IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1397/2007 Reserved on.12.9.2007 Decided on.14.9.2007 Dreamz College of Pharmacy and another. …Petitioners. Versus State of H.P. & others. …Respondents Coram The Hon’ble Mr. Justice V.K. Gupta, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ?1. yes. For the petitioner : Mr. R.L. Sood, Sr, Advocate with Mr. Vikas Rajput and Sanjeev Kumar, Advocates. For the respondents Mr. M.S. Chandel, Advocate General with Mr. J.K. Verma, Deputy Advocate General for respondent No.1 and 2. Mr. V.D. Khidta, Advocate for respondent No.3. Mr. S.R. Sharma, Advocate for respondent No.4 Per Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioners’ college i.e. Dreamz College of Pharmacy has been established by Dreamz Educational Society registered under the Societies Registration Act, 1860 (hereinafter referred to as the petitioner for brevity sake). The petitioner submitted an application to the regional office of the All India Council for Technical Education (hereinafter referred to as the AICTE) seeking approval to start a pharmacy college. The petitioner received a letter on 24.4.2006 from the respondent No.2 calling upon it to submit application in the prescribed proforma for grant 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 of no objection certificate. The AICTE sent a communication dated 9.5.2006 to the petitioner to remove certain deficiencies as pointed out in the communication. The petitioner informed the AICTE vide communication dated 8th March, 2007 that the deficiencies pointed out in the communication dated 9.5.2006 had been removed. Respondent No.4 i.e. AICTE addressed a letter dated 27.3.2007 to the Vice Chancellor of the respondent No.3 University soliciting its views in respect of the proposal of the petitioner for commencing B-Pharmacy Course for the academic session 2007-08. Respondent No.4 issued a letter of intent in favour of the petitioners on 25th May, 2007. Petitioner addressed communication to respondent No.3 University on 14th June, 2007 for grant of affiliation in its favour for commencing B-Pharmacy Course for the academic session 2007-08. The inspection team sent by the AICTE visited the petitioner college on 10th August, 2007 for grant of approval. The inspection was carried out by the duly constituted committee and consequently the letter of approval was issued in favour of the petitioner on 14th August, 2007. Petitioner sent a communication to respondent No.3 University on 23rd August, 2007 enclosing a demand draft of Rs. 50,000/- as inspection/affiliation fee. In sequel to letter dated 23rd August, 2007, respondent No.3 had requeuested the petitioner to send another bank draft of Rs. 50,000/- in favour of the Finance Officer, H.P. University alongwith ‘NOC’ of the Government for the academic session 2008-09 and in the absence of ‘NOC’ issued by the State Government, the grant of affiliation to start B- Pharmacy Course for the academic session 2007-08 could not be considered. Mr. R.L. Sood, Sr. Advocate had strenuously argued that the University could not withhold the affiliation after the approval accorded in 3 favour of the petitioner on 14th August, 2007. He also contended that the All India Council for Technical Education Act, 1987 and the Regulations framed thereunder will prevail over the provisions of the H.P. University Act, 1970 and the State could not insist for obtaining the ‘NOC’ from it. The learned Advocate General submitted that for maintaining higher standards in education it was imperative for the petitioner to obtain ‘NOC’ from the State Government. Mr. V.D. Khidta, Advocate appearing on behalf of the respondent- University submitted that the affiliation could be granted only after the petitioner had annexed with the application “NOC” from the State Government since the petitioner had failed to produce the “NOC”, the affiliation could not be granted and to that effect the petitioner had already been informed vide communication dated 30th August, 2007 and the University can only consider the case of the petitioner for grant of affiliation for academic session 2008-09 with a rider that the application should be accompanied with the ‘NOC’ issued by the State Government. Mr. Khidta also submitted that the counselling was over on 14th August, 2007 and no admission can be made after the date prescribed. Mr. S.R. Sharma, Advocate submitted that the approval has been accorded to the petitioner strictly as per the provisions of the AICTE Act and the University has to grant affiliation. I have heard the learned counsel for the parties and perused the record. The following points arise for consideration in this petition on the basis of the rival submissions of the learned counsel for the parties: 1. Whether the provisions of the All India Council for Technical Education Act, 1987 occupied the field and was it necessary for the petitioner to obtain the ‘NOC’ 4 from the State Government for the purpose of affiliation? 2. Whether the University should have granted the affiliation to the petitioner’s institute merely on the basis of the permission accorded by the All India Council for Technical Education dated 14th August, 2007? 3. Whether the University can validly refuse to permit the institute to start the course after the counselling was over on 14th August, 2007? Before the afore-mentioned points are taken up for consideration in detail, it will be apt to consider the relevant provisions of All India Council for Technical Education Act, 1987 (hereafter referred to as the Act). The All India Council for Technical Education Act, 1987 has been enacted by the Parliament for the establishment of an All India Council for Technical Education with a view to the proper planning and co- ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system. Chapter-III of the Act deals with powers and functions of the Council. Section 10 enumerates the functions to be discharged by the Council which read thus: “10. It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council - (a) undertake survey in the various fields of technical education, collect data on all related matters and make 5 forecast of the needed growth and development in technical education; (b) co-ordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grant on such terms and conditions as it may think fit to- i. technical institutions, and ii. Universities imparting technical education in co- ordination with the Commission; (d) promote innovations research and development in established and new technologies, generation, adoption and adaptation of new, technologies to meet developmental requirements and for overall improvement of educational processes; (e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society; (f) promote an effective link between technical education system and other relevant systems including research and development organizations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability; (h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers; (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; (j) fix norms and guidelines for charging tuition and other fees; 6 (k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned; (l) advice the Central Government in respect of charter to any professional body or institution in the filed of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates; (m) lay down norms for granting autonomy to technical institutions; (n) take all necessary steps to prevent commercialization of technical education; (o) provide guidelines for admission of students to technical institutions and Universities imparting technical education; (p) inspect or cause to inspect any technical institution; (q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council; (r) take steps to strengthen the existing organizations and to set up new organization to ensure effective discharge of the Council’s responsibilities and to create positions of professional, technical and supporting staff based on requirements; (s) declare technical institutions at various levels and types offering courses in technical education fit to receive grants; (t) advice the Commission for declaring any institution imparting technical education as a deemed University; (u) 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 Commission or to the 7 other bodies, regarding recognition or derecognition of the institution or the programme; (v) perform such other functions as may be prescribed. Section 22 empowers the Central Government to frame the Rules to carry out the purposes of this Act. Section 23 empowers the Council to frame regulations for better regulation of the profession and practice of pharmacy. The Legislative Assembly of Himachal Pradesh has enacted the Act called “The H.P. University Act, 1970”. Section 32 deals with conditions for affiliation. Statute 16 of the First Statute of the H.P. University Act, 1970 deals with affiliation privileges of the University. The same reads thus: (1) Colleges and other institutions within the limits of Himachal Pradesh may be admitted to such privileges of the University as the Executive Council may decide on the following conditions namely:- (i) Every College or institution seeking privilege of affiliation or association shall have regularly constituted management, consisting of not more than twenty persons of which the composition shall be as provided in H.P. University Ordinances. The rules pertaining to all matters concerning the working and the management of the college/institution and those relating to the personnel of the management shall conform to the Statutes and the Ordinances of the University as also to the conditions of the Government grants. Such rules and personnel will require the approval of the Executive Council; Provided that the college and institutions admitted to the privileges of the university under Section 7 of the Act shall adopt the rules regarding the constitution of the management within one year of the enforcement of the Act. 8 Provided further that the said condition shall not apply in the case of colleges and institutions maintained by the Government which shall, however, have an Advisory Committee which shall consist of among others, at least three teachers including the Principal of the college or institution, and two representatives of the University. (ii) As a condition of affiliation/association and continuation of affiliation/association, management of every such college or institution shall satisfy the Executive Council in the following points, mainly:- a) that the college or institution is established on a permanent and sound footing; b) that it has the requisite land and buildings or funds necessary to acquire or construct the same; c) adequacy of equipment for teaching; d) adequacy of teaching staff, its qualifications and conditions of service; e) adequacy of arrangements for the residences, welfare, discipline and supervision of students; f) that an adequate financial provision is available for its efficient maintenance and functioning in the form of an endowment or a promise of grant-in-aid from the State Government or both; and g) such other matters as are essential for the maintenance the standards of University education. (iii) No college or institution shall be admitted to any privileges of the University except on the recommendations of a Committee of Inspection as may be provided in the Ordinances. (iv) Organizations/colleges and institutions desirous of admission to any privileges of the university shall be required to intimate their intention to do so in writing so as to reach the Registrar not later than the date, as may be provided in the ordinances. 9 (v) A college may not, without the permission of the Executive Council, suspend instruction in any subject or course of study which it is authorized to teach and teaches. (vi) The University will consider the request of any private college/institution only after the concurrence of Government is received and attached with the application for grant of affiliation/association. (2) Appointments to the teaching staff of such college or institution shall be made on the recommendation of a Selection Committee as provided by the Ordinances: Provided that the provisions of this clause shall not apply in the case of college and institutions maintained by the Government. (3) Every such college and institution shall be inspected once every year for the first three years following the grant of privilege of affiliation/association and thereafter at least once every two years by a committee consisting of a nominee of the Chancellor, who shall be the Chairman thereof, Dean(s) of Faculty (ies) concerned and a nominee of the Vice- Chancellor. The report of the Committee shall be submitted to the Vice-Chancellor who shall forward the same to the Executive Council with any observations and recommendations as he may deem fit. The Executive Council, after considering the observations and recommendations of the Vice-Chancellor shall cause a copy of report of the Committee to be forwarded to the management of the Institution or college for such action as it may be pleased to direct. (4) The Executive Council may withdraw any privileges granted to a college or institution if at any time it considers that the college or institution is not fulfilling the requisite conditions; Provided that before any privileges are so withdrawn the management shall be given an opportunity to represent to the Executive Council why such action shall not be taken. (5) Subject to the conditions set forth above, the Ordinances may prescribe such other conditions as may be considered 10 necessary and also the procedure for the admission of the colleges and institutions to the privileges of the University and for the withdrawal of these privileges. The University has also framed Ordinances dealing with the affiliation and recognition of the Colleges and Institutions. Ordinance 38.2 being relevant is reproduced as under: 38.2. Every application for affiliation or recognition of a new college or for starting courses of instruction in a new Faculty must reach the Registrar not later than the 30th June of the year preceding that in which the college or institution is proposed to be affiliated or recognized; Provided that the Vice-Chancellor may allow an application to be entertained upto the 31st December of the year preceding the year in which the affiliation or recognition is sought, if he is satisfied that the necessary buildings, playgrounds, hostel facilities, equipment, library and furnitures exit or can be made available before the start of the academic session. Ordinances 38.6 (h) and (i) provide that the concurrence of the Government stating clearly that the case of the institution be pursued by the university for grant of affiliation/extension of affiliation. Ordinance 38.6 (h) and (i) read thus: 38.6 (h) a statement showing the financial resources of the college, including income from different sources, under the heads fees, interests on endowment fund, rent from property, if any, donations, if any, grants expected to be received from various quarters together with the basis on which such grants have been estimated, and any other source of income as also a statement of the estimated annual income and expenditure; 11 (i) “The concurrence of Government stating clearly that the case of institution be pursued by the university for grant of affiliation/extension of affiliation.” Points 1 to 3: Since all the three points are inter-connected, therefore, they can be conveniently discussed together. The All India Council for Technical Education Act, 1987 has been enacted by the Parliament under Entry 66 of List 1 of Schedule VII of the Constitution of India to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system throughout the country. The petitioner had submitted an application to All India Council for Technical Education. The application was processed and the deficiencies pointed out were removed by the petitioner. The Council had also sent a communication to the University on 27th March, 2007 calling upon it to forward the views within 30 days from the receipt of the proposal. The petitioner had taken up the matter with the University on 14th June, 2007 for granting of affiliation and also entered into correspondence with the University after the receipt of the approval from the All Indian Council for Technical Education on 23rd August, 2007. The case of the petitioner for grant of affiliation has been rejected for academic session 2007-08 only on the ground that the petitioner had not enclosed the copy of ‘NOC’. Once the field is occupied under Entry No.66 of List 1 of Schedule VII of the Constitution of India under which the Central Act i.e. “ the All India Council for Teacher Technical 12 Education Act, 1987” has been framed, the State Government has no role to play. The insistence of the ‘NOC’ by the State as well as by the University was without any authority of law. The question whether the State-University could encroach upon the occupied filed as per the provisions of the All India Council for Technical Education Act, 1987 is no more res integra in view of a very exhaustive judgments of the Hon’ble Supreme Court in 1995 (4) SCC 104. Their Lordships while dealing with All India Council for Technical Education Act, 1987 vis-à-vis T.N. Private Colleges (Regulation) Act and Rules and Madras University Act in State of T.N. and another Versus Adhiyaman Educational & Research Institute and others, (1995) 4 SCC 104 have held as under: “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. Under Section 10 of the Central Act, it is the Council which is entrusted with the power, particularly to allocate and disclose 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 13 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 de- recognition 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 under Section 10 of the Central Act.” Shri P.P.Rao, the learned counsel appearing for the appellants, however, contended that while it may be open for the Council to lay down the minimum standards and requirements, to achieve the object as mentioned in Entry 66, it does not debar the State from prescribing higher standards and requirements while making a law under Entry 25 of List III. According to him, further, that is what both the State Act and the University Act purport to do. He, further, contended that the University has an exclusive power to affiliate or not to affiliate and to disaffiliate the colleges. That power cannot be taken away by the Central Act and in fact, it has not done so. 14 As pointed out earlier, so far as technical institutions are concerned, the norms and standards and the requirements for their recognition and affiliation respectively that the State Government and the University may lay down, cannot be higher than or be in conflict and inconsistent with those laid down by the Council under the Central Act. Once it is accepted that the whole object of the Central act is to determine and coordinate the standards of technical education throughout the country, to integrate its development and to maintain certain standard in such education, it will have to be held that such norms, standards and requirements etc. will have to be uniform throughout the country. Uniformity for the purposes of coordinated and integrated development of technical education in the country necessarily implies a set of minimum standards the fulfillment of which should entitle an institution and its alumni, titles, degrees and certificates to recognition anywhere in the country. It is true that the higher than the minimum standard implies compliance with the minimum standard. But as has been aptly pointed out by Justice Rau while dealing with the meaning of repugnancy in G.P.Sterwart v. Brojendra Kishore Ray Chaudhury which is a decision approved by this Court in Tika Ramji v. State of U.P. “It is sometimes said that two laws cannot be said to be 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 cases of repugnancy where 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”. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one; yet it is 15 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. This was the type of