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Judgment
P. Sathasivam, J.—Since all these matters are interlinked; the question raised and the issue involved are one and the same; they are being
disposed of by the following Common Judgment.
The above writ appeals are by the State against the interim orders/interim directions of the learned Single Judge. Since we are taking up the main
writ petitions themselves for disposal, there is no need to go into the correctness or otherwise of the interim orders which are the subject matter of
the writ appeals.
The writ petitioners/Educational Trusts are running Engineering Colleges, after getting proper approval from the All India Council for Technical
Education (''AICTE'' in short). In some of the Writ Petitions, proviso to Section 5(ac) of the Anna University Act, 1978, is challenged. Some of
the petitioners are seeking direction to grant provisional affiliation while others seek direction for inclusion of their colleges in the Single Window
System.
It is the common case of the petitioners that the educational institutions run by them applied to the AICTE in prescribed forms, with all
enclosures and details, for establishing engineering colleges. It is also their case that after inspection made by the Expert Committee of AICTE and
after satisfying the norms and standards, the AICTE has accorded approval to the petitioners'' Trusts for establishment of engineering colleges with
prescribed seats on a further condition that the admission shall be made through central counselling by the Government of Tamilnadu. It is also
stated that the order of AICTE granting approval was communicated to Anna University with a request to complete the process of affiliation for
facilitating admission. It is their further case that all of them satisfied the norms/condition prescribed by AICTE. After the approval given by the
AICTE, the petitioners submitted applications to the Anna University for grant of affiliation.
According to the petitioners, they came to know that in view of the amendment to the Anna University Act, prior permission from the State
Government is required for the colleges being affiliated to the University. As per the proviso to Section 5(ac) of the amended Act, no college shall
be affiliated to the University unless the permission of the Government to establish such college has been obtained and terms and conditions, if any,
of such permission have been complied with. According to them, the said amended provision is beyond the legislative competence of the State
Government, repugnant to the Central Act, namely All India council for Technical Education Act, 1987 (AICTE Act'' in short), arbitrary and
without jurisdiction. It is the claim of the petitioners that so far as the professional colleges are concerned, the entire control of the institutions is
vested only with All India Councils, such as All India Council for Technical Education, All India Medical Council, Dental Council of India, etc.
Role of the University in respect of professional colleges is minimal and grant of affiliation is a matter of course. There is no justification on the part
of the University to insist upon prior permission of the State Government for establishment of a college and for granting affiliation. They also
submitted a separate application to the Secretary, Tamil Nadu Engineering Admissions, Anna University, for inclusion of the names of their
engineering colleges for counselling under Single Window System in the brochure contemplated under Regulation 8(2) of the AICTE (Norms and
Guidelines for Fees and Guidelines for Admissions in Professional Colleges) Regulation, 1994.
Heard Mr. Habibullah Basha, learned senior counsel, Mr. K. Doraisami, learned senior counsel; Mr. V. Sanjeevi, Mr. R.Suresh Kumar, Mr.
Issac Mohanlal, Mr. K. Vijayakumar, Mr. P.L. Narayanan and Mr. T. Meikandan for the petitioners; Mr. R. Viduthalai, learned Advocate
General for the State; Mr. Mani Sankar Gopal for Anna University; Mr. N. Murali Kumaran for AICTE; and Mr. A.V. Elango for Madras
University.
The main contentions of the learned senior counsel for the petitioners and other counsel are that the order/proceeding of the Anna University
calling upon the petitioners to obtain permission from the State Government to establish their colleges, failing which affiliation will not be granted by
the University, is illegal, arbitrary and violative of Articles 14 and 30(i) of the Constitution. It is also contended that the order of the University is
contrary to AICTE Act and Regulations. Once the approval of AICTE has been obtained, there can be no further condition imposed by the
University for the grant of affiliation. In such circumstances, the proviso to Section 5(ac) of the Anna University Act runs contrary to the dictum laid
down by the Supreme Court in State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, and Jaya Gokul
Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and
Another, . Both these judgments enunciate that it is only the AICTE which has the authority to grant approval and that neither the State
Government nor the University has the authority to give any approval or reject any application. According to them, the grant of approval to
establish an engineering college is exclusively governed by the Central Act, namely AICTE Act, 1987 and the Regulations made thereunder and is
referable to Entry 66, List-I of the VII-Schedule of the Constitution of India. The said Central Act, more in particular Section 10(k), and
Regulation 8 of the Regulations made thereunder, occupied the field relating to grant of approval to an engineering college and that neither the State
Government nor the University has any role in this regard. There is no power vested in the University or the State Government to enact laws which
are repugnant to the Central Act, especially in regard to grant of approval to establish technical institutions after the 42nd amendment of the
Constitution in 1976 and consequently the impugned provisions of the Anna University Act is liable to be struck down as ultra vires,
unconstitutional and beyond the legislative competence of the State Legislature.
On the other hand, Mr. R. Viduthalai, learned Advocate General, submitted that even after the approval by AICTE, the permission or No
Objection Certificate is to be granted by the State Government, since it has more role in the establishment of engineering colleges in the State of
Tamil Nadu. According to him, the condition prescribed by the Anna University that before the grant of affiliation, permission of the State
Government is mandatory, is perfectly in order and there is no ground for interference.
We have carefully considered the relevant materials and rival contentions.
It is not in dispute that the petitioners'' Trusts have established engineering colleges either as minority institutions or as self financing colleges. It is
the claim of the petitioners that on proper application and satisfying all the conditions/requirements they obtained approval from AICTE. It is also
their claim that all their institutions fully satisfied the terms and conditions contained in the Regulations of AICTE and inasmuch as they complied
with the requirements as per the norms they are entitled to get their colleges affiliated to the University, namely Anna University. It is their further
case that after obtaining letter of approval from AICTE they submitted applications to the Anna University for grant of affiliation and at that time
they came to know that in view of the amendment to the Anna University Act prior permission from the State Government is required for the
college being affiliated to the University. An amendment to the Anna University Act has been brought in by Tamil Nadu Act 26 of 2001, whereby
the technical institutions (engineering colleges) in the State of Tamil Nadu have been brought under the purview of AICTE Act and as such Anna
University is empowered to grant affiliation to the engineering colleges proposed to be started in the State. As per the proviso to Section 5(ac) of
the Amended Act, prior permission of the State Government for establishment of the colleges is required for getting affiliation to the colleges. It is
the claim of the petitioners that the said amended provision is beyond the legislative competence of the State Government, repugnant to the Central
Act, namely AICTE Act, arbitrary and without jurisdiction.
The pith and substance of the stand taken by the petitioners is that insofar as as the professional colleges are concerned, the entire control of
the institutions is vested only with All India Councils, such as All India Council for Technical Education, All India Medical Council, Dental Council
of India, etc. The role of the University in respect of professional colleges is minimal and grant of affiliation is a matter of course. It is also their
claim that there is no justification on the part of the Anna University to insist upon the prior permission of the State Government for establishment of
the college for granting affiliation.
After coming into force of AICTE Act, 1987, the entire field relating to grant of approval for new technical institutions lies with the Council
established u/s 3 of the Act. Chapter-III of the Act deals with the powers and functions of the Council. Section 10(k) of AICTE Act empowers
the Council to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultancy with the
agencies concerned. Though Regulation 8(4)(e) of AICTE Regulation insist that No Objection Certification from the State Government was
mandatory with effect from 20.11.2002, on 28.11.2005 itself AICTE issued another Notification to the effect that No Objection Certificate from
the concerned State Government is not mandatory. The provisions in the AICTE Act, 1987, which is a central Act and the Regulations made
thereunder cover the entire field of establishment of an engineering college. It has been repeatedly held by this Court and the Hon''ble Supreme
Court that the Central Act, more particularly Section 10(k) of the Act and Regulation 8 of the Regulations made thereunder, occupied the field
relating to grant of approval for establishing engineering colleges and that neither the State Government nor the University has any role in this
regard. After the enactment and regulations, there is no power vested in the university or the State Government to enact laws which are repugnant
to Central Act, especially to grant approval for establishing new technical institutions after the 42nd Amendment to the Constitution in 1976. As
rightly argued, once approval from AICTE has been obtained, there can be no further conditions imposed by the Anna University for grant of
affiliation and any such condition will be in conflict with the approval granted by AICTE and as such illegal and unsustainable in law. This has been
laid down in the judgment of the Supreme Court reported in State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and
Others, and followed by the Supreme Court in the judgment reported in Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to
Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, .
In Adhiyaman''s case, the question involved before the Supreme Court was whether, after coming into force of the AICTE Act, 1987, the
State Government has power to grant and withdraw permission to start a technical institution as defined in the Central Act. After referring to
various Entries, the Hon''ble Supreme Court has concluded thus:
A comparison of the Central Act and the University Act will show that as far as the institutions imparting technical education are concerned,
there is a conflict between and overlapping of the functions of the Council and the University. u/s 10 of the Central Act, it is the Council which is
entrusted with the power, particularly, to allocate and disburse grants, to evolve suitable performance appraisal systems incorporating norms and
mechanisms for maintaining accountability of the technical institutions, laying down norms and standards for courses, curricula, staff pattern, staff
qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new
technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions, providing
guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and
programmes, declaring institutions at various levels and types fit to receive grants, advising the Commission constituted under the Act for declaring
technical educational institutions as deemed universities, setting up of National Board of Accreditation to periodically conduct evaluation on the
basis of guidelines and standards specified and to make recommendations to it or to the Council or the Commission or other bodies under the Act
regarding recognition or derecognition of the institution or the programme conducted by it. Thus, so far as these matters are concerned, in the case
of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it
which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be
deemed to have become unenforceable in case of technical colleges like the engineering colleges. As has been pointed out earlier, the Central Act
has been enacted by Parliament under Entry 66 of List I to coordinate and determine the standards of technical institutions as well as under Entry
25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the engineering colleges and the conditions for grant
and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for
grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters
entrusted to it u/s 10 of the Central Act.
In Jaya Gokul''s case cited supra, the following conclusion of their Lordships in paragraphs 22 and 23 of the judgment is relevant.
As held in T.N. case the Central Act of 1987 and in particular, Section 10(k) occupied the field relating to ""grant of approvals"" for establishing
technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi
University Act or its statutes were concerned and in particular Statute 9(7), they merely required the University to obtain the ""views"" of the State
Government. That could not be characterised as requiring the ""approval"" of the State Government. If, indeed, the University statute could be so
interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(k) of the AICTE Act,
1987 and would again be void. As pointed out in T.N.case there were enough provisions in the Central Act for consultation by the Council of
AICTE with various agencies, including the State Governments and the universities concerned. The State-Level Committee and the Central
Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees,
AICTE would have to go by the view of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State
Governments and the universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in
T.N.case it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions
imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not
be inconsistent with the provisions of the Central Act. The University could not therefore, in any event have sought for ''approval'' of the State
Government.
Thus we hold, in the present case that there was no statutory requirement for obtaining the approval of the State Government and even if there
was one, it would have been repugnant to the AICTE Act. The University Statute 9(7) merely required that the ""views"" of the State Government
be obtained before granting affiliation and this did not amount to obtaining ""approval"". If the University statute required ""approval"" it would have
been repugnant to the AICTE Act....
As rightly pointed out by the learned Counsel for the petitioners, both these judgments have clearly laid down that it is only AICTE which has
the authority to grant approval and neither the State Government nor the University has the authority to give approval or to reject any application
and that, if there is any statutory requirement made under any law by the State Government or the University, it will be repugnant as it is
incongruent with the Central Act, namely All India Council for Technical Education Act, 1986.
It is also useful to refer to a Division Bench decision of this Court reported in Bharathidasan University and Others Vs. Dhanalakshmi
Srinivasan, Educational and Charitable Trust and Others, . The batch of cases dealt with therein relates to the issue declining to consider and grant
affiliation to the colleges proposing to establish B.Ed. Training Course by the Universities in the State of Tamil Nadu. By stating that Sections 14
and 15 of the National Council for Teacher Education Act, 1993 are similar to the one contained in Section 10(k) of AICTE Act or 10-A of the
Indian Medical Council Act; and by pointing out that the judgments of the Supreme Court in Jaya Gokul''s case (cited supra) and Thirumuruga
Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, would clearly apply to the NCTE Act; it was
contended by the educational institutions that after approval by the Body under NCTE Act, no other permission or approval is required from any
authority. The Division Bench, after considering the relevant provisions of NCTE Act, AICTE Act and Indian Medical Council Act, 1956, the
judgments of the Supreme Court in Adhiyaman''s case, Jaya Gokul''s case and Thirumuruga Kirubananda Variar''s case and after finding that Entry
66 of List-I, which is Union List and the same is reflecting in the preamble of NCTE Act, concluded that the provisions contained in the NCTE Act
and the Regulations made thereunder regulate the establishment and administer the Teacher Training Institutes and that the Regional Committee
alone is empowered to consider the claim for recognition even in a case where the State Government has refused to grant No Objection
Certificate. The Bench was also of the view that if the Regional Committee is satisfied with regard to the fulfilment of requirements for grant of
recognition, it is the duty of the examining body, namely Universities, to grant affiliation without insisting upon the institutions to produce the prior
permission of the State Government based on the resolution of their Syndicate in accordance with their respective University Act and statutes and
the Tamil Nadu Private Colleges (Regulation) Act as it is illegal and contrary to the law laid down by the Supreme Court. While finding so, the
Division Bench directed the respective Universities to pass orders on the applications made by the respective institutions.
In State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, , in respect of NCTE Act, the following
conclusion of the Hon''ble Supreme Court in paragraphs 67 and 71 of the judgment is relevant:
In view of the fact, however, that according to us, the final authority lies with NCTE and we are supported in taking that view by various
decisions of this Court, NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence
of No Objection Certificate by the State Government/ Union Territory. Absence or non-production of NOC by the institution, therefore, was
immaterial and irrelevant so far as the power of NCTE is concerned.
...
It is thus clear that the Central Government has considered the subject of Secondary Education and Higher Education at the national level. The
Act of 1993 also requires Parliament to consider Teacher Education System ''throughout the country''. NCTE, therefore, in our opinion, is
expected to deal with applications for establishing new B. Ed. colleges or allowing increase in intake capacity, keeping in view 1993 Act and
planned and co-ordinated development of teacher education system in the country. It is neither open to the State Government nor to a University
to consider the local conditions or apply ''State policy'' to refuse such permission. In fact, as held by this Court in cases referred to hereinabove,
State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government,
therefore, was contrary to law and has rightly been set aside by the High Court.
Before winding up, it will be useful to refer another Judgment of the Supreme Court which arises from AICTE Act. In Govt. of A.P. and
Another Vs. J.B. Educational Society and Another etc., , the Hon''ble Supreme Court considered Section 20(3)(a)(i) of the Andhra Pradesh Act,
1982, with reference to Section 10 of the AICTE Act, 1987, and finally held that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of
the AICTE Act and it is constitutionally valid. The appeals before the Supreme Court were filed by the State of Andhra Pradesh, challenging the
decision of the Division Bench of the High Court of Andhra Pradesh in Writ Appeal Nos. 1571 of 1997, 84 of 1998 and 85 of 1998. The Division
Bench partly confirmed the judgment of the learned single Judge holding that Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982 (in
short ""the A.P. Act"") is void and inoperative and the State Government had no legislative competence to pass such a legislation as the State
provision was in the field already occupied by the enactment made by Parliament, viz..., the All India Council for Technical Education Act, 1987
(AICTE Act). It was also held that in view of Section 10 of the AICTE Act with regard to establishment of technical institutions in general, the said
special enactment legislated by Parliament would prevail over the A.P. Act to the extent of its repugnancy. The Writ Petitioners/private educational
institutions wanted to establish engineering colleges in the State of Andhra Pradesh. They applied to the authorities under the AICTE Act and
approval was granted to them for the academic year 1997-98 by the AICTE Council. The Writ Petitioners made applications u/s 20 of the Act for
permission to establish the Institution. Permission was rejected on the ground that the writ petitioners had been seeking permission to establish
colleges in the places where already there were a number of colleges and that the State Government was not satisfied about the educational needs
of that locality. In that view of the matter, permission was declined. Aggrieved by the same, the Writ Petitions were filed.
The petitioners in the Writ Petitions contended that in view of Section 10 of the AICTE Act, no permission of the State Government u/s 20 of the
Act was required as the field is completely covered by the AICTE Act. It was argued that once the approval was granted by the Council, the State
Government cannot refuse permission on the ground that the proposed educational institution may not subserve the educational needs of the
locality. Learned Counsel for the State, on the other hand, contended that Section 20 of the A.P. Act and Section 10 of the AICTE Act operate in
different fields, there is no conflict between these provisions and that they are not repugnant to each other and the decision of the Division Bench is
erroneous. It was also contended by the appellant''s counsel that the State Legislature has legislative competence to pass the enactment and that, in
view of Entry 25 of the Concurrent List, the State alone would be competent to say whether an Institution should be established in an area to serve
the educational needs of that locality. After referring to the relevant provisions and the earlier judgments of the Supreme Court in T.M.A. Pai
Foundation and Others Vs. State of Karnataka and Others, ; Islamic Academy of Education and Another Vs. State of Karnataka and Others, ;
and Jaya Gokul Educational Trust''s case (cited supra); their Lordships have held as follows:
The educational needs of the locality are to be ascertained and determined by the State. Having regard to the Regulations framed under the
AICTE Act, the representatives of the State have to be included in the ultimate decision-making process and having regard to the provisions of the
Act, the writ petitioners would not in any way be prejudiced by such provisions in the A.P.Act. Moreover, the decision, if any, taken by the State
authorities u/s 20(3)(a)(i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting
permission. Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of the AICTE Act and it is constitutionally valid.
If the said decision is applied, proviso to Section 5(ac) of the Anna University Act, 1978, cannot be held to be unconstitutional. We have
already refereed to the earlier decisions of the Supreme Court in Adhiyaman''s case, Jaya Gokul''s case and S.D.S.S. Mahavidyalaya'' s case
(cited supra), wherein it was specifically held that there was no statutory requirement for obtaining the approval of the State Government and even
if there was one it would have been repugnant to the AICTE Act. In this regard, it is also relevant to the ultimate observation made by the three
Judges Bench of the Supreme Court, ie., S.D.S.S. Mahavidyalaya''s case. Though it was observed by the Bombay High Court that the provisions
of Sections 82 and 83 of the Maharasthra University Act are null and void, in view of National Council For Teacher Training Act, 1993, in para
No. 77 of the Judgment, the Hon''ble Supreme Court has clarified the decision to the following effect:
...To us, it appears that what the High Court wanted to convey was that the provisions of Sections 82 and 83 would not apply to an institution
covered by 1993 Act. As per the scheme of the Act, once recognition has been granted by the NCTE u/s 14(6) of the Act, every university
(''examining body'') is obliged to grant affiliation to such institution and Sections 82 and 83 of the University Act do not apply to such cases.
Coming to the two decisions of the Hon''ble Supreme Court viz., J.B. Educational Society''s case (cited supra) and S.D.S.S. Mahavidyalaya''s
case (cited supra), it has to be borne in mind that Their Lordships of the Apex Court are unanimous on the point that when there is a conflict
between the Parliament and State legislature and such conflict between the two enactments being irreconcilable, the parliamentary legislation would
prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List. In that
background, we gave our heedful attention to the issue before us. We see that J.B. Educational Society''s case was decided by Their Lordships of
the Supreme Court on 23rd February, 2005, and that, at the time of deciding the said case, Notification of the AICTE to the effect that NOC from
the concerned State Government is not necessary was not at all there as it came into existence only on 28.11.2005, i.e., nearly 10 months after the
pronouncement of the Judgment in the above case. Hence, by applying the latest decision rendered by a three Judges Bench of the Apex Court in
S.D.S.S. Mahavidyalaya''s case, we hold that once recognition has been granted by the AICTE, the University is obliged to grant affiliation to the
Institutes concerned.
It is worthwhile to mention that AICTE Regulations 8(4)(e) notified whereby NOC from State Government was made mandatory with effect
from 20.11.2002. However, it is not in dispute that on 28.11.2005 AICTE notified to the effect that NOC from the concerned State Government
is not mandatory. The said Notification reads as under:
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI
NOTIFICATION
NEW DELHI, NOVEMBER 28, 2005
PROCEDURE FOR PROCESSING OF PROPOSALS FOR INSTRODUCTION OF ADDITONAL COURSES/INCREASE/VARIATION
IN INTAKE IN THE EXISTING TECHNICAL INSTITUTIONS
(A) The Regional Office shall in parallel, forward, within 15 days from the date of receipt of the proposal, one copy each of the proposals
complete in all respects to the concerned State Govt./Union Territories and Affiliating University for obtaining their recommendations within 30
days.
(b) The State Govts. and the Affiliating Universities, while forwarding the recommendations, shall provide reasons and justification to substantiate
their stand and do so by the date stipulated by the Council from time to time. The recommendations of the concerned State Government and the
Affiliating Universities shall be taken into consideration, among various other relevant factors, before considering the proposals for introduction of
new courses or programs and/or increase in intake and/or variation in the intake capacity. Obtaining No objection Certificate (NOC) by the
Applicant Institutions from the concerned State Government is not mandatory. The Council shall have the right to overrule the recommendations of
the State Government while deciding the matters of introduction of new courses or programs and/or increase in intake and/or variation in the intake
capacity.
In the light of the above discussion, legal position and notification of AICTE dated 28.11.2005; we hold that proviso to Section-5(ac) of the
Anna University Act, 1978 would not apply to an Institution covered by AICTE Act, 1987. As per the scheme of the Act, once recognition has
been granted by AICTE, the University is obliged to grant affiliation to such institution and proviso to Section 5(ac) does not apply to such cases.
Writ Petitions are disposed of on the above terms. In view of the disposal of W.Ps., Writ Appeals filed by the Education Department against
interim orders are dismissed. No costs. Connected Miscellaneous Petitions are closed.