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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.                    of 2018 (@ SPECIAL LEAVE PETITION [C] NO.9718 OF 2018)

THE JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY REGISTRAR …  APPELLANT(S)

VERSUS

SANGAM LAXMI BAI VIDYAPEET & ORS. … RESPONDENTS

J U D G M E N T

ARUN MISHRA, J.

1. The question involved in the appeal is whether a University is

bound to give ‘No Objection Certificate' (NOC) for opening an

educational institution or for a new course irrespective of educational

needs of the  locality  under  its jurisdiction.   In  other  words, is the

University bound to give NOC in a local area irrespective of whether

institutions are required in the area and thereby promote the

mushroom growth of institutions?

2. Respondent no.1 – Sangam Laxmibai Vidyapeeth, is a registered

society which has sponsored and manages Bojjam Narasimhulu

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Pharmacy College for Women, being Respondent No.2, set up at

Hyderabad.  On 27.7.2017, Respondent No.2 applied to the Jawaharlal

Nehru Technological University (for short, “the University”) for grant of

No Objection Certificate (NOC) to start the D.Pharma course in their

college during the academic year 2018­2019.   On 19.8.2017, the

University declined NOC on the ground that as per the Government’s

policy and perspective plan, NOC  was not to be granted for new

institutions and new courses.  

3. Respondent  No.2 on 26.8.2017  filed an application before the

Pharmacy Council of India (for short, ‘the PCI') for grant of approval for

starting D. Pharma course for the academic year 2018­2019.  The PCI

insisted on the production of NOC certificate from the University.  

4. Challenging the communication dated 19.8.2017 of the

University declining NOC and also challenging regulations 5.1, 5.2 and

6 of the Jawaharlal Nehru Affiliation Procedure and Regulations, 2017

(hereinafter referred to as “the 2017 Regulations”), the respondent filed

a writ petition before the High Court.   

5. In  its  counter  affidavit filed  in  the High Court, the University

contended that under the provisions of Section 20 of the Telangana

Education  Act,  1982  (hereinafter referred to  as “the  Act  of  1982”),

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obtaining of NOC as per the All India Council of Technical Education

Regulations (for short, ‘the AICTE Regulations’) and the 2017

Regulations, was necessary for starting new courses.   

6. The validity of Section 20 of the erstwhile Andhra Pradesh

Education Act, which is in  pari materia with Section 20 of the Act of

1982, has been upheld in  Government of Andhra Pradesh v. J.B.

Educational Society, (2005) 3 SCC 212.   The said Act stands adopted

in the State of Telangana.

7. The Government of Telangana also filed a counter­affidavit

pointing out that Government has taken a policy decision and

requested the AICTE by a letter dated 29.11.2016 to declare a holiday

on the establishment of new technical  institutions for the academic

year 2017­2018 onwards.   The policy decision was based upon the

detailed study of a large number of technical institutions running in

the  State  and in  particular  Hyderabad,  wherein  even the  available

seats  were lying  vacant,  and  the  addition  of  more  seats  and  more

colleges was bound to adversely impact the quality of education and

would  make them financially  unviable.    Ultimately, the  fall in  the

standards  of education  may result in the low  employability of the

students.   The Government had prepared a perspective plan for

technical education in the State and communicated the same to the

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AICTE.   The Perspective Plan had been prepared in consonance with

the provisions contained in Section 20 of the Act of 1982.

8. The High Court by the impugned judgment and order had

allowed the writ application.   It has observed that grant of NOC will

not enable an institution to start a course.   They have several other

hurdles to be cleared for starting D. Pharma.  The High Court has held

that Regulations 5.2, 5.3 and 6 of the 2017 Regulations are valid.  The

vires of the regulations has been upheld.   However, the High Court

held that policy decision taken by the Government not to allow new

courses to be started is not in terms of section 20 of the Act of 1982 as

the provision does not vest power upon the Government to declare a

holiday on the ground that a lot of seats are going vacant.  The High

Court has observed that in case the seats are going vacant educational

institutions will automatically shut down courses for which there is no

demand.  Unless starting of a course or running of an existing course

is economically viable, no educational agency would take up the

venture.   That is the concern of the educational agency and not of the

Government or of the University.   The High Court has further

observed that uneducated unemployed may find a course where their

energies can be channelized and it is better to have educated

unemployed   rather   than   to   have a breed of uneducated

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unemployed.   The perspective plan prepared by the Government has

also been considered.   It has been observed that seats remaining

vacant cannot be the sole criterion for refusal of NOC.  The enrolment

of students in Pharma­D has registered a marginal increase over the

years.  The University has been directed to grant NOC.  Thereafter, it

will be open to the AICTE and PCI to examine the application of the

petitioner for D. Pharma course and thereafter it will be open to the

University to examine with reference to its own Statutes as to whether

petitioner may be granted affiliation or not.   Aggrieved by the same,

the appeal has been preferred.

9. It  was  submitted  by the learned senior  counsel  appearing on

behalf of the appellant­University that there are thirty institutions

which are running pharmacy courses in the city of Hyderabad.   The

number of institutions is more and it is not possible to cater to the

needs of all colleges as students are not enough.   The seats remain

vacant in spite of the reduction in the number of seats.   There is a

paucity of the teachers as well.  The Government of Telangana after a

detailed study has prepared a perspective plan and has forwarded it to

the AICTE requesting it not to open new technical courses as there is a

mushroom growth of the institutions in the city of Hyderabad.

Considering the perspective plan, the decision has been taken not to

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grant NOC by the University in terms of the provisions contained in

section 20 of the Act of 1982 and the Regulations of the University.

The High Court has erred in law in interfering with the policy decision

of the State Government on legally impermissible grounds.  

10. Per contra,  learned senior counsel on behalf of the respondent

contended that it was not open to the Government to frame such a

policy of declaring a holiday.  It is for the AICTE or the PCI to take into

consideration the requirements of the area whether institutions have

to be permitted to start a new course.   Mainly by the fact that some

seats have remained vacant in the course of Pharmacy, the NOC could

not have been declined.  As it was for the PCI as well as the AICTE to

take into consideration the various aspects after the issuance of the

NOC.   Thus, University, as well as the State Government, have

exceeded their powers.  The statistics submitted are not of D. Pharma

course but relates to the other courses of pharmacy.  The imposition of

the moratorium for the academic year 2018­2019 is bad in law as it

would  be open to the  University, after approval is granted  by the

AICTE and PCI, to examine whether the institution fulfills its

requirements for the purpose of grant of affiliation.  In the perspective

plan, it is pointed out that there is need to start pharmacy course as

imbalance has been created by the establishment of other technical

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institutions such as engineering etc. which may not be good for the

country’s growth.  

11. The pivotal point for consideration is whether the State

Government and the University have the power to frame a policy and

to refuse the grant of NOC to start a course in Pharmacy in the city of

Hyderabad and the decision of the State  Government  imposing  the

moratorium for the year 2018­19 is without jurisdiction, irrational or

arbitrary.

12. Section  20 of the  Act of 1982  deals  with  permission for the

establishment of educational institutions. Section 20(1) provides that a

competent authority shall conduct a survey as to identify the

educational needs of the locality under its jurisdiction. Section 20(3)

provides that any educational agency applying for permission under

section 20(2) shall before the permission is granted, satisfy the

authority concerned that there is  a  need for  providing  educational

facilities to the people in the locality. Section 20 is extracted

hereunder:

“[20. Permission for establishment of educational institutions: ­ (1) The  competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction  and notify in the prescribed manner through the local newspapers  calling for  applications  from the  educational  agencies desirous of establishing educational institutions.

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(2) In pursuance of the notification under sub­section (1), any educational agency including a local authority or registered body of persons intending to ­ (a) establish an institution imparting education; (b) open higher classes in an institution imparting primary education; (c) upgrade any such institution into a high school; or (d)  open new courses  (Certificate,  Diploma,  Degree,  Post­Graduate Degree Courses, etc.) may make an application, within such period in such manner and to such authority as may be notified for the grant of permission therefor. (3) Any educational agency applying for permission under sub­ section (2) shall, ­ (a) before the permission is granted, satisfy the authority concerned, ­ (i) that there is a  need for providing educational facilities to the people in the locality ; (ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority ; (iii) that  the  institution  is  proposed to be  located  in sanitary and healthy surroundings ; (b) enclose to the application, ­ (i) title deeds relating to the site for building, playground, and garden proposed to be provided ; (ii) plans approved by the local authority concerned  which shall conform to the rules prescribed therefor; and (iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and (c) within the period specified by the authority concerned in the order granting permission, ­ (i) appoint teaching staff qualified according to the rules made by the Government in this behalf ; (ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission. (4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987, no educational institution shall be established except in accordance with the provisions of this Act and any person who contravenes the provisions of this section or who after the permission granted to him under this section having been cancelled continues to run such institution shall be punished with simple imprisonment which shall not be less than six months but which may extend to three years and with fine which shall not be less than three thousand rupees but which  may extend to fifty thousand rupees : Provided further that the Court convicting a person under this section shall also order the closure of the institution with respect to which the offense is committed."

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(emphasis supplied) A bare reading of the aforesaid provisions of section 20(1) makes

it clear that the survey is conducted so as to identify the educational

needs of the locality would definitely include within its ken how many

institutions are operating in the area and whether there is any further

requirement of opening educational institutions/new courses in

existing colleges, and it is also imperative under section 20(3)(a)(i) that

educational agency has to satisfy the authority that there is a need for

providing educational  facilities  to the people  in the  locality. In case

there are already a large number of institutions imparting education in

the area the competent authority  may be  justified not  to grant  the

NOC, for permitting an institution to come up in the area.

13. The provisions contained in section 20 are wholesome and

intend not only to cater to the educational needs of the area but also

prevent the  mushroom growth of the institutions/courses. In case

institutions are permitted to run each and every course that may affect

the very standard of education  and  may  ultimately result in sub­

standard education.   There is already a paucity of well­qualified

teachers in a large number of institutions and the available seats in

Pharmacy course  in the Hyderabad city are remaining vacant every

year in spite of the reduction in a number of seats.   It had not been

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possible to  fill  up the available vacancies due  to non­availability  of

students. Thus, it is apparent that when 30 institutions in Hyderabad

city are already running Pharmacy course, the refusal to grant NOC by

the University was wholly justified.

14. Apart from the provisions contained in section 20,  when  we

consider  Regulations 5.2 and 5.3 which clearly  provide that  a new

college proposing to offer technical education with the University

affiliation shall first seek a NOC from the University before applying to

AICTE/PCI/any other statutory body. Regulation 5.3 provides that the

permission  for  starting  of  new programmes  in the  existing  colleges

shall be considered by the University as per the priority/policy of the

State Government if any. Regulations 5.2 and 5.3 are extracted

hereunder:

“5.2 – A new college proposing to offer technical education with the University affiliation shall first seek a No Objection Certificate (NOC) from the University  before  applying  to  AICTE/PCI/other  Statutory Body. 5.3 – The permission for establishing Colleges and starting of new programs in the existing Colleges shall be considered by the University as per the priority/policy of the state government if any.”

15. In  Government of A.P. & Anr. v. J.B. Educational Society & Anr.

(supra), the Court considered the validity of section 20 of the Act of

1982 vis­à­vis section 10 of AICTE Act of 1987 and observed that the

two provisions are not repugnant to each other and they operate in

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different fields. The object and purpose of two enactments had been

considered by this Court and it observed that if there are more colleges

in a particular area, the State  would be justified in not granting

permission to one more college in that area. Entry 25 of the

Concurrent  List  gives  power to the  State  Legislature to  make laws

regarding education, including technical education.  The  AICTE  Act

deals with the general power of Parliament for coordination,

determination of standards in institutions for higher education or

research and scientific and technical educational institutions and

Entry 65 of List I deals with the union agencies and institutions.  The

State has the competence to pass such legislation and Section 20 of

the Act of 1982 is for the welfare of the State. The Court observed:

“13. It is in this background that the provisions contained in the two legislative enactments have to be scrutinized.   The provisions of the AICTE Act are intended to improve the technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general  power given to evaluate, harmonize and secure  proper relationship to any project of  national importance. Such a coordinate action in higher education with a proper standard is of paramount importance to national progress. Section 20 of the AP Act does not in any way encroach upon the powers of the authorities under the Central Act. Section 20 says that the competent authority shall,  from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction notified through the local newspapers calling for applications from the educational agencies. Section 20(3)(a)(i) says that before permission is granted, the authority concerned must be satisfied that there is a need for providing educational facilities to the people in the locality. The State authorities alone can decide about the educational facilities and needs of the  locality. If there are more colleges  in a particular area, the State would not be justified in granting permission to one  more college in that locality.  Entry 25 of the

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Concurrent List gives power to the State Legislature to make laws regarding education, including technical education. Of course, this is subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to which the legislative source is traced for the AICTE Act deals  with the general power of the Parliament for coordination, determination of  standards  in  institutions  for  higher  education or research and scientific and  technical educational institutions and Entry 65 deals with the union agencies and institutions for professional, vocational and technical training, including the training of police officers, etc. The State has certainly the legislative competence to pass the legislation in respect of education including technical  education and Section 20 of the Act  is  intended for  the general welfare of the citizens of the State and also in discharge of the constitutional duty enumerated under Article 41 of the Constitution.

14. The general survey in various fields of technical education contemplated under Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of any particular area in a State. It is a  general supervisory  survey to  be  conducted  by the  AICTE Council, for example, if any IIT is to be established in a particular region,  a general survey could be conducted and the Council  can very much conduct a survey regarding the location of that institution and collect  data  of  all related matters.  But as regards whether  a particular educational institution is to be established in a particular area in a State,  the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions.

21. The educational needs of the locality are to be ascertained and determined by the State.  Having regard to  the regulations  framed under  the AICTE Act, the representatives  of the State  have to  be included in the ultimate decision­making process and having regard to the provisions of the Act, the Writ Petitioners would not in any way be prejudiced by such  provisions in the  A.P. Act.  Moreover, the decision, if any, taken by the State authorities under Section 20(3)(a) (i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission. Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of the AICTE Act and it is constitutionally valid.”

16. In view of the aforesaid decision, the High Court has erred in law

in holding  that it  was not  permissible  for  the State Government to

frame such a policy and the University was bound to issue NOC. The

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decision of the High Court runs to the contrary, ignores and overlooks

the law laid down in the said decision.

17. The Government of Telangana vide its communication dated

29.11.2016 to the AICTE had communicated the views of  the State

Government regarding AICTE approval for the establishment of

educational institutions for the session 2017­18. After discussing the

matter by the Director of Technical Education, Vice­Chancellor of the

University and State Council of Higher Education the State

Government had expressed serious concern at the proliferation and

establishment of technical institutions and the unprecedented

expansion in the intake in all the courses offered by all the technical

institutions coming within the purview of AICTE. Data was given in the

tabular form including that of the Pharmacy. It was pointed out that in

the year 2015­16 sanctioned  intake  in Pharmacy was 11490, seats

remained vacant were 4035, in academic session 2016­17 sanctioned

intake was 9226, seats vacant were 1892.

18. The AICTE Act, 1987 defines technical education in section 2(g)

to mean programmes of education inter alia in Pharmacy also. There is

no provision in the said Act to the contrary to curtail the power of the

State as well as of University. The AICTE has framed the Regulations

under the Act of 1987 in the exercise of the power conferred under

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section 23(1) read with sections 10 and 11 of the Act of 1987 called the

All India Council for Technical Education (Grant of approvals for the

Technical Institutions) Regulations, 2016. The technical institution is

required to seek prior approval of the Council as provided in

Regulation 4.2. Regulation 4.18 provides that the State

Government/UT Administration and the Affiliating University/Board,

as the case may be, shall forward their views along with the

perspective plan of the State and then the application shall be

processed for grant of approval. Regulation 4.18 is extracted

hereunder:

“4.18 The State Government/UT Administration and the Affiliating University/Board shall  forward their views on the applications received under Clause 4.1 as applicable,  with valid reasons along with the perspective plan of the State,  within a period of 21 days from the date of  receipt  of  applications which shall  be taken into account by the Regional Committee for further processing for grant of approval. If the application is not processed further, the processing fee after a deduction of 50000/­ (Rupees Fifty thousand only) shall be refunded to the applicant. If the views  of the  State  Government/UT Administration  and  the Affiliating University/Board are not received within a prescribed time schedule as mentioned in the Approval Process Handbook, it shall be presumed that they do not have any objection and the Council shall proceed further for processing of applications. However, the Council shall  consider the previous communications, if  any,  received  from the State Government/UT administration, the Affiliating University/Board against any Institutions.”

(emphasis supplied)   

19. Regulation 4.18 cannot be said to be repugnant to Regulations

5.2 and 5.3 of the University, and there is no repugnancy in AICTE Act

and section 20 of the Act of 1982 as observed by this Court in

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Government of A.P. & Anr. v. J.B. Educational Society & Anr. (supra).

The perspective plan had been prepared by the State of Telangana for

2018­19. In the perspective plan the State Government has pointed

out the abstract of courses and seats in the existing engineering

colleges for the  academic year  2017­18 and  it  was  mentioned  that

there was an imbalance of seats. Following is the extract relied upon

by the respondents:

"A perusal of the above Table reveals the fact that the four programmes viz. Information Technology, Computer Science and Engineering,  Electronics and  Communication  Engineering  and Electrical and Electronics Engineering together account for 83,290 seats of the total Intake of 1,26,855 seats. This accounts for nearly 66% of the seats and rests account for about 43,565 seats, which is 34% of the total intake. This lopsided priority will, in the long run, have an adverse effect on the growth of infrastructure in the country with its attendant consequences.

This imbalance needs to be corrected on a priority basis so that the manufacturing and other sectors do not suffer. The courses on demand related to latest Technologies and needs of the Industry such as Mining, Textile, Pharmacy, Automobile, Aviation Civil Engineering, and Construction Technology and hence  their enhancement in Intake  may be considered  in the State, while keeping in view of the 14 Thrust Areas as mentioned in Para 5, Page 14 of this Plan. This is also keeping in view that the Pharma city,  Textile  hub,  Fabcity, ITIR, IT  Hubs,  etc.  are emerging in Telangana State.”   

At the same time in the conclusions and recommendations made

by the Government in perspective plan, it has been pointed out that

AICTE may declare a holiday on the establishment of new technical

institutions for the academic year 2018­19. This holiday applies not

only to the establishment of new engineering colleges but may also be

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extended inter alia to B­Pharmacy institutions. It was also pointed out

that in case the  Pharmacy  Council of India  has  not accorded the

approval, AICTE should not grant approval to the Pharmacy colleges. It

was  inter alia  mentioned in the recommendations that new

programmes may be sanctioned in Mining, Granite, Textile, Pharmacy,

Automobile etc. based on “new technologies”.  However, it was not the

case, that course would be based on new technology.  Following is the

relevant extract of the conclusions and recommendations made by the

State:

“6. CONCLUSIONS & RECOMMENDATIONS

Thus, the various concerns that arise from  all the above data are summarized  below for the consideration of the  All India  Council of Technical Education:­

Issue Recommendation  The AICTE has been

sanctioning the Colleges routinely every year without actually assessing the ‘Need’ of the State. With a massive number of such Colleges established  in the State, there is a severe shortage of qualified Teaching faculty, which is seriously affecting the  Quality of Education offered by many of these institutions. Moreover,  it is observed that a large number of seats are falling vacant every year as the total number of seats available is far more than the takers. During the year 2016­17 for instance, there are about 32784 seats and during 2017­18, there are 29367 seats that remained vacant in the

 The AICTE may thus  declare  a holiday on the establishment of New Technical Institutions from the Academic Year 2018­19. The holiday applies not only with regard to the establishment of New Engineering Colleges in the State but may also be extended to B.Pharmacy, MBA/MCA Institutions.”

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Engineering course (based on the affiliations). With poor admissions, the ‘financial viability’ in running several colleges is becoming a problem and thus making Colleges to offer poor Quality of Education, which is totally undesirable. In fact, in several Colleges, the admissions during last year and this year in Engineering and MCA programmes are just single digits. This situation has led to an unhealthy competition among the Colleges for admissions by  wooing the students with all sorts of false promises. This is highly harmful to the Professional Educational System in the State.   

“OTHER RECOMMENDATIONS

In view of all  the above and to  improve the Quality of Education in Private, Unaided Colleges in the State of Telangana, it is recommended that:

 New Programmes may be sanctioned such as Mining, Granite, Textile, Pharmacy,  Automobile,  Civil  Eng.  Construction Technology based on New Technologies and the needs of the Industry keeping in view the 14 Thrust Areas mentioned in Para 5 of Page 14 of this Plan."  

20. Admittedly it is not a case of new technology to be adopted for

the proposed course of D­Pharma by the college in question. Thus, the

State  had  put  up  a  moratorium  for  Pharmacy  courses  also.   It is

significant to note that in the conclusions and recommendations,  it

was  observed that  AICTE  had  permitted imbalanced  growth  of the

institutions in the area which could be avoided.   In fact, we see that

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such an expert body often ignores such relevant factors which makes

action arbitrary.

21. The decision taken by the State Government to impose a

moratorium as  apparent from  facts reflected in  perspective  plan  is

based on a survey and supported by the data. Considering the fact

that seats are going abegging. Even in 2017­18 in the Pharmacy

course, data has been given in the SLP that among 56 colleges

affiliated to the University, 30 were in the city of Hyderabad and out of

total 1630 seats, 173 had remained vacant. Thus, it is apparent that a

large number of seats remained vacant. Not more than 30 seats can be

allotted to one institution.   In the circumstances, the observation of

the High Court that it was for the institution to worry and consider the

viability and it was not for the University or State Government to take

same into consideration, is completely a flimsy and impermissible

reason employed.   The mushroom growth of educational institutions

cannot be permitted. The observation made by the High Court that

unfit institution will automatically shut down the courses is not the

judicious approach warranted in such matters. It is not only that the

requirement of the locality should exist but it has to be ensured that

only the standard educational institutions should come up and once

they come up, they should be able to  survive.  A  large  number of

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Institutions are not to be opened up to die an unnatural death on the

principle of survival of the fittest and due to non­availability of

teachers/students.  Standard  of education  cannot  be compromised

and  sacrificed  by  permitting institutions to come  up in  a reckless

manner without there being any requirement for them at a particular

place. There is a need to strengthen the existing system of education

not to  make it  weak  by further complicating the issues  by  wholly

unwarranted approach as the one adopted by the  High  Court. It

cannot  be left at the choice of the institution to open the course

whenever or wherever they desire. The High Court has also erred in

observing that the seats remaining vacant could not be the relevant

criteria for refusal of NOC.

22. Mr. V. Giri, learned senior counsel appearing for the respondents

as referred to the decision in State of T.N v. Adhiyaman Educational &

Research Institute, (1995) 4 SCC 104, to contend that once the field is

occupied by the AICTE Act enacted under Entry 66 List I, the State

Legislation falling under Entry 25 List III to the extent it is in conflict

with the Central Legislation, would be void.   In case of repugnancy

between legislation made by Parliament and that made by the State

Legislation on a subject covered under List III, the Central Legislation

shall  prevail  and to  that  extent, the State Legislation shall  be  void

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unless it is saved by Article 254(2) of the Constitution.  The expression

coordination used in Entry 66 has been considered by the Court to

mean harmonization with a view to  forging a uniform pattern for a

concerted  action  according to a certain  design, scheme  or  plan  of

development.   It is further  observed that  whether the  State law  is

repugnant to the Central Act under Entry 25 will  depend upon the

facts of each case.   Under the  AICTE  Act, the  Council has been

established for coordinated and integrated development of the

technical education system at all levels throughout the country.  It is

required to ensure proper maintenance of norms and standards in the

technical education system.   The norms and standards to be

prescribed for the technical education intend to ensure the growth of

technical education in all parts of the country.   The norms and

standards have to be reasonable, adaptable, attainable and

maintainable by institutions throughout the country.   When it comes

to such a matter, the provisions of the State Act which impinge upon

the provisions of the Central Act are void and therefore unenforceable.

So far as the matters which fall under Section 10 of the AICTE Act is

concerned, in case of an institute imparting technical education, the

Central Act has to prevail.   At the same time, this  Court in the

aforesaid decision has observed that provisions of the University Act

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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 for

affiliation will have to be in conformity with the norms and guidelines

prescribed  by the  Council in respect of the  matter entrusted to it

under Section 10 of the AICTE/Central Act.   The Court further

observed that so far as technical institutions are concerned, the norms

and the standards and the requirements for their recognition and

affiliation which may be laid down by the State Government and the

University should not be in conflict and inconsistent with those laid

down by the Council under the Central Act.

23. In Adhiyaman Educational & Research Institute case (supra), the

power of the State Government to grant permission to start a technical

institute that  is an Engineering College  in the State of  Tamil Nadu

came up for consideration.  College was functioning and a report was

received from the  Director of Technical Education after inspection

regarding lack of infrastructural facilities.  The High Power Committee

in its report stated that conditions imposed by the Government were

not fulfilled.   The Director, Technical Education issued a show cause

notice asking the College to explain why the permission granted by the

Government to start the college should not be withdrawn.   The High

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Power  Committee also resolved to reject the request of the Trust

regarding provisional affiliation for 1989­90.  Questioning the same a

writ petition was filed.  It was held that the State Government had no

power to cancel the permission granted to the Trust to start the

College.  It was required to be canceled under the AICTE Act.   It was

observed that duty was imposed on the Council for recognizing or de­

recognizing any technical institution in the country.

24. In  Adhiyaman Educational  & Research Institute case  (supra),

question arose as to the power of the State  Government and the

University respectively to de­recognize and disaffiliate an Engineering

College.   Considering  Entry 66 of List I and Entry 25 of List III, this

Court observed that coordination and determination of standards in

institutions for higher education or research and scientific and

technical institutions has always remained the special preserve of

Parliament.  Considering the constitution of Council under the AICTE

Act, it was a representative body of various States and Union

Territories and the Council functions are enjoined under Section 10 of

the AICTE Act.   This Court opined that Council has been established

to  promote the  qualitative improvement  of education in relation to

planned quantitative  growth.  Norms and standards are  set  by the

Council so as to prevent lopsided or an isolated development of

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technical education in the country.  Unnecessarily high  norms or

standards, say for admission to the technical institution or to pass the

examination may not only deprive a vast majority of the people the

benefit of the education and the qualification but would also result in

concentrating technical  education  in  the hands of the affluent  and

elite group and ultimately result  in depriving the country of a large

number of otherwise deserving technical personnel.   This Court has

considered the provisions of the State Act and the provisions of the

Central Act in various areas and in particular allocation and disbursal

of grants.  This Court observed:

“27. The provisions of the State Act enumerated above show that if it is made applicable to the technical institutions, it will overlap and will be in conflict with the provisions of the Central Act in various areas and, in particular, in the matter of allocation and disbursal  of  grants, formulation  of schemes  for initial  and  in­ service training of teachers and continuing education of teachers, laying down norms and standards for courses, physical and institutional facilities, staff  pattern,  staff qualifications,  quality instruction assessment and examinations, fixing norms and guidelines for charging tuition and other fees, granting approval for starting new technical institutions and for introduction of new courses or programmes, taking steps to prevent commercialisation of technical education, inspection of technical institutions,  withholding or  discontinuing grants in respect of courses and taking such other  steps as may be necessary  for ensuring the compliance of the directions of the Council, declaring technical institutions at various levels and types fit to receive grants, the Constitution of the Council and its executive Committee and the Regional Committees to carry out the functions under the Central Act, the compliance by the Council of the directions issued by the Central Government on questions of policy etc. which matters are covered by the Central Act. What is

24

further, the primary object of the Central Act, as discussed earlier, is to provide for the establishment of an All India Council for Technical Education with a view, among others, to plan and coordinate the development of technical education system throughout the country and to promote the qualitative improvement of such education and to regulate and  properly maintain the norms and standards in the technical  education system which is a subject within the exclusive legislative field of the Central Government as is clear from Entry 66 of the Union List in the Seventh Schedule. All the other provisions of the Act have been made in furtherance of the said objectives. They can also be deemed to have been enacted under Entry 25 of List III. This being so the provisions of the State Act which impinge upon the provisions of the Central Act are void and, therefore, unenforceable. It is for these reasons that the appointment of the High­Power Committee by the State Government to inspect the respondent­Trust was void as has been rightly held by the High Court.”

The Court has observed that the State Act which impinges upon

the provisions of the Central Act has to be held to be void.  In the case,

the issue  was of derecognition.   The power of the recognition of

institution is squarely reserved under the Central Act i.e., AICTE Act.

Thus, it would have power to derecognition also and for the purpose,

the procedure has been given in the AICTE Act.  Thus, in Adhiyaman

Educational  & Research Institute, the factual situation  was totally

different.   In that context, the discussion has been made about the

provisions of Section 10 and the provisions of the State Act of Tamil

Nadu.  The provisions in State Act of 1982 are not repugnant to AICTE

Act.   The vires of provisions and validity of Act of 1982 has not been

questioned and otherwise, also there is no room to accept the

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submission  that the  provisions  of  Section 20 of the  Act,  1982 are

inoperative.  

25. In  Jaya Gokul Education Trust v. Commissioner & Secretary to

Government of Higher Education Department, Thiruvananthapuram,

Kerala,  (2000)  5  SCC 231, relied on  by the respondents,  question

arose for consideration whether under Clause 9(7) of the Kerala

University First Statute, which provided that Syndicate has the right

to decide about the affiliation to be granted or not after considering the

views of the Government.   The provisions .which came up for

consideration have been referred to :  

“20. The only provision relied on before us by the State Government which according to its learned senior counsel, amounted to  a  salutary 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)­(6)...

(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 ascertaining 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 meeting:  

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.”

(emphasis supplied)

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As the provisions of Clause 9(7) of the Statute merely required

the University to obtain the views of the State Government, that could

not be characterized as requiring the approval of the State

Government.   This Court also opined that the question of affiliation

was a different matter and was not covered by the Central Act.   On

considering the provisions under Clause 9(7) of Kerala University First

Statute, this Court held that there was no statutory requirement for

obtaining the approval of the State Government even if there was one,

it would be repugnant to the AICTE Act.  The decision is based on the

provisions of Clause 9(7).  

26. The provisions contained in Section 20 of the Act of 1982

involved in the instant case are different and its validity vis­à­vis to

AICTE Act has already been upheld by this Court.  Apart from that, it

has not been pointed out that in the exercise of powers under Section

10 of Central Act, norms have been fixed by the AICTE as to how many

colleges should function at a particular city/place.  Definitely the State

Government and the University, in the absence of any such

norms/rules having been framed by the AICTE can always have their

say as per applicable statutory provisions or policy.  In the  instant

case,  Section 20 of Act of 1982, enables  Universities to grant no

objection certificate after considering the local requirement and as no

27

guidelines in this regard have been framed by the AICTE, it cannot be

said to  be an exercise of  power against  the norms fixed by AICTE.

Consequently,  no repugnancy  arises.  The  mushroom growth  of the

institutions cannot be permitted, was rightly pointed out in the

perspective plan.   A large number of  institutions have already been

permitted to function in the State by the Central Bodies.  It is painful

to note that at several places mushroom growth of the institutions had

been permitted by such bodies in an illegal manner.  In case there is

no check or balance and the power is exercised in an unbridled

reckless manner, the sufferer is going to be the standard of education.

At the same time, there is a necessity of good institutions with new

technology, but at the same time mushroom growth of the

substandard  institutions cannot  be  permitted.   There  has to  be  a

requirement of educational institutions in the locality and that is one

of the main considerations.

27. The counsel appearing for the respondents were not able to point

out any of the provisions in the AICTE Act and rules for adjudging

requirement of the locality have been framed by the Council.   In the

absence of guidelines or norms framed to check the mushroom growth

of the institutions, the university cannot be deprived of considering the

said aspect.  The State Government had also sent a communication to

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AICTE  regarding the  alarming increase in the  number  of technical

educational institutions in the area in question and imbalanced

growth.  The decision of State has been taken in an objective manner

and the same is based on the consideration of data and could not be

said to be irrational or arbitrary in any manner whatsoever.  The policy

decision of the State Government cannot be said to be illegal and on

that basis, the University has taken the decision in terms of Section 20

of the Act of 1982.

28. In State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra

Mahavidyalaya, (2006) 9 SCC 1, question arose for consideration as to

the power of the Government of Maharashtra as it refused to issue no

objection certificate for starting new BEd college for the academic year

2005­06 in view  of the provisions of  National  Council for  Teacher

Education Act (NCTE Act).  Though the permission was granted by the

Council under Section 14 of the NCTE Act to start the college.   This

Court held that university was bound to implement a decision of the

NCTE Act and grant affiliation in accordance therewith irrespective of

the bar under Section 83 of the Maharashtra Universities Act, 1994.

This Court also observed that it does not imply that under Sections 82

and 83 of the Maharashtra Universities Act, 1994 were null and void.

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They would not apply to the case but in other appropriate courses.

This Court observed that:

“61. Interpreting the statutory provisions, this Court held that by enacting Section 10A, Parliament had  made "a complete and exhaustive provision covering the entire field for the establishment of a new medical college in the country". No further scope is left for the operation of the State Legislation in the said field which was fully covered by the law made by Parliament. The Court, therefore, held that the proviso to Sub­section (5) of Section 5 of the State Act which required prior permission of the State Government for establishing a medical college was repugnant to Section 10A of the Central Act and to the extent of repugnancy, the State Act would not operate. The Court noted that in the scheme that had been prepared under the Regulations for the establishment of new medical colleges, one of the conditions for the qualifying criteria laid down was 'essentiality certificate' regarding the desirability and of having the proposed college at the proposed location which should be obtained from the State Government. The proviso to Sub­section (5) of Section 5 of the Act, therefore, must be construed only as regards "proposed location". The 'essentiality certificate', however, could not be withheld by the State Government on any 'policy consideration' inasmuch as the policy and the matter of establishment of new  medical college rested  with the  Central Government alone.

62. From the above decisions, in our judgment, the law appears to be very well settled. So far as co­ordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and State has no power to encroach upon the legislative  power  of  Parliament. It is  only  when  the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as State Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution.”

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29. In  Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya  (supra)

Court further observed that proviso to sub­section 5 of Section 5 must

be construed  with respect to “proposed location”.  The  essentiality

certificate could not be dealt with by the State Government on any

policy consideration inasmuch as the policy and the matter of

establishment of new medical college rested with the Central

Government alone.   In the instant case, it is mainly with respect to

local area i.e., the city of Hyderabad which power has been saved by

this Court even in the aforesaid dictum.

30. In  Thirumuruga Kirupananda Variyar Thavathiru Sundara

Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu,

(1996) 3 SCC 15, the provisions of Tamil Nadu Medical University Act,

1987 came up for consideration.   The provisions of the Act are

different.   For the establishment of a Medical College, State

Essentiality Certificate and affiliation from University is required.   In

the instant case, the  matter is about the proposed location and

affiliation out of 36 Pharmacy colleges in the State of Telangana and

30 are located in Hyderabad city alone which are more than adequate

in number.  Thus, rightly decision has been taken not to start another

new course at the proposed location at Hyderabad city.  Thus, the said

decision is no avail to espouse the cause of the respondents.

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31. The respondents  have also referred  to the decision  in  Rungta

Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda

Technical University, (2015) 11 SCC 291, wherein question came up for

consideration with respect to the power of  examining authority  i.e.,

University and State Government, to withdraw provisional affiliation or

to decline grant of affiliation.   The decision was taken to disapprove

provisional affiliation granted to the college.  This Court observed that

the objections on the basis of  which action was taken squarely  fall

within the  sweep of  one  or the  other  areas  which only  AICTE has

exclusive jurisdiction to deal with.  These shortcomings ought to have

been brought to the notice of AICTE to take appropriate action against

the college.  On facts of the instant case, the  decision cannot  be

applied as it is not the case of shortcomings.  

32. Resultantly, the appeal deserves to be allowed, same is hereby

allowed.  We quash the impugned judgment and order.  No costs.

…………………………..J.    (Arun Mishra)

.……..…………………..J.     (Indira Banerjee)

October 29, 2018    New Delhi.