- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Manoj Singh vs. 1. State of Rajasthan 2. Jai Narain Vyas University 3. The Council of Architecture D.B.CIVIL SPECIAL APPEAL NO.292/2007 in S.B.CIVIL WRIT PETITION NO.6560/2005 & S.B.CIVIL WRIT PETITION NO.6560/2005 DATE OF JUDGMENT : 4th December, 2007 P R E S E N T HON'BLE MR.JUSTICE RAJESH BALIA, Actg.C.J. HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.M.Mridul Sr.Advocate assisted by Mr.Ashok Choudhary, for the appellant. Mr.D.C.Sharma, for the respondent no.2. Mr.Naveen R.Nath,] Mr.B.V.Thanvi, ] for the respondent no.3. BY THE COURT: (PER HON'BLE RAJESH BALIA, Actg.C.J.) This writ petition was preferred in 2005 in the circumstances we shall presently notice. After being heard by two learned Single Judges after admission, and once judgment was reserved but the petition was not ultimately decided and when interim relief was refused by the learned Single Judge on 1/3/2007 and directed the petition to be heard in due course, this Special Appeal No.292/07 was preferred against the order dated 1/3/2007. - 2 - Looking to the nature of the controversy and urgency of decision & looking to importance of the issue raised, on the request of both the learned counsel the Division Bench passed the following order on 30/8/2007: “It is agreed by the learned Advocates appearing in this matter that the matter can be decided finally. Learned advocates for the respondents have stated before the Court that even though this appeal is filed against an interlocutory order of the learned Single Judge, this Court may decide the entire controversy arising in the matter so that the question can be thrashed out at the earliest as the point involved in the matter concerns many students and their future is also dependent on the decision of this Court in this appeal. Considering the said request of the learned counsel, we deem it proper to decide the matter finally instead of asking the appellant to go back to the learned Single Judge and argue the matter. Accordingly, this appeal be listed for final disposal on 12th September, 2007.” In the above circumstances, we have heard the learned counsel for the parties on the merit of writ petition itself to decide the same. Facts leading to this appeal are that Jai Narain Vyas University, Jodhpur is a University set up under the law enacted by State Legislature to set up a University at Jodhpur, under Jodhpur - 3 - University Act, 1962 lateron renamed as Jai Narain Vyas University. The University introduced a 5 years course for awarding a Bachelor's degree in Architecture in the year 1999. The appellant- petitioner was admitted to the course in the very first year of the commencement of new course and completed the 5 years course in 2004 and passed successive term examination of 5 years course. After passing the course, the appellant-petitioner was granted provisional certificate of degree of Bachelor of Architecture by JNV University, Jodhpur on 5th October, 2004. Thereafter, the petitioner filed an application for his registration as an Architect under the Architects Act, 1972 (hereinafter referred to as the Act of 1972) vide his application dated 3/12/2004 to the Indian Council of Architecture established under the Act of 1972. A reminder was also sent to the Council of Architecture for his registration. Since after acknowledging the receipt of application and reminder nothing happened. Successive reminders were issued on 15th April, 2005 and 19th September, 2005. The last one was by way of demand of justice. The notice dated 19th September, 2005 was responded by reply dated 30th September, 2005. Relying on Section 21 of the Act of 1972, it was stated that: “In order to declare a particular B.Arch qualification as recognized qualification under the Architects Act, 1972 and the Regulation framed - 4 - thereunder, the Architectural Education should be imparted in accordance with the provisions of the Regulations of 1983. This Minimum Standards of Architectural Education could be ensured only by inspection from time to time by the Council of Architecture. Unless and until physical inspections are undertaken by the Council for verification/examination of all matters connected with imparting of education and maintenance of Minimum Standards of Education, the same cannot be said that the institution is imparting an architectural education leading to award of Bachelor's Degree in Architecture carrying recognition under the Architects Act, 1972 and enlist in the Schedule of Qualification appended thereto.” With the aforesaid premise it was stated that since the Council had sought information under Section 18 and required inspection under Section 19 of the Act of 1972, but the University was not cooperating, the University has been already put under `no admission' category for the last five years by the Council. Since University had failed to comply with requirement the application of the petitioner has been kept in abeyance awaiting decision of a writ petition filed in Rajasthan High Court as D.B.Civil Writ Petition No.4466/2001, Suresh Kumar Khemka vs. State of Rajasthan and others, which is pending in Rajasthan High Court. This led to filing of present writ petition. Subsequent to rejection of prayer for interim relief vide order under appeal, the respondents have submitted an Addl.Affidavit - 5 - dated 9/10/2007 that said application of petitioner appellant for registration as Architect has been rejected as per the decision of Executive Committee of the Council at its 92nd meeting held on 10th September, 2007. About the writ petition No.4466/2001, Suresh Kumar Khemka vs. State of Rajasthan, we may notice that the writ petition was received as a PIL on a letter petition dated 10/10/2001 by one Shri Suresh Kumar Khemka, Vice President, Students Union, Faculty of Engineering, JNV University, Jodhpur against the Registrar, JNV University and Secretary, Department of Technical Education apprehending that Department of Architecture may be closed by the University. In the said writ petition, the Council of Architecture had made an application to be impleaded as party. The said writ petition was ultimately disposed of vide order dated 13/9/2005 as under:- “The only grievance raised raised in this petition in the form and shape of Public Interest Litigation is that there is apprehension that the University may close down the Faculty of Architecture. Mr.D.C.Sharma, learned counsel appearing on behalf of the University submits that they will not close down the faculty of Architecture without any prior permission of the Court. Considering the submission and assurance given by the learned counsel for the University, we direct that the Faculty of Architecture should not be closed by the University without any prior permission of the Court. - 6 - Accordingly, this petition stands disposed of.” It is contended by learned counsel for the petitioner that since Jai Narain Vyas University is a University established by an act of State Legislature, Bachelor's Degree in Architecture awarded by JNV University is a recognised qualification for the purpose of Act of 1972 in terms of Section 2 (d) read with Schedule annexed thereto. For the purpose of commencement of course of Architecture by any University established under the Legislative enactment, no prior permission is required under the provisions of the Act of 1972 but is a priori recognised qualification for enrolment in the register of Architects by the Council of Architecture constituted under the Act. In the case of University established under the Legislative enactment, the Council's jurisdiction to recognise the qualification for the purpose of registration is not a pre-condition. Such a recognition can be ignored for the purpose of giving registration only if recognition flowing from the Statute is withdrawn under the provisions of Section 20 by amending the Schedule. It is further contended that amending the Schedule is exclusively in the domain of the Central Government and until the Schedule is amended in accordance with provisions of the Act of 1972 in terms of Section 17, any recognised qualification in terms of Section 2(d) of the Act is sufficient qualification for enrolment in the register of Architects. It was pointed out that under Section 25 a person, who is a citizen of India and if he resides or carries on the profession of architect in India and holds the recognised qualification is entitled to have his name entered in the register. On this premise it is contended that - 7 - the respondent Council is not entitled to keep the application filed by the petitioner for entering his name in the register of Architects in abeyance and withhold the registration nor can it reject the same until the Bachelor's degree in Architecture issued by the Jai Narain Vyas, University is excluded from the list of recognised qualification by appropriate notification in accordance with the provisions of the Act and Regulation prescribed in furtherance of the Act. On the other hand, it is contended by learned counsel for the respondent Council that reason stated in the aforesaid communication for keeping the application of the petitioner in abeyance and subsequent rejection of his application was justified since the Council is responsible under Section 21 to prescribe & maintain the minimum standard of architectural education required for granting the recognised qualifications by colleges or institutions in India,the Registrar can decline to register any person if the standard of education imparted by any college or institution do not conform to minimum standard set by the Council. The architectural education imparted by Jai Narain Vyas University has not been recognised by the Council because the University is not cooperating in providing the inspection and furnishing of information to the Council as has been demanded by the Council in terms of Sections 18 & 19 of the Act of 1972. In the opinion of the Registrar the education imparted by the University does not accord with the minimum standard of the Architectural education prescribed by the Council and until the Council is satisfied about the standard of education imparted by the Jai Narain Vyas University, the Registrar - 8 - had necessary authority to decline to register the candidate in terms of Section 26 (2) read with Section 21 of the Act. Learned counsel also stressed that though under Entry 32 in the List II of Seventh Schedule setting up of a University and providing for its functioning may be in the exclusive domain of the State Legislation but under Entry 66 of List I Co-ordination & determination of standard in the Institutions of higher education or research and scientific and technical institutions is within the exclusive domain of the Parliament to provide for the same by statutory provisions. It was urged that since Architects Act, 1972 is an Act enacted by the Parliament, it is within the domain of the Act of 1972 to set up a Council to prescribe minimum standard of education in architecture, which the Council has prescribed and, therefore, to ensure adherence to that and control and regulate the same is within the domain of the Council. Learned counsel was at pains to explain the difference in two legislative fields. His contention was to the extent that notwithstanding a qualification of B.Arch may be recognised qualification in terms of Section 2(d) read with Schedule, the Council has jurisdiction to deny registration of any person holding B.Arch degree from any institution included in the Schedule even during the period of its continuance in the Schedule to fall within recognised qualification by holding its own opinion about minimum standard of education imparted by the institution. He also went on to contend that in view of these provisions unless the approval of the Council is obtained, no course - 9 - in architecture education can be commenced by any institution including the University established by a Statute after the commencement of the Act of 1972. He relied on the following decisions of Supreme Court: 1. Baldev Raj Sharma vs. Bar Council of India & Ors (AIR 1989 SC 1541) 2. Union of India & Ors vs. Shah Goverdhan L.Kabra Teachers' College. (2002 (8) SCC 228) 3. Bharti Vidyapeeth (Deemed University) & Ors. vs. State of Maharashtra & Anr. [ (2004) 11 SCC 755 ] 4. Sanjeev Gupta vs. U.O.I. (2005 (1) SCC 45) 5. Prof. Yashpal & Anr. vs. State of Chhattisgarh & Ors. ( 2005 (5) SCC 420) 6. State of Tamil Nadu & Ors. vs. S.V.Bratheep & others (2004 (4) SCC 513 ) 7.Medical Council of India vs. Rajiv Gandhi University of Health Sciences and others [2004 (6) SCC 76 ] 8. Dental council of India vs. Subharti KKB Charitable Trust & Anr. [ 2001 (5) SCC 486 ] Learned counsel for the petitioner rejoined that the question of demarcation of legislative powers under List I and List II has no bearing on the controversy raised in this petition inasmuch as no question has been raised about repugnancy between the two - 10 - legislations enacted by respective legislatures within their exclusive field of legislative power. He contends that the petitioner is seeking relief only in terms of Act of 1972 not outside it. The question is only to interpret the provisions of the Act of 1972 enacted by the Parliament whether it authorises Registrar not to grant registration in the case of B. Arch. Degree given by a University established under a legislative enactment? It is not in dispute that Jai Narain Vyas University is a University established under a legislation enacted by Rajasthan Legislature and therefore, the petitioner contends that in view of the provisions of the Act, degree granted by such University in B. Arch. do not call for any further recognition by any process of making application or otherwise from the Council and it is not required that its name be further included in the list of recognised qualification. The Council has only jurisdiction to make a report about standard of education imparted and infrastructure available in the case of any qualification included in the Schedule to the appropriate Government. Thereafter it is for the Central Government to take decision after holding such further inquiry as it deems fit whether to withdraw recognition. If the Central Government so decides, it can do so by amending Schedule by inserting therein that degrees awarded by any concerned institution is recognised only if obtained upto or before specified date. Until that is done the degree granted by the University in B. Arch. is a recognised qualification entitling the holder of such qualification to be enrolled in the register of Architects maintained by the Council. It is in this context a contention has - 11 - been raised that the respondents are obstructing the petitioner to carry on the profession of Architecture which he is entitled to take up and which vitally affects his freedom to carry on any occupation, trade or business guaranteed under Article 19(1)(g). We have given our utmost consideration to the rival contentions raised before us. Before proceeding further, we may deal with last question raised by the learned counsel for the respondents in the first instance. Apparently, learned counsel for the petitioner is justified in his submission that no question about repugnancy between the provisions of two enactments or the regulations framed by the Council and any provision of the State Legislation or Ordinance or Statute framed by the Jai Narain Vyas University having been raised, the question of examining the field of legislature of the two independent statutes really do not invite attention and the real question is whether in view of the provisions of the Act of 1972, the respondent Council and its Registrar has necessary power to withhold the registration of a candidate or reject such an application for registration, who holds B.Arch. Degree from a university established by a legislative enactment unless such recognition is withdrawn and is excluded from the List of recognised qualification by amendment in the Schedule in accordance with procedure laid down in the Act. Therefore, we need not dwell on this issue any further. - 12 - This takes us to notice relevant provisions of the Act of 1972. Section 2 is the definition clause and it defines recognised qualification under Sub-clause (d) as under:- “(d) “recognised qualification” means any qualification in architecture for the time being included in the schedule or notified under section 15.” Apparently under the Act the recognised qualification is either one which is included in the Schedule or is one notified under Section 15. This takes us to notice Section 15 which provides that:- “Central Government may, after consultation with the Council, direct by notification in the Official Gazette, that an architectural qualification granted by any university or other institutions in any country outside India in respect of which a scheme of reciprocity for the recognition of architectural qualification is not in force, shall be recognised qualification for the purpose of this Act or, shall be so only when granted after a specified date or before a specified date.” Under proviso (1) of Section 15 before issuing any Notification notifying any qualification as a recognised qualification under Section 15, the Council is required to be consulted and until the Council is constituted, the expert committee set up under the proviso to Sub-Section (2) of Section 14 is required to be consulted. - 13 - Thus, considering the definition and the provisions of Section 15 under which alone the notification of recognising any qualification is required to be issued clearly indicates the division of two types of recognised qualifications under the Act. Section 15 deals exclusively with recognition of qualification vide notification which are granted by University or other institutions situated outside India, in a country with which India does not have scheme of reciprocity for the recognition of architectural qualification. In other words, where a university or institution set up out of India in a country with which India has entered into a reciprocal agreement, the recognition of architectural qualification from such institution is to accord with the scheme of reciprocity, otherwise the qualification in architecture granted by the foreign institution in order to be recognised in India must be under the notification issued by Central Government after consultation with the Council. Section 15 has no application to qualification granted by any College, Institution or University in India. Apart from Section 15, which obviously relates to qualification issued by foreign institution, the qualification issued by any college, university or institution in India is a recognised qualification only if it is included in the Schedule appended to the Act of 1972 either along with the enactment or subsequently by amendment of the schedule by the Central Government under Section 16. Another provision in this connection which requires consideration is Section 14, which needs to be noticed in extenso, - 14 - which reads as under:- “14. Recognition of qualifications granted by authorities in India.- (1) The qualifications included in the Schedule or notified under Section 15 shall be recognised qualifications for the purposes of this Act. (2) Any authority in India which grants an architectural qualification not included in the Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the Schedule against such architectural qualification declaring that it shall be a recognised qualification only when granted after a specified date: Provided that until the first Council is constituted, the Central Government shall, before issuing any notification as aforesaid, consult an expert committee consisting of three members to be appointed by the Central Government by notification in the Official Gazette. Analysis of aforesaid provisions indicates that qualifications included in the Schedule are mandated to be recognised qualification for the purpose of this Act. In other words, - 15 - about them no question can be raised except in accordance with the provisions of the Act. Secondly, it also envisages that any authority in India which grants the Architectural qualification not included in the schedule and desirous of recognition of its qualification is to apply to the Central Government to have such recognitions. If such an application is made to the Central Government. It is then for the Central Government after consultation with the Council by Notification in the official gazette to amend the schedule so as to include such qualification therein. Significantly when a Notification is issued under Section 14 (2) for adding an entry in the schedule by amending it, such Notification has also to mention that it shall be recognised only when granted after a specified date that is to say while issuing a Notification under Section 14(2), the Central Government has to specify a date to indicate that the qualification granted after such date only shall be recognised if granted by such institutions included in Schedule by issuing a Notification in that regard. It is not envisaged that all qualifications given by such institution at any time prior to or after the Notification shall automatically recognised in the case of amendment of Schedule under Section 14(2). This provision has striking similarity of requirement with the provision which permits withdrawal of recognition which already existed in the Schedule or under Notification issued under Section 15. Specification of such date with effect from which the recognised qualification is withdrawn is equally essential under Section 20 so as to ensure that all recognised qualifications under the Schedule are - 16 - not automatically derecongnised on withdrawal of its qualification by its exclusion from the Schedule by amendment. Therefore, continuance of recognition once the qualification falls within the definition of recognised qualification or grant of recognition of qualification is an essential part of consideration in amending the schedule by adding new qualification or by withdrawing already recognised qualification. This indicates that once the qualification is included in the Schedule, its status as recognised qualification for the purposes of Act continues until amendment of the Schedule by the Central Government. Section 14 also reveals important feature of the Scheme of Act of 1972, unlike in the case of other Statutes governing professional qualifications, in that the power of recognising any course not already recognised by inclusion in the Schedule vest in the Central Government and in none else. Mere fact that Central Government has to consult the Council before recognising any course as a recognised qualification by amending the Schedule cannot detract from the fact that ultimate decision to recognise a qualification or not to recognise a qualification vest in the Central Government. It also manifests that expression of recognition of any qualification not included in the Schedule is expressed only by amending the Schedule. So also power to withdraw existing recognition also ultimately vest in Central Govt. And its manifestation has also to be by amending the Schedule. Council has not been given the ultimate authority over maintaining link between standard of education imparted in any institution and its - 17 - recognition. This authority vest in Central Govt. Alone. This will further be clear while considering Section 20 which we shall notice shortly. If in the light of these provisions, one sees the entry in the Schedule, the distinction between entry 1 in the Schedule and other entries becomes very clear. Entry 1 in the schedule reads as under:- “1. Bachelor Degree in Architecture awarded by Indian University established by an Act of the Central or State Legislature.” Entry 1 clearly indicates recognition of qualification in Architecture conferred by Universities as a class irrespective of the date of its setting up or the date of commencement of any course of qualification by such universities. Bachelor's degree in Architecture (B.Arch) by universities established by an Act of Central or State Legislature is a recognised qualification, a priori vigore. In contrast, all other entries in the Schedule are referable to individual institutions or colleges imparting education in B.Arch. Apparently, no other view is possible on reading of Section 2 (a) with Schedule that a B. Arch degree awarded by any University established by