IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/06/2003 CORAM THE HONOURABLE MR. JUSTICE K. SAMPATH Writ Petition No.34811 of 2002 and W.P.Nos. 40931, 41707, 43908 to 43916, 44053, 44196, 44053, 44054, 44163 to 44173, 44441, 44442, 44491, 44492, 44583, 44 605, 44681, 44682, 44933 to 44937, 45149, 45160, 45364, 45374 to 453 76, 45614, 45638, 45795, 45892, 46056, 46063, 46065, 46095, 46096 to 46098, 46142, 46164, 46184, 46207, 46379 to 46383, 46421, 46428 to 46432, 46440 & 46441, 46520, 46547, 46633, 46634, 46757, 46867 to 46869, 46920, 46953, 46959, 46960, 47042 to 47045, 47096 to 47101, 47 124 of 2002 201, 203, 233, 234, 282, 458, 712, 715, 717, 718, 734, 779, 780, 85 2, 919, 1042, 1043, 1188, 1189, 1204, 1233, 1349, 1385, 1393, 2137, 2 317, 2794, 2795, 5045, 5046, 5432, 5816 to 5823, 5834, 5835, 6411, 6 831, 6832, 7391, 7392, 7473, 13178, 13179, and 13255 of 2003 WP No.34811 of 2002 $Southern India Educational Trust rep by its Secretary S.M. Kamaluddin Fakhri 54-K Bharathidasan Salai Teynampet Chennai 18. .. Petitioner -Vs- The All India Council for Technical Education rep. by its Adviser (E&T) Indira Prastha Estate Indira Gandhi Sports Complex New Delhi. .. Respondent !For Petitioner in WP 34811/02 :: Mr. M. Muniruddin Sheriff ^For AICTE in all Wps :: Mr. Vijay Narayan Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. :O R D E R The writ petitions, in substance, challenge the validity of amended Regulation 8(4)(e) of the All India Council for Technical Education Act (AICTE for short) as published in Gazette of India, dt.25.11.200 2 - the condition requiring No Objection Certificate (NoC for short) from the State Government as advertised in August, 2002, calling for applications for approval of new colleges and additional courses; and, the order of the Anna University refusing to consider the application for affiliation on account of want of NoC from the State Government. 2. Amended Regulation 8(4)(e) says that unless NoC from the State Government is enclosed to the application, the claim for approval to start an engineering college or for additional courses, will not be entertained. According to the petitioners, Regulation 8(4)(e) is totally unnecessary. The State Government has no role to play in the matter of starting of new institutions or inclusion of new courses. 3. Mr. R.Krishnamoorthy, Senior Counsel, leading the arguments made elaborate submissions. Mr. K.Duraiswami, Mr. Mohan Parasaran, Senior Counsel, Mr. Jeevarathnam, Mr. Pl.Narayanan, Mr. Natarajan, Mr. Sureshkumar, Mr. Zaffarullah Khan, besides adopting the arguments of Mr. Krishnamoorthy, also raised other contentions. All the arguments advanced are considered together. Individual submissions will be referred to whenever and wherever necessary. According to counsel: 3.1 State Government, by reason of the amended Regulation of 8(4)(e), will be exercising powers which are not meant to be exercised by the State Government. By reason of the insertion of "higher education" in Entry 66 of List 1 after deleting Entry 25 from List II and by replacing "Education" in Entry 11 of List II, the Supreme Court and various High Courts have been repeatedly holding that the State Government has no jurisdiction in the matter of establishing and administering technical institutions, and in those circumstances, insisting on NoC from the State Government is absolutely without jurisdiction; as per the amendment under challenge, NoC of State Government is a condition precedent for entertaining the application and on failure to comply with the condition of production of NoC for starting a new College, no hearing will be provided to the applicant; it is also stated that NoC from the affiliating University is a further requirement to consider the claim for approval by the Committee; thus, the amended provision confers power upon the State Government to decide the eligibility of a particular applicant even to apply for starting of a new college which is ultra vires the Constitution and illegal for the following reasons: 3.1.1. (a) Legislative function is sought to be delegated to another body contrary to the dicta laid down by the Supreme Court in - State of Tamil Nadu v.. Adhiyaman Educational Institute (1995 (4 ) SCC 104) Thirumuruga Krupananda Variyar & Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v.. State of Tamil Nadu (1996 (3) SCC 15) Jaigokul Educational Trust v.. commissioner & Secretary to Government, Higher Education Department (2000 (5) SCC 231). (b) It offends the dictum laid down in TMA Pai Foundation Case, 200 2 (8) SCC 481 : 2002 (8) SCALE 1, that everyone has a fundamental right to establish an educational institution. (c) Approval is legislative in character. It cannot be delegated by the AICTE in favour of an outside Agency. (d) There is abdication of power beyond the scope of the provisions of the Act, and the same is unguided, irrational, ultra vires and suffers from excessive delegation. In the submission of the counsel; a perusal of Section 14 of the Act r/w Regulation 8(4)(a) to (e); Regulation 8(6) and Regulation 9 will show that a detailed procedure is provided to have all kinds of assistance and to collect necessary information to submit recommendation by the Regional Committee. The Regional Committee is the competent authority conferred with jurisdiction to issue a Viability Certificate. Regulation 9 makes it clear that the Regional Committee and Board of Studies alone are considered to be the Agencies of the AICTE. By virtue of the amendment, the power and functions of the statutory authority namely the Regional Committee has been usurped and illegally conferred upon the State Government. Even in the absence of the impugned amendment, the State Government authorities such as Director of Technical Education, Secretary to Government, University, etc. have their due role in making recommendations and there is the right to deliberate by the Regional Committee or the Board of Studies as the case may be. The impugned amendment is, therefore, invalid. (e) It is arbitrary, irrational and there is no nexus: In view of the existing provision, there is no jurisdiction warranting NoC from the State Government that too as a pre-condition to entertain the application. (f) It is beyond the scope of Secs.20 & 23 of the AICTE Act: The Central Government alone is the competent authority to evolve policy and the Council is bound by the decision. Hence, the reason that it is a policy resolution of the AICTE, cannot be countenanced. The Regulation making power as provided under Section 23 should not be inconsistent with the provisions of the AICTE Act. In the instant case, the power of the Regional Committee has been taken away. (g) The impugned policy decision of the Government of Tamil Nadu not to permit establishment of any new Engineering College for providing degree courses in Engineering or granting permission for increase in the intake of admission, on wholesale basis, is totally unreasonable and violates Articles 14 and 19(1)(g) of the Constitution of India. The State Government does not possess any power to take a wholesale policy decision, and it would be unconstitutional for the following reasons: (i) The policy decision would be beyond the legislative competence of the State as it will have a direct and inevitable impact on the powers of the Union as delineated in Entry 66 List I to the VII Schedule of the Constitution of India. (ii) The power of the State Government is found in Entry 25 of List III - Concurrent List, and this power can be exercised subject to the provisions of Entries 63, 64, 65 and 66 of List I to the VII Schedule of the Constitution of India. Section 10(k) of the Act has already occupied the field in so far as it envisages and empowers the AICTE to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. The expression 'in consultation with the agencies concerned' would imply that the ultimate power for grant of approval only vests with the AICTE; but the only duty that is envisaged on the part of the AICTE is that it should consult the agencies concerned before grant of approval. Regulation 8(4)(e) in so far as it seeks to make it as a pre-condition to obtain the State Government's NoC for the purpose of establishment of new engineering colleges or technical institutions tantamounts to the AICTE virtually abdicating its powers to grant approval, to the State Government. Consequent on the alleged universal policy decision stated to have been taken by the Tamil Nadu Government, the AICTE is disabled to grant any approval and has virtually abdicated its function in favour of the Tamil Nadu Government, and to that extent, Regulation 8(4)(e) is inconsistent with the provisions as contained in Section 10(k) of the AICTE Act. By forbidding establishment of new engineering colleges, two different classes have been created, viz., existing institution in whose favour a sort of monopoly is created with those institutions being protected by the State which through its policy decision is not allowing any other new engineering college or technical institutions to be set up. This is violative of Articles 14 and 19(1)(g) of the Constitution of India. (iii) In TMA Pai Foundation's case, imparting education has been elevated to the status of 'occupation' as opposed to a trade, profession or calling. There can be no commercialisation of education and many States have passed enactments prohibiting capitation fees. In those circumstances, it cannot be said that there is any element of profit, except to the extent as indicated in the TMA Pai Foundation's case. No law can be passed by the State prohibiting the establishment of the legitimate occupation in the form of starting of new engineering college or technical institution. It is not the case of the Government that State monopoly is going to be created for establishment of colleges only by the State so as to save any such policy under the provisions as envisaged in Article 19(6)(ii) of the Constitution of India. Such an universal policy decision would strike at the very root of linguistic or religious minorities which have a fundamental right to establish educational institutions of their choice on a combined reading of both Articles 29 and 30 of the Constitution of India, be it aided or unaided. Any such policy is contrary to the decision of the Supreme Court in SHIVAJI UNIVERSITY v.. BHARATHI VIDYAPEETH, AIR 1999 SC 1762. (iv) Further, Article 51(A)(h) envisages that every citizen has a fundamental duty to develop the scientific temper, humanism and spirit of inquiry and reforms. Article 51(A)(j) also mandates to strive towards excellence in all spheres of individual and collective activities so that the nation constantly rises to higher levels of endeavour and achievement. If the policy decision of the State Government is upheld, then even the state-of-the-art institutions having facilities even superior to that of IIT will not be able to establish an engineering college in Tamil Nadu. The above said policy decision is not in public interest and therefore is unreasonable. The existing engineering colleges become a favoured entity. There is discrimination and it is contrary to Article 19(1)(g) and the law declared by the Supreme Court in KRISHNAN KAKKANTH v.. STATE OF KERALA, 1997 (9) SCC 495 . (h) Section 10(k) of the Act talks about 'consultation with the agencies concerned'. Therefore, NoC granted by the State Government cannot be treated as a mandatory condition but a mere recommendation not binding on the AICTE and this upheld by the Supreme Court in JAI GOKUL EDUCTION TRUST's case [2000(5) SCC 235]. The State Government cannot unilaterally increase admissions in institutions such as medical colleges or dental colleges - like Medical Council of India Act and Dental Council of India Act. The State Government cannot fix any intake of students nor can seek to grant permission for establishment of new engineering colleges without reference to the AICTE. But the Universities have a right to start new engineering colleges even without the permission of the AICTE, but subject to complying with the norms of the AICTE [BHARATHIDASAN UNIVERSITY & ANOTHER v.. the AICTE, 2001(8) SCC 676, MEDICAL COUNCIL OF INDIA v.. STATE OF KARNATAKA, AIR 1998 SC 2423, STATE OF MAHARASHTRA v.. MEDICAL COUNCIL OF INDIA, 2002 (1) SCC 589]. The effect of the policy decision not to establish new colleges would make the State Government master and the AICTE a mute spectator. This is totally disproportionate, unreasonable and violative of Articles 14 and 19(1)(g) of the Constitution of India, OMKUMAR & OTHERS v.. UNION OF INDIA [20 01(2) SCC 386] and STATE OF MAHARASHTRA v.. INDIAN MEDICAL ASSOCIATION [AIR 2002 SC 302]. (i) Anna University has also not acted independently notwithstanding the fact that it is well established that the University being an autonomous institution, is not bound by any policy decision taken by the State Government and it has to decide on the question of grant of affiliation on the basis of reasonable norms which are not in conflict with the AICTE prescription. The State shall have no role to play in this. In ADHIYAMAN ENGINEERING COLLEGE's case [1995 (4) SCC 104] the Supreme Court struck down the provision in the University Act which requires obtaining of prior permission from the State Government for purposes of grant of affiliation as being contrary to the AICTE Act. The AICTE Act is a Union legislation and it is very unreasonable that by introducing Regulation 8(4)(e), the spirit and effect of the judgment of the Supreme Court interpreting Section 10(k) of the AICTE Act is sought to be nullified or whittled down. The amendment is a colourable exercise of power and vitiated by legal mala fides, as would be evident from the conduct of the AICTE. The regulations seek to affect the legitimate expectations of many parties and trusts which have proceeded to put up constructions only on the basis of the communications received from the ACITE, which was ready to send the inspection teams to certain colleges which have applied even during 2000-2001 and subsequently for grant of approval for 2003-04. St. John's case [2003 (1) SCALE 757] has no application to the facts of the present case. 3.1.2. Mr. K. Doraiswami referred to TMA PAI FOUNDATION v.. STATE OF KARNATAKA, 2002 (8) SCC 481 : 2002 (8) SCALE 1, and submitted that conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions, that all education should be liberal and that each state if allowed to have its own policy, uniformity will be lost. 3.1.3. Mr. Mohan Parasaran relied on TMA Pai Foundation's case - Paras 1, 5, 18 to 20, 23, 24 and 26, 35, 36, 39, 54, 55, 57, 62 to 67. The learned Senior Counsel contended that the State Government does not say that public order, morality and health are affected. Facilitator cannot take a policy decision. 3.1.4. Mr. Jeevarathnam submitted that advertisement at the request of the State Government had been made and the AICTE does not act on its own. 3.1.5. Mr. Natarajan submitted that notification is beyond the power of the Act. He referred to the functions of the council and submitted that only consultation and not concurrence is required from the State Government. He relied on Supreme Court Advocates on record Association & others v.. Union of India, etc., 1993 (4) SCC 441; Indian Administrative Services (SCS) Association, U.P., and others v.. Union of India & others, 1993 Supp. (1) SCC 730 para 26. 3.1.6. Mr. Sureshkumar relied on the Regulations in St. John's case relating to National Council for Teacher Education (NCTE for short) and submitted that the safeguard is introduced in the amended Regulation and the Supreme Court has stated that the endorsement itself may be considered, and that there are several distinguishing features between the two Acts. 3.1.7. Mr. Zaffarullahkhan submitted that - the principle of legitimate expectation is attracted, that because of the shift in the policy the people who had complied with the AICTE requirements are seriously affected; NoC is only recommendatory in nature; when Kamaraj University has recommended, the AICTE cannot insist on NoC from the State Government. 3.1.8. Mr. Pl.Narayanan relied on STATE OF TAMIL NADU v.. ADHIYAMAN EDUCATIONAL & RESEARCH INSTITUTE, 1995 (4) SCC 104, paragraphs 30 & 32, GOVERNMENT OF ANDHRA PRADESH v.. GVK GIRLS HIGH SCHOOL, AIR 20 00 SC 2651, JAIGOKUL's case (supra) and ST. JOHN's case (supra) and submitted that applications already submitted and in the process of evaluation should not be rejected on the ground of non-production of NoC in view of the amended regulation. 4. The points raised in the counters and the submissions made by Mr. Vijay Narayanan learned counsel for the AICTE are as follows: On 20.11.2002, in exercise of the powers conferred by Section 10(k) read with Section 23 of the AICTE Act, the AICTE Regulations 199 4 came to be amended and Regulation 8(4)(e) was introduced. The AICTE had also issued policy resolution, dt.20.11.2002, published in the Gazette of India (Extra Ordinary), and the policy resolution is as follows: "The Executive Committee of the AICTE has taken certain important policy decisions and pursuant to such decisions, the AICTE is determined to implement all these decisions which form the basis of this resolution, from the Academic Year 2003-04 onwards. (i) Any proposal for establishment of the new technical institutes or increased intake or additional programmes has to be supported by No Objection Certificate (NoC) of the concerned State Government/UT Administration. The proposals without the NoC shall not be considered by the AICTE at any stage and such proposals shall stand rejected." As a matter of policy the AICTE requires NoC from the State Government/UT. The policy is the result of the experience gained by the AICTE over the years in administering the Act and the Regulations and earlier as a non-statutory body. A large number of private Engineering Colleges and Polytechnics had come up with a complete disregard of the guidelines laid down by the AICTE as a non-statutory body. Most of the institutions have serious deficiencies in terms of rudimentary infrastructure necessary for imparting education and training. Earlier, though a number of colleges were set up in the Private Sector, the demand for seats in professional and non-professional courses far outstripped the supply of such seats. However, in course of time, the private Engineering Colleges and Polytechnics, which had come up, did not conform to the requirements, and the AICTE came to the conclusion that it should be vested with statutory powers to regulate and maintain the standards of technical education in the country. A national Working Group was set up in November 1985, which recommended that the AICTE should be vested with statutory authority. Similarly, the National Policy of Education, formulated in 1986, also stipulated that the AICTE should be vested with statutory authority. Act 52 of 19 87 came to be passed giving statutory status to the AICTE. Section 1 0(k) gives power to the AICTE to grant approval for starting new Technical Institutions and introduction of new courses or programmes in consultation with the agencies concerned. In exercise of this power as well as the powers under Section 23 of the Act, the AICTE has made Regulations. As per Regulation 4, no new technical institution shall be started, new course or programme shall be introduced, and no approved intake shall be increased or varied except with the approval of the Council. Regulation 8 sets out the scrutiny of applications and Regulation 8 (1), (2), (3), (4), (5) & (6) are the relevant regulations. The agencies concerned have been specified in the Regulations as the University concerned, the Directorate of Technical Education, the State Government, the University Grants Commission and the Local Inspection Committee. Each of these agencies has a vital role to play in the grant of approval. Their views have to be taken into consideration for grant of approval. In the recent past, it has been noticed by the AICTE on the basis of various statistics collated by it that in some States, the number of Colleges and the seats offered by them far exceed the actual demand for such colleges and seats. There were discussions held by the AICTE. As a result of which, it was felt that if a College is not able to fill up the seats to the extent of its sanctioned intake, it would not be in a position to maximize its revenue and hence it would not be in a position to reinvest money in supporting the existing infrastructure and in creating additional and better infrastructure for the benefit of its students. This was felt to be a major factor leading to the deterioration in the standards of the Institutions. As an Apex Regulatory body, it is not practically possible to know in minute detail the ground level reality in each State as far as the demand for seats is concerned. Only the State Governments are in a position to decide the need for additional seats. Thus, while the AICTE decides the norms and standards for approval, the AICTE itself considers that the need for additional seats, colleges and infrastructure in education could be left to the State Governments concerned who would be in a better position to assess these matters. The result of these discussions is reflected in the new policy of the AICTE that the State Government concerned or U.T. should be actually involved in the process of deciding whether any new technical institution or course should be started in the State concerned. The essential functions of the AICTE are not abdicated by this. It continues to retain with itself the right to determine the norms and standards of technical education and grant approval. This is a policy decision which cannot be stated to be arbitrary, perverse or illegal. Wisdom of the policy cannot be questioned under Article 226 of the Constitution especially when the policy has been laid down by an Expert Body for regulating the norms and standards of technical education. 4.1 ADHIYAMAN COLLEGE's case and JAIGOKUL TRUST's case will not apply to the present situation. In those cases, the State Governments or Universities concerned claimed the right to control the establishment of a new Technical Institution or Course without the approval of the AICTE and in such circumstances, the Supreme Court held that after the enactment of the Act, the field of higher Technical Education had been taken over by the Act and therefore, it was no longer open to any State Government or University to assert that it should give a NoC for the establishment of a new technical institution. The situation at present is exactly the opposite. The AICTE has taken a decision as reflected in the Regulations that every applicant should submit NoC from the State Government or the U.T. concerned. This is a requirement stipulated by the AICTE and it has been well within its right. In those earlier decisions, there was no such stipulation by the AICTE. It is a matter of policy and in this policy, in the absence of any perversity or arbitrariness, the Court cannot interfere. It cannot also be assumed that the State Government would act arbitrarily. In any event, if there is any arbitrariness in the exercise of power in individual cases, the parties concerned would have the right to approach the Court for redressal. The grant of approval cannot be stated to be legislative in character, and it is only administrative. The approval process is not granted by the AICTE to the State Government. the AICTE undertakes the process of approval at every stage and the ultimate order of approval or rejection, as the case may be, shall be passed only by the AICTE. This power, to grant or reject, has not been delegated by the AICTE to anybody. The AICTE is entitled to direct the applicant to produce certain documents or other requirements