraph of the order of the Supreme Court, it is stated that it will be within the entire discretion of the High Court as to what relief, if any, would the petitioner be entitled. When we are called upon to grant a particular relief, we are certainly entitled to consider all the facts and circumstances. We had already expressed the view that we would act on the report of the All India Council for Technical Education, if it was placed before us. In the absence of a report, we had to decide on the provisions of the Act. We should also state that we had taken that view purely as a matter of law, and hence we ignored the report of the High Power Committee appointed by the Government as well as the report of the Committee appointed by the learned single Judge. Now, we find that the Committee constituted by the All India Council of Technical Education has submitted its report with the following conclusions :--
(1) That financial position of Adhiyaman College of Engineering, Hosur, its not sound,
(2) The College does not appear to be genuinely interested in the development of Technical Education.
(3) The College is not financially and academically viable.
(4) The College has neither created infrastructure facilities nor is capable of creating any infrastructual facilities.
The learned counsel for the All India Council for Technical Education submitted that this Court may look into the report and pass appropriate orders.
61. The judgment of the Full Bench cited by learned counsel for the petitioner does not really help him in any manner. On the other hand, the observation shows that the entire judgment should be taken into account, and if that is done, we are right in placing reliance on the observations made by us in para 49 of our judgment. The present order is passed by us only as a consequence to the observations already made.
62. As regards the objection raised by learned counsel for the petitioner that we shall not act upon the report until an opportunity is given to the petitioner by the council under S. 11 of the Act, we hold that for the limited purpose of considering the prayer, of the petitioner herein, we are entitled to look into the report which brings out the existing facts. This will not stand in the way of further proceedings by the council. It is crystal clear that the petitioner's Institution is nowhere near the norms and standards prescribed by the council. No other conclusion is possible in the face of the report submitted by the committee appointed by the council. Hence, we are of the view that the petitioner is not entitled to get any relief prayed for by him.
63. Apart from that, as the learned Advocate-General pointed out, the petitioner actually seeks to have to review of our judgment. He should have filed an application for review. But he has only filed a miscellaneous petition, paying a Court-fee of Rs. 2/- which is not the proper remedy. But, we are not dismissing the petition on that technical ground. Even treating this as a review portion, we do not find any ground for review. When we observed that it is not open to the petitioner college to refuse to issue the transfer certificates' we did not mean that the College should issue the certificates, irrespective of the rules governing the same. To a specific question put to the learned counsel for the petitioner, he stated that there are no rules relating to grant of transfer certificates. Learned counsel for the students, submitted that a few students are in arrears of Laboratory fees and Hostel fees. Learned counsel for the students assures us that the concerned students will clear the arrears before the issue of the certificates. If any student is not in arrears of fees payable to the college, then the College is bound to issue the transfer certificates,
64. It is relevant to notice what happened subsequent to our judgment which was delivered on 23-11-1989. It is brought to our notice that on 27-11-1989, a notice was affixed to the College notice board stating that the College will remain closed on account of study holdings and will reopen on 4-12-1989. The notice is signed by the Principal. Of course, learned counsel for the petitioner is not in a position to affirm or deny the genuineness of this notice. This notice has been placed before us by learned counsel for the students. It is obvious that this notice has been torn from the notice board of the College. It has been expressly referred to in the affidavit in C.M.P. No. 16339/89 filed on behalf of the students. After that, another notice has been affixed bearing the date 3-12-1989 stating that the College will continue to remain close for a Semestar holidays till 1-1-1990 and will reopen on 2-1 -1990. That notice has been signed by one R. Ravichandran on behalf of the principal. It is stated in the affidavit filed in support of C.M.P. No. 16339/89 that V. Ravichandran is an Associate Lecturer in the college. According to the affidavit, this notice was affixed in the notice board in the presence of the students with a view to avoiding issue of transfer certificates. Findings that the college was closed and nobody was there to issue transfer certificates, representations would appear to have been made to the Sub-Collector, Hosur, who sent for the College authorities. A list of students, who applied for transfer certificates would appear to have been given to the Sub-Collector, and an endorsement was made in the presence of Sub-Collector, by one Asai Thambi on behalf of the principal of the College. The endorsement reads as follows :--
"We have received from the above students applications requesting for transfer certificate and we will issue the transfer certificate after consultation with the management at an early date."
Below that, there is another endorsement by the Principal, which reads as follows :--
"As discussed in the room of Assistant Collector today, the individual application does not contain adequate reason for leaving this college on personal, financial or for betterment of Education."
It is stated in the affidavit that a detailed representation has been made subsequent to the endorsement giving the reasons for leaving the College. Whatever it may be, so long as there is no rule governing the issue of transfer certificates, the College can only insist upon payment of arrears of fees, if any, and cannot go into the validity of the reasons given by the students. A student is certainly entitled to leave the college as he chooses, it will not cause any financial prejudice to the institution. In these circumstances, we cannot help feeling that the College has been deliberately closed after our judgment in order to prevent the students from getting the transfer certificates. The manner in which the College has behaved deserved condemnation.
65. Hence, we are giving a direct ion to the petitioner-appellant to issue the transfer certificates to the students who are not in arrears of fees on or before 22-12-1989. With that direction, C.M.P. No. 16090 of 1989 is dismissed.
66. So far as CM.P. Nos. 16091 and 16092 of 1989 are concerned, they do not arise out of the order of the Supreme Court, as they are independent applications which have been filed for directions. Those petitions are ex facie not maintainable. Even on the merits, the prayers cannot be granted in view of facts stated already. Hence these petitions are also dismissed.
67. After we concluded dictating the judgment, leaned counsel for the petitioner prays that the time granted for issue of the transfer certificate is very short, and the College is also being closed for Christmas from 22-12-1989.1 le also states that he should be granted sufficient time to enable him to move the Supreme Court. Neither of the reasons given by the learned counsel for the petitioner is sufficient to grant the prayer made by him. We have already referred to the fact that the College has been deliberately delaying the issue of transfer certificate from 27-11-1989 onwards. Hence, the petitioner does not deserve any extension of time as prayed for. It is also rightly pointed out by learned counsel for the students that if they have to join other colleges, it has to be done before the next semester begins. It is well known that the next semester begins in the first week of January, 1990. Hence, we reject the prayer for a larger time for issue of transfer certificates.
68. Order accordingly.