CASE NO.: Special Leave Petition (civil) 14656 of 2000 PETITIONER: ALL INDIA SC & ST EMPLOYEES ASSN.& ANR. Vs. RESPONDENT: A. ARTHUR JEEN & ORS. DATE OF JUDGMENT: 12/04/2001 BENCH: S. Rajendra Babu & Shivaraj V. Patil JUDGMENT: WITH SPECIAL LEAVE PETITION (C) NO. 2377 OF 2001 J U D G M E N T Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J In these Special Leave Petitions, the judgment and order dated 10.4.2000 passed by the Division Bench of Madras High Court in Writ Petition Nos.16766-16772 of 1999, 17167, 17878, 18834 & 20598 of 1999 and 4064 of 2000 are under challenge. S.L.P. No. 14656 of 2000 is filed by the applicants in O.A. No. 93/99 before the Central Administrative Tribunal, Chennai Bench who were the respondents in the writ petition before the High Court. S.L.P. No. 2377 of 2001 is filed by the petitioners in W.P. No. 16766 of 2000 in the writ petition before the High Court. In short, the facts and events leading to filing of these Special Leave Petitions are :- The Railway Board issued Employment Notification No. 1 of 1995 dated 7.9.1995 inviting applications for 330 posts of Khalasis (Group-D) reserving 19% of posts for Scheduled Castes, 1% for Scheduled Tribes and 27% for OBCs besides 3% for Physically Handicapped and 20% for Ex-Servicemen. In response to the Notification, 58,675 applications were received, out of them 32,563 candidates were found eligible and called for interview. The Railway Board by its letter dated 17.5.1996 communicated its decision to prepare a panel for 917 vacancies on the ground of increase of vacancies from 330 to 917. The selection of candidates was to be made on viva voce test only. The candidates were interviewed from July 1996 to February 1997 by different committees. The composition of the committees was challenged in O.A. No. 28/1997 before the Central Administrative Tribunal, Chennai Bench. The Tribunal by its order dated 17.9.1997 struck down the Railway Boards instructions on the basis of which committees were constituted for interview. Thereafter the Railway board issued fresh instructions on 29.4.1998 for constituting committees as per para 179 of the Indian Railway Establishment Manual (I.R.E.M.). The second round of interviews were conducted afresh from 26.06.1998 to 28.09.1998 for 75 days by different committees. Out of 32,563 candidates, only 25,271 candidates appeared for the interview. Another O.A. No. 543/1998 was filed seeking direction that the course completed Act Apprentices should be given preference but the same was dismissed on 17.9.1998. Ultimately merit list was published on 22.12.1998 and a panel of 917 selected candidates was published in the newspapers on 30.1.1999. The candidates selected were informed about their selection. O.A. No.93 of 1999, O.A. No. 103 of 1999, O.A. No. 153 of 1999, O.A. No. 202 of 1999, O.A. No. 260 of 1999 and O.A. No. 294 of 1999 were filed before the Tribunal challenging the selection of the candidates. O.A. No. 367 of 1999 was filed by a selected candidate seeking direction to complete the process and to issue appointment. The respondents resisted these O.As. on the grounds that O.As. filed in the nature of PIL were not maintainable; the applicants could not be said to be aggrieved persons without showing whether they were members of the association and whether they applied for the said posts; all the material allegations contrary to their stand made in the O.As. were denied; that the Railway Administration did not give any particular direction or instruction in the matter of selection and that no mala fide practice was followed. It was also pleaded that there was no violation of settled procedure and guidelines; the selection was made on the basis of performance of the candidates in the viva voce; further there was no arbitrariness in the selection of candidates and that the procedure followed in the earlier selection made in 1989-90 was followed in the present selection as well. The Tribunal quashed the panel of selected candidates giving the reasons that number of vacancies originally notified were 330 but the panel of selected candidates had been drawn for 917 without earlier notifying the increase in vacancies; only 18 Physically Handicapped candidates had been selected instead of 27 candidates on the basis of 3% reservation for the entire 917 posts; instead of finding the selection zone, applications of SC/STs were received on inter-State basis and that the marking pattern in the selection in the absence of guidelines to 80% marks had led to wide variations. The Tribunal, however, noticed that allegations of mala fide and bias had not been established. Aggrieved and affected by the order of the Tribunal, the successful candidates, who were provisionally selected, filed the writ petitions in the High Court challenging the order passed by the Tribunal. The High Court, on a detailed examination of respective contentions raised by the contesting parties, held that the rule of reservation was properly followed except to the extent of shortfall by 1% in regard to the Physically Handicapped category; the procedure prescribed in para 179 of I.R.E.M. was substantially complied with; the awarding of marks in two categories to the extent of 80% was in order; that association could not agitate the case of all persons as it depended on the facts of each individual member and that no resolution of authorization to file the O.A. was produced. The High Court also observed that the Tribunal could not act as a court of appeal in appreciating the contentions urged before it. Having due regard to the long-drawn process involved in the selection of candidates, the revised assessment of vacancies coming to only 382 in Group `D for the period upto March 2002 and considering totality of facts and circumstances of the case as indicated in the order under challenge, the High Court directed the authorities to proceed with the selection made and to appoint the selected candidates in the available vacancies. It was made clear that the authority concerned should select and appoint 3% Physically Handicapped candidates out of the candidates already selected instead of 2%. Before us, Mr. K.R. Chowdhary, learned Senior Counsel appearing for petitioners in S.L.P. No. 14656 of 2000, urged that the High Court failed to appreciate that the writ petitions had become infructuous as stated in the counter affidavit filed by the respondents in view of the fact that the Indian Coach Factory (I.C.F.) Administration had accepted the order of the Tribunal and cancelled the employment notification dated 7.9.1995 itself, on 3.10.1999; after 3.10.1999 pursuant to the cancellation of the employment notification, no right subsisted to the writ petitioners before the High Court and as such the High Court committed an error in proceeding to decide the case; the High Court also committed an error in holding that there was substantial compliance of para 179 IREM; the High Court was not right in holding that non-shortlisting and not confining preference to local candidates did not affect the selection. On the other hand, Mr. A.L. Somayaji, learned Senior Counsel for petitioners in SLP No. 2377/2001, made submissions supporting the order of the High Court except to the extent of the observation made in para 34 taking note of revised assessment of vacancies coming to only 382 in Group `D for the period upto 2002, and confining appointment to the available vacancies only. Although originally the notification was issued to fill up 330 vacancies, later they were increased to 917 after getting the approval of the Railway Board for additional 587 vacancies; since as many as 58,675 applications were received, out of them 32,563 candidates were called for interview and 25,271 candidates actually attended interview including large number of local candidates, no prejudice was caused by not inviting applications for additional vacancies; as observed by the High court, selected candidates were made to run from pillar to post for one reason or the other and they were asked to appear twice for the interview in pursuance of the notification No. 1/95 and that after a long drawn process the panel of selected candidates was prepared; the Tribunal committed a serious error in quashing the panel of selected candidates in its entirety when the selected candidates were not impleaded in the O.As. On this short ground alone, the High Court ought to have granted relief to the successful candidates fully covering all the 917 candidates. The learned Senior Counsel also submitted that no mala fides or arbitrariness was found in the procedure of selection of candidates. He urged that there was no justification to reduce the vacancies to be filed from 917 to 382, having prepared and published a panel of 917 selected candidates. He added that after the High Court passed the order, some candidates have been appointed; it may not be appropriate to upset the selection of candidates at this stage. Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the Union of India, made submissions drawing our attention to counter-affidavit filed by the Union of India and urged that the selected candidates did not acquire any indefeasible right to be appointed against the existing vacancies and the authorities are under no legal duty to fill up all or any of the vacancies and particularly so when there are no vacancies to accommodate all the candidates; the authorities accepting the decision of the Tribunal cancelled the employment notification and subsequently after the High Court passed the order, further steps were taken and about 100 out of the selected candidates are already appointed. We have given our consideration to the rival contentions urged on behalf of the contesting parties. It is clear from the counter affidavits filed on behalf of Union of India and I.C.F. Administration that after the Tribunal passed the order in O.As. on 23.8.1999 and on implementation of the decision of the Ministry of Railways to enhance the hourly rate of incentive, concurrently by reducing the allowed time and in terms of their letter No. PC-V/98/1/7/4/1 dated 21.6.1999 with effect from.1.9.1999, there was drastic reduction of vacancies leading to surrendering of 866 posts of technicians (artisans) and 327 posts of Khalasis(helpers). In the changed situation, the I.C.F. Administration decided to implement the order of the Tribunal quashing the selection and issued press notification on 3.10.1999 canceling the employment notification dated 7.9.1995 and canceling the panel of the selected candidates. After issuing employment notification on 7.9.1995 to cover further two years recruitment for subsequent years, with the approval of the Ministry of Railways in 1996, it was decided to empanel 587 more candidates in the same recruitment process. The recruitment process was getting prolonged due to litigation. A number of appointments on compassionate grounds had to be made in the intervening period; owing to the raising of the age of superannuation from 58 to 60 years by the Government, there were no retirements from May, 1998 to April, 2000; more than these, implementation of Railway Boards decision to enhance the hourly rate of incentive and reduce the allowed time by 12% resulted in reduction of vacancies both in Group `C and Group `D. Vacancies in Group `D depend on arising of vacancies in Group `C technicians cadre and the progression of Khalasis (helpers) by Khalasis against 75% of technician vacancies; because of these reasons the anticipated vacancies did not materialize and the exercise of reassessment of vacancies made in September, 1999 indicated that only 382 vacancies would be available upto March, 2002. Responding to the allegation that these facts were not brought to the notice of the Tribunal during the arguments in O.A. No. 93/99, it was pointed out that after the closing of arguments before the Tribunal and on receipt of Boards instructions dated 21.6.1999 effective from 1.9.1999, the vacancies had to be re-assessed having regard to the reduction of manpower requirements and the vacancies so reduced came to 382 for the period upto March, 2002; the variance between the vacancies notified at 330 and the revised vacancies at 382 was not much. Neither any mala fides were attributed nor any arbitrariness was established on the part of the Railway Administration in re-assessing the vacancy position. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India [1991 (3) SCC 47]. Para 7 of the said judgment reads thus :- It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla vs. State of Haryana [(1986) 4 SCC 268] or Jatendra Kumar vs. State of Punjab [(1985) 1 SCC 122]. Hence the contentions raised in SLP No. 2377/2001 are untenable. Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically Handicapped instead of 2%. 382 vacancies would be available upto March 2002 possibly as of now all the 382 candidates may not be given appointment; the appointments may be given upto 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. The employment notification No. 1/1995 was issued on 7.9.1995 and the decision was taken to increase the posts on 17.5.1996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including large number of local candidates, applied for the posts. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filed up upto March, 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long-drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for long time from 1995 with great hope of getting jobs. Enormous money and man hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. Vs. State of Uttar Pradesh & Ors. [1984 (4) SCC 251] has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that :- A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High court ought to dismiss the petition for non-joinder of necessary parties. This court in para 4 of the judgment in A.M.S. Sushanth & Ors. Vs. M.Sujatha & Ors. (2000 (10) SCC 197) has stated thus:- We find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to the other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not. Be that as it may, on the facts and in the circumstances of the present cases, we do not find any merit in any one of the contentions urged on behalf of the petitioners in S.L.P. No. 14656 of 2000. The High Court found that rules of reservation in regard to all other categories were followed and the Tribunal also found so; as regards Physically Handicapped, the reservation was to be increased to 3% instead of 2% among the candidates included in the panel on the basis of merits. Hence the grievance as to increase of posts from 330 to 917 without issuing notification was of no consequence. It is also noticed by the High Court that the large number of applications were received and interviewed including a large number of local candidates; the employment notification of 95 had been published in the employment exchanges in Chennai, Kanchipuram and Tiruvallur of the local unit of I.C.F., Chennai. Further it is also stated in the counter affidavit that the upper age limit itself has been raised upto to 33 years besides relaxation in the age limit for reserved community candidates and P.H./Ex.Servicemen etc. In our view, no prejudice was caused to the petitioners in S.L.P. No. 14656/2000. In regard to the other contention that 80% marks were awarded to the candidates without any guidelines, the High Court has taken the view that there was no arbitrariness in awarding 80% marks under two heads. We will do well to remember that The candidates were interviewed for Group `D posts (Khalasis); the selection was to be made only on the basis of viva voce test. The marks were to be awarded under the four heads as stated below.i) Personality / address - 40 marks ii) Ability to do the job - 40 marks. iii) Technical / academic qualification-10 marks. iv) Sports etc. - 10 marks. Under the head ability to do the job, marks to be awarded was on the basis of the candidates ability to lift a weight of 35 kg. without any physical strain. Marks were to be awarded looking to the technical /academic qualifications; so also for sports and marks were to be awarded for personality and address. Having regard to the nature of different heads for which marks were to be awarded that too for filling up Group D posts of Khalasis, it cannot be said that there could be wide variance or arbitrariness in awarding narks. The procedure followed in viva voce test is again indicated in the reply statement filed on behalf of the Railway Administration before the Tribunal itself. It is stated that the interview was conducted by 3 committees with 4 members each representing SC/ST/Minority/OBC for 75 days. To maintain secrecy, a system which was evolved in the previous selection with the approval of the then Chief Personnel Officer (CPO) in the year 1989-90 for nomination of the Committee Members was adopted this time also, as detailed below:- On the previous day afternoon, the three selection committees with four officers will be formed by Deputy Chief Personnel Officer/General [Dy. CPO/G] with due representation of SC/ST/OBC/Minority. These 12 officers will be intimated over phone by Dy. CPO/G or through his Confidential Assistant without mentioning which committee they belong to. The sealed cover containing three committees will be handed over to Senor Personnel Officer/Recruitment and training (SPO/R&T) and the same will be opened by SPO/R&T in the presence of the all twelve officers on the day of viva voce after getting signature from one or two offices on the sealed cover to acknowledge that the sealed cover is in tact. On the first two days [viz. 22nd and 23rd June 1998] CPO has nominated the committees. Thereafter the Dy. CPO/G. had nominated the committees. In pursuance there of, the committee members will take position in their respective committee rooms allocated and conduct the interviews. After the closure of the interview, on each day, the signed mark statements of each committee will be kept in a cover duly signed by the officers in the outer cover and sealed. These sealed covers will be handed over to Dy. CPO/G by the Personal Officer of the respective committee, for safe custody. In the absence of Dy. CPO/G, SPO/R&T will receive and hand over the same to Dy. CPO/G, when he resumes duty. After the interview were over, a decision was taken to hand over the mark statement in 220 sealed covers to Railway Recruitment board/Chennai[RRB] for data entry and form a draft panel following all the reservation rules for SC/ST/OBC etc. The 220 sealed covers were taken to RRB by D.DPO/G and SPO/R&T in 2 sealed boxes and handed over on 12.10.1998. On 22.12.1998, the RRB returned the mark lists along with the merit lists an a floppy containing date for all the 25,271 candidates. The data entries were verified and a panel of 917 selected candidates formed with CPOs approval, after following the reservation rules for SC/ST/OBC/Physically Handicapped and Ex- servicemen. Thereafter, the panel was published in the Newspapers viz, Indian Express and Daily Thanthi on 30.01.1999. Simultaneously, the successful candidates were informed that they have been provisionally selected for Gr. D posts and further action will follow in due course. At this stage, the applicants have filed the present OA and this Honble Tribunal on 08.02.1999 passed an order directing the respondents to maintain `statusquo. S.L.P. No. 14656 of 2000 is filed by the petitioners in O.A. No. 93 of 1999 before the Tribunal. In the said O.A., petitioner no. 1 was an association named All India Scheduled Caste and Scheduled Tribe Employees Association and petitioner no. 2 was an individual. The High Court has held that such a writ petition filed by an association was not maintainable. In our view it is unnecessary to examine this question in the light of conclusion reached on the merits of the respective contentions. The contention urged on behalf of the petitioners in S.L.P. No. 14656 of 2000 that the writ petitions had become infructuous in view of the fact that I.F.C. Administration itself had cancelled the employment notification No. 1 of 1995 dated 7.9.1995 accepting the judgment of the Tribunal cannot be accepted. The selected candidates who were seriously affected had every right to challenge the decision of the Tribunal on all the grounds available to them. The I.C.F. administration by its decision to cancel the employment notification and the panel of selected candidates unilaterally could not defeat or destroy the interest of the successful candidates. It is also submitted before us that the I.C.F. Administration pursuant to the judgment of the High court passed in the writ petitions has given appointment to about 100 candidates from out of the panel of the selected candidates. This being the position, we are of the view that the writ petitions had not become infructuous. The High Court has also noticed that those candidates who had participated in the interview could not challenge the selection before the Tribunal. Thus having regard to all aspects including the changed situation as to the reduction of vacancies from 917 to 382 on the basis of the revised assessment of vacancies as already stated above, the impugned order passed by the High Court is just and appropriate. In the light of what is stated above, we do not find any justification or valid reason to interfere with the impugned order passed by the High Court. Therefore, both the S.L.Ps. being devoid of any merit are liable to be dismissed. Accordingly, they are dismissed but with no order as to costs in the circumstances of these cases.


CASE NO.: Appeal (civil) 2589 of 2000 PETITIONER: JAYA GOKUL EDUCATIONAL TRUST RESPONDENT: COMMNR. & SECY. GOVERNMENT HIGHER EDUCATION DEPTT. THIRUVANANTHAPURAM, KERALA STATE AND ANR. DATE OF JUDGMENT: 11/04/2000 BENCH: M. JAGANNADHA RAO & M.B. SHAH JUDGMENT: JUDGMENT 2000 (2) SCR 1234 The following Judgment/Order of the Court was delivered : M. JAGANNADHA RAO, J. Leave granted. The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the 'AICTE') There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establish-ing an Engineering College. The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994, the AICTE was granting conditional approval for establishing an Engineering and Technical College. The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter. In the event of contravention of the conditions, guidelines, norms and regula-tions of the AICTE, the AICTE could withdraw the approval at any time. Under the impression that the State Govt. was to grant permission, the appellant requested the State Government by letter dated 24.6.1995 for permission to start the college. Meanwhile, the Mahatama Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96. The appellant's college was shown as one of the colleges among the affiliated colleges for the said period. The appellant sent a reminder to the Government on 26.8.1995 for permission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows : "In inviting your attention to the reference cited, I am to inform you that Government regret their inability to comply with your request." Thereafter, the appellant filed writ petition O.P. No. 4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College. The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition, quashed the above-said order of the government dated 16.8.1996 and directed the Mahatama Gandhi University to consider the appellant's application for permanent affiliation without reference to the above letter of the Government and pass appropriate order within 8 weeks from the date of the receipt of a copy of the judgment. The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval, permanent affiliation could not be granted. The Government was also directed to reconsider its decision. Against the said judgment of the learned Single Judge the Commis-sioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No. 1024 of 1997. The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition. The Division Bench, however, observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier application, for a future academic year. It is against the abovesaid judgment of the Division Bench that this appeal has been preferred. Learned senior counsel for the appellant Sri T.L. Vishwanatha Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and according to him after the coming into force of the AICTE Act, 1987, the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void. In so far as institutions imparting technical education were concerned, the University or the State Government had no independent role to play except to the extent provided in the above said enactment, in the present case, the AICTE had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. The AICTE had consulted the State of Kerala as well as the Mahatama Gandhi University. The University had granted conditional approval, as stated earlier. Therefore the AICTE consti-tuted a Task Force and obtained its opinion and thereafter granted its approval on 13.11.1995 subject to various conditions. According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the college. It might be that under the relevant statutes of the University, the University was required to obtain the "views" of the State Government but that did not amount to requiring any approval of the State Government and indeed if any such statute required the approval of the state Government, it would be void in view of what was stated by this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the "policy" of the Government was not to grant approval to self-financing engineering colleges to be established, such a policy could not come in the way of the appellant in view of what this Court has stated in similar circumstances in Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15. On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the "Policy" of the State of Kerala at the relevant time was not to grant approval for establish-ment of more engineering colleges in the State. The Government had clarified in the counter affidavit filed in the High Court that the Government "was not in a position" to take a decision to start new engineering colleges, without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportunities in the country as a whole. Also there were four Engineering Colleges at Kannur, Trichur, Kottayam and Thiruvananthapuram Districts and three Private (Aided) Engineering Colleges at Palakkad, Ernakulam (Kothamangalam) and Kollam Districts. The Model Engineering College, Emakulam was a self- financing Engineering College and others were the colleges at Changannur and Pathansamthitta and there was a self-financing engineering college at Kasargode. There were also two unaided Engineering Colleges at Mallappuram and Thiruvananthapuram. Even though the appellant trust was not seeking aid from the Government and even assuming that it was financially self-suffi- cient, it would not be in the interests of the students & employment, to permit new engineering colleges to be established. Thus the Government policy was not to grant fresh approvals. If more approvals were granted, it might lead to commercialisation of education. The following points arise for consideration : (1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others, [1995] 4 SCC 104, the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void? (2) Whether the orders of rejection passed by the State Government were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission? Point 1 : This point is more or less covered by the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. But, in the context of section 10(K) regarding 'approval' for starting a technical institution, certain aspects of the judgment need to be highlighted. Before we refer to the abovesaid judgment, it will be necessary to refer to certain provisions of the AICTE Act and the relevant regulations. The abovesaid Act was an act to provide for the establishment of All India Council for Technical Education with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper main- tenance of norms and standards in the technical education system and for matters connected therewith. Under section 10 of the Act, it is stated that it is the duty of the Council constituted under the Act to take all steps as the said Council might think fit for ensuring coordinated and integrated develop-ment of technical education and maintenance of standards. For the purposes of performing its functions under the Act, the Council may (a) undertake survey in various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; (b) coordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to - (i) technical institutions, and (ii) Universities imparting technical education in coordination 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 improve-ment 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 organisations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorpo-rating 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. The clause in Section 10(1) which is important in the present case is sub- clause (k) of section 10(1) and it provides that the Council might "grant approval for starting new technical institutions and for intro- duction of new courses or programmes in consultation with the agencies concerned." Sub-clause (1) permits the Council to advice the Central Government in certain respects, sub-clause (m) lay down norms for granting autonomy, sub- clause (n) to take necessary steps to prevent commercialisation of technical education, clause (o) to provide guidelines for admission of students to technical institutions and Universities imparting technical education, clause (p) to inspect or cause inspection to any technical institution, clause (q) to withhold or discontinue grant, clause (r) to strengthen the existing organisa-tions etc., clause (s) to declare technical institutions as fit to receive grants, clause (t) to advice for declaring institutions to be deemed as universities, clause (u) to set up a National Board of Accreditation. Section 11 of the Act deals with inspection. Regulations have been framed on 31st October, 1994 by the AICTE in exercise of powers conferred on it by section 23(1) of the AICTE Act. Regulation 2 states that these regulations will be applicable to proposals relating to "(a) grant of approval of the Council for establishment of new technical institutions including Universities or University depart-ments and deemed Universities and for technical institutions function-ing on the date of commencement of these regulations at Degree and Diploma levels; (b) grant of approval of the Council for introduction of any course or programme in the technical institutions and technical departments or Universities or deemed Universities; (c) grant of approval of the Council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes." Regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations "(a)............................. (b) no course or programme shall be introduced in any technical institutions, university or deemed university or university departments or college; or (c) no technical institutions, Universities or deemed Universities or University Departments or colleges shall continue to admit students for degree or diploma courses or programmes; (d) no approved intake capacity of seats shall be increased or varied : except with the approval of the Council. Reg.. 4(2)........................." Regulation 5 deals with the Forms of the Applications and Regulation 6 deals with the conditions for grant of approval, Sub-clauses 1 of Regulation 6 deals with the financial position. Sub-clause 2 with the courses or programmes and sub-clause 3 deals with the power of admissions and sub-clause 4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6 with the Governing Body of the private institutions and sub- clause 7 with other matters. Regulation 8 deals with scrutiny of applications. There is a prelimi-nary scrutiny of the applications by the Bureau RC of the Council. Sub-clause 4 of Regulation 8 reads as follows : "Reg. 8(4) The Bureau RC shall invite comments/recommendations on the applications referred to in sub-regulation (3) from the follow-ing, namely : (i) the State Government concerned ; (ii) the affiliating University/State Board of Technical Education; (iii) Bureaus MPCD; (iv) Bureau BOS; (v) Bureau RA; (vi) the Regional Office." Sub-clause 5 of Regulation 8 requires the Regional Office to arrange visits by an Expert Committee constituted by the Council which is to forward its recommendations to the Council. Sub-clause 6 of Regulation 8 states that the State Level Committee constituted under Regulation 9(4) is to consider the recommendations of the State Government and others mentioned in regulation 8(4) and that it is to make its recommendations to the Central Task Force constituted under regulation 9(5) and consider the recommendations of the State Level Committee and send its recommendations to the Member Secretary of the Council. Sub-clauses 8 & 9 of Regulation 8 are important and read as follows : "Reg. 8(8) If there is a disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the respective agencies for further consultations before making final recommenda-tion; (9) On the recommendation of the Central Task Force, the Council shall decide the question of grant of approval as sought for in the application : Provided that the Council may, for reasons to be communicated to the applicant, allow the approval with such restrictions or modifications as it may deem necessary." Sub-clause 10 of Regulation 8 states that the decision of the Council shall be communicated to the State Government concerned or the UGC, as the case may be, the concerned University or the State Board, the Regional Office and the applicant before 30th April in case the application was made before the preceding 31st December. The Tamil Nadu case : As stated earlier, the above provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Institute, [1995] 4 SCC 104. In the above matter, the State of Tamil Nadu granted permission on 17.4.84 to all private managements to start private Engineering colleges without financial commitment to government but subject to conditions. At that time in 1984, the AICTE Act was not on the statute book. The Government of Tamil Nadu granted permission to the Trust for the academic year 1987-88 to start an Engineering college. The University also granted permission on 21.11.87 for the academic year 1987-88. Later on, these permissions were withdrawn by the State after issuing show cause on 16.7.89. So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had come into force. The learned Single Judge and the Division Bench held in favour of the Trust and quashed and orders of the Government and the University. The said judgments were affirmed by this Court. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to "co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions". After the Constitutional Amendment (42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List read : "Education, included technical education, medical institution and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour". Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. The Tamil Nadu Act was of 1976 and the University Act was of 1923 and were laws referable to the List III. Whether they were pre- constitutional or a post constitutional laws, they would be repugnant to the AICTE Act passed by Parliament under Entry 66 of List I. In the above case this Court referred to the various provisions of the AICTE Act and on the question of repugnancy held (see p. 120 SCC) as follows : "Hence on the subjects covered by the statute, the State could not make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act 1923 on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution". We shall now refer to the relevant paras of the above judgment dealing with the question of 'approval' for establishing technical institutions under section 10(K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require "approval' by the State Government and that would be void. It was stated (see p. 124 SCC) that inasmuch as the State Act, "will overlap and will be in conflict with the provisions of the Central Act in various areas........., granting approval for starting new technical institution........., inspection of technical institution ............which are matters covered by the Central Act." This Court then referred to the Madras University Act, 1923. It was held (see p. 126 SCC) that section 10 of the Central Act dealt with various matters (including granting approval for starting new technical institutions), and that so far as these matters were concerned. "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 force of the Central Act, the provisions of the University Act will be deemed to have become unenforceable". Thus, in the two passages set out above, this Court clearly held that because of section 10(k) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of 'approval' for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them. Statutory powers of the State of Kerala and the M.G. University : The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala. Learned Additional Solicitor General stated before us that there was no statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 nor any other law which specifically required the 'approval' of the State Government. It was however contended that the Tamil Nadu case was concerned only with the standards of education and as to who could fix them. We are not inclined to agree. We have already pointed out under Point 1 that in the Tamil Nadu case, section 10(k) of the AICTE Act was referred to and the power of 'approval' for establishing a technical institution was consid- ered, in our opinion, even if there was a State law in the State of Kerala which required the approval of the State Government for establishing technical institutions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case. The only provision relied on before us by the State Government which according to its learned senior counsel, amounted to a statutory requirement of 'approval' of the State Government, was the one contained in clause 9(7) of the Kerala University First Statute. It reads as follows : "(9) Grant of affiliation : (1)..................... (3)..................... (7) After considering the report of the Commission and the report of the local inquiry, if any, and after making such further inquiry as it may deem necessary, the Syndicate shall decide, after ascer-taining the view of the Government also, whether the affiliation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meet-ing :" It will be noticed that clause 9(7) of the statute required that before the University took a decision on "affiliation", it had to ascertain the "views" of the State Government. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause (9) of the statute required "verification of the facilities that may exist for starting the new colleges/course". The Commission was to inspect the site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the management, constitution of the registered body and all other relevant matters, Sub-clause (2) of clause (9) stated that the affiliation "shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose". As held in the Tamil Nadu case, the Central Act of 1987 and in particular, section 10(k) occupied the field relating the '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 inter-preted, 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 the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the 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, the AICTE would have to go by the views 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 the Tamil Nadu 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 the 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 require-ment 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. Point 1 is decided accordingly. Point 2 : Factual position and pleadings in this case : On facts, the position was that the AICTE had granted approval on 30.4.95 expressly stating that this was "on consideration of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee, Central Task Force as per the provisions of AICTE Regulations dated 31.10.94". The AICTE had granted condition approval and the conditions were specified in Annexure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 and based on the judgment of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh, [1993] 1 SCC 645. The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7), the "views" of the government were to be sent before granting affili-ation. The letter said that for that reason the proposals of the University were being submitted to the Government "for necessary action". The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated "that government regret their inability to comply with your request". No reasons were assigned in the said letter. But the State in its counter filed in the High Court tried to explain in para 3 that the Director of Technical Education had opined that during the year 1995-96, it might not be practicable to start the college for the Director could not ascertain the details of the facilities available. It was stated : "he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education. The All India Council for Technical Education and the Mahatma Gandhi University have sought for the remarks of the State Government. Para 4 of the Counter affidavit had further stated that the Government was not "in a position to take a decision to start new Engineering college without properly assessing the necessity of more engineering gradu-ates in the State and exploring the possibility of employment oppor-tunity in the country to the extent possible". The State Government in its counter then gave the names of the existing colleges and their location. We have already referred to these details. It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. It was stated that Government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the Government had subsequently "taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year". These are stated to be the reasons for the government's rejection by letter dated 16.8.96. State Government's refusal to grant permission is illegal and void on merits : As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash the State Government's letter dated 16.8.1996 refusing to give their approval. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE's approval dated 30.4.95 showed that the approval had been given by the State Level Com-mittee of which they were obviously members. It is, therefore, not under-standable how the Director had given a contrary opinion to the State Government. Regulation 8(4) of AICTE only required calling for the "com-ments/recommendations" of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force was to make a final recommen-dation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirwnuruga Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15, which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the "essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone". Therefore, the State could not have any "policy" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action. Decision of University in not granting further or fined affiliation wrong on merits : Admittedly, the University's inspection report was in favour of the appellant. This is clear from the appellant's letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the "views" of the State Government. Obtaining the 'views' of the State Government, as already stated, did not amount to obtaining its 'approval'. Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular section 10(k) of the Regulation, and the University could not seek approval of Government. The University was also one of the agencies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univer-sity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Govern-ment and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in OP - 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient, we do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge's order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatama Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations. The appeal is allowed and disposed of as stated above. There will be no order as to costs. M. JAGANNADHA RAO, J. The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court. We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No. 952 of 1998 and the same is pending. It will be for the petitioner to have the said matter disposed of by the High Court of Delhi. Therefore, this special leave petition is dismissed as premature.