The State of Kerala v. KMCT Polytechnic College

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22ND DAY OF AUGUST 2017/31ST SRAVANA, 1939 WA. No.1239 of 2017 () ------------------------ (AGAINST THE JUDGMENT DATED 05-06-2017 IN WP(C) NO.9371/2017.) ## APPELLANT(S)/RESPONDENTS: 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM STREET, FORT P.O., THIRUVANANTHAPURAM-695023. BY ADDITIONAL ADVOCATE GENERAL SRI. K. K. RAVINDRANATH ## RESPONDENT(S)/PETITIONER: KMCT POLYTECHNIC COLLEGE, MAMPARA, PAZHUR P.O., KUTTIPPURAM, MALAPPURAM-679571, REPRESENTED BY ITS PRINCIPAL. ## BY ADV. SRI. GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, ALONG WITH WA. 1271/2017 & OTHER CONTD. APPEALS, THE COURT ON 22-08-2017 DELIVERED THE FOLLOWING: ## **NAVANITI PRASAD SINGH, C.J.** & **RAJA VIJAYARAGHAVAN V., J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of August, 2017 ## **JUDGMENT** ## Navaniti Prasad Singh, C.J. This group of intra court appeals have been preferred by the State Government against the common judgment dated 05.06.2017 passed by a learned single Judge of this Court allowing a number of writ petitions, including W.P.(C) No.17256 of 2017 - Director, M.G.M. Polytechnic College v. State of Kerala & Others and analogous cases. The question of law being the same, the writ petitions were taken up and disposed of by a common judgment and so, the appeals have also been taken up for final disposal at this stage itself, with the consent of the parties, as the matter is urgent. 2. We have heard the learned Additional Advocate General Sri. K. K. Ravindranath appearing for the State appellants, the learned Central Government Counsel Sri. S. Krishnamoorthy appearing for the All India Council for Technical Education, the learned Senior Counsel Sri. Kurian George Kannanthanam appearing for the respondent in W.A. Nos. 1274 & 1343 of 2017, the learned counsel Sri. George Poonthottam appearing for the W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:2:-** respondent in W.A. Nos. 1239, 1271 and 1342 of 2017, the learned counsel Sri. Mohan Jacob George appearing for the respondent in W.A. No. 1336 of 2017 and the learned counsel Sri. Millu Dandapani appearing for the respondent in W.A. No. 1320 of 2017. 3. The question involved is virtually regarding the legality of a policy decision of the State Government dated 22.08.2016 whereby, the State Government has decided not to grant sanction for starting new Unaided Colleges in the State in the self-financing sector. Pursuant to this policy decision, on 06.10.2016, the State Government informed the All India Council for Technical Education (hereinafter referred to as, the 'Central Council', for brevity) that they have decided not to sanction any Colleges as per their policy, especially Engineering Colleges and hence, the Central Council should seek remarks/views of the Government before granting approval to new Technical Institutions, in future, in the State of Kerala in the self-financing sector. Equally in challenge is the order dated 22.05.2017 of the Government and similar orders, though on different dates, in respect of M.G.M. Polytechnic College, the writ petitioner in W.P. (C) No.17256 of 2017. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:3:-** 4. On behalf of the appellants, basic reliance has been placed on the decision of the Apex Court in **Govt. of A.P. and Anothe** r v. **J.B. Educational Society and Another** [(2005) 3 SCC 212] for the proposition that the role of the State Government with regard to local needs cannot be ignored and consequently, the State Government ought to be allowed to have the final say, whether to permit establishment of new Technical Colleges/Polytechnics in the State or not. In view of the aforesaid decision, it was submitted that if the State Government takes a policy decision not to approve establishment of new Colleges/ Polytechnics, the Central Council ought not to and cannot grant approval for the same and accordingly, the learned single Judge erred in deciding the case otherwise. It is submitted that the appeals should be thus, allowed and approvals as granted by the Central Council be cancelled. 5. _Per contra_ , on behalf of the writ petitioners, who are respondents in these appeals, it is submitted that the decision of the Apex Court in the case of _**J.B. Educational Society**_ (supra) is clearly distinguishable, both in facts and in law, and would have no application to the present case. Further, relying on the decision of the Apex Court in **Thirumuruga Kirupananda** W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:4:-** ## **Variyar Thavathiru Sundara Swamigal Medical Educational** **& Charitable Trust** v. **State of Tamil Nadu and Others** [(1996) 3 SCC 15] followed by **Jaya Gokul Educational Trust** v. **Commissioner & Secretary To Government, Higher Education Department** [(2000) 5 SCC 231], a case originating from this State of Kerala to the recent judgment of the Apex Court in the case of **Rungta Engineering College, Bhilai and Another** v. **Chhattisgarh Swami Vivekanand Technical University and Another** [(2015) 11 SCC 291], it is submitted that the legal position is established that the State has no such veto power and it ultimately vests with the Central Council to give approval or not, especially considering that the Eleven Judge Bench in the case of **T.M.A. Pai Foundation and Others** v. **State of Karnataka and Others** [(2002) 8 SCC 481] and the cases following it which have clearly held that setting up of educational institutions would come within the meaning of the expression “ _occupation_ ”, as contemplated under Article 19(1)(g) of the Constitution of India and it is a fundamental right, which can only be restricted under Article 19(6) by law or under authority of law. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:5:-** 6. For consideration of the facts, we would refer to the facts of W.A. No.1336 of 2017 arising from W.P.(C) No.17256 of 2017. First, we would like to note and dispel a false notion that prevails in the State, that the educational institutions in the State are meant to cater to the needs of local residents of the State only. We have to see the educational needs of the citizens of the country as a whole and the educational institutions are national assets for building the generation next for the country. A view that educational institutions are to cater to the local needs only is a myopic view, the earlier the said view is dispelled, the better it is. The undisputed fact that a large number of students migrate to other States for education, would show that there is lack of quality education in the State. Further, even though there are several educational institutions in the State, great uncertainty prevails in the matter of admissions, because of frequent change in Government policies and/or defective execution thereof. 7. Education is a means to achieve livelihood, liberty from poverty and impoverishment. This State is probably the only State in this country, which can be proud of having achieved 100% literacy for several past decades. But, 'literacy' means education upto primary level. That only educates a person to read W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:6:-** and write, but, does not get them jobs to earn their livelihood. Jobs or employment opportunities in the State being limited, they have to move out to seek opportunities. Move out not only from the State to other States in the country, but move out of the country also. For this, it is essential to have provisional or vocational courses and to obtain degrees/certificates in relation thereto. History will bear out that Keralites are sought after all over the country, for, they are educated. Statistics have shown that Kerala, amongst all the States, has one of the highest inward foreign exchange remittances, which is more than the revenue of the State. All this is possible and shall continue to remain so only if, variety of post school vocational/professional courses are made available in the State. 8. We are here concerned with Polytechnics. They are educational institutions not imparting higher technical education, but only vocational courses after a person passes Class X stage. By and large, these courses are certificate courses of two years, specifically for one or other vocation to enable a person to get employment. The Polytechnics, though use the expression “ _College_ ”, are not governed by University Statutes. They are governed by the All India Council for Technical Education Act, W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:7:-** 1987 and the Council constituted thereunder. The role of Central Council is all encompassing in respect of such Polytechnics, which cannot be established without the approval of the Central Council. But, the State Government also has a role in as much as the State is, to grant certificates in relation to the vocational courses and conduct examinations for it. 9. It is the Directorate of Technical Education of the State that conducts the certificate examinations. It is that Directorate, which controls the admissions of students to the various Polytechnics all over the State, including Government and other aided Polytechnics, through a Common Admission Procedure and Programme. 10. The problem that arises in the present appeals is, though the Central Council approves such Polytechnics, the State Government refuses sanction, thus depriving them from deriving any benefits in respect of approval granted by the Central Council in as much as non-sanction by the State puts at naught the approval as granted by the Council whereby, the Polytechnics cannot take admissions nor their students can participate in the examinations for grant of certificates, all of which are controlled W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:8:-** by the Technical Education Department of Kerala. It is this controversy, which arises again and again in the State, which has created and continues to create, year after year, great uncertainty amongst people and organisations trying to set up Polytechnics, because they feel that there is need for the same and the students seek such education. 11. At this stage, it may be relevant to refer to a paper with regard to the technical education, as is available on the website of the Department of Higher Education, Ministry of Human Resources Development, Government of India, which is produced as Exhibit P16 to the writ petition filed by the M.G.M. Polytechnic College. This paper, _inter alia,_ provides scheme for financial assistance to the State Governments for setting up of Polytechnics in their State as well. But, notable is the reason why such Polytechnics are required presently. We may quote some parts thereof: ## **1.1 Polytechnic Education - An Overview** “Polytechnic education in our country constitutes an important segment of Technical Education and contributes significantly to the economic development. Aimed at creating a vast amount of technical manpower, the polytechnics W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:9:-** have played a pivitol role in providing skilled manpower at various levels for organized, unorganized and Service Sectors. Generally, the polytechnics in the country have been offering three year diploma courses in conventional disciplines such as Civil, Electrical and Mechanical Engineering. However, during the last two decades many polytechnics have started offering courses in emerging disciplines such as Electronics, Computer Science, Medical Lab technology, Hospital Engineering, Architectural Assistantship etc. In addition, many institutions are also offering specialized diploma programmes in areas such as Leather Technology, Sugar Technology, and Printing Technology etc. Many diploma programmes are also being offered suited to women such as in Garment Technology, Beauty Culture and Textile Design etc. Polytechnics are meant to provide skills after class X and the duration of diploma programmes is 3 years. Polytechnics are also offering post diploma and advanced diploma programmes of 1-2 year's duration in different specializations. ## **1.2 Importance of Polytechnic Education** This Mission's basic objective is to create a trained Skilled Manpower of atleast 500 million persons by 2020. To translate the mission objective into action, several new initiatives are to be taken by various key Ministries. New Schemes orienting to Skill Development are to be launched. The existing W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:10:-** capacity for training manpower is to be expanded many fold. This will include opening of new Industrial Training Institutes (ITIs) and Polytechnics., new Vocational Schools and Skill Development Centres. Through this, it is to ensure that annually over 100 lakh students get vocational training, which is a four-fold increase from today's level. Towards this, the active help of the private sector is also planned in a big way so that they do not only assist in the training but also lend a hand in providing employment opportunities. Technical Education is instrumental in making a remarkable contribution to economic growth of the Developing Countries by ways of suitable manpower production according to the needs of the Industry, Society and the Global World as a whole. To produce contemporary skilled manpower & technocrats suited to the present era of science and technology is the need of the hour. Polytechnic education has therefore responded to the challenges of industrialization for self-reliance, as well as meeting international demands. The aim of the polytechnic education is to create a pool of skill based manpower to support shop floor and field operations as a middle level link between technicians and engineers. The pass-outs of Diploma level institutions in Engineering & Technology play an important role in managing shop-floor operations. It is further an established W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 ## **-:11:-** fact that small & medium Industry prefer to employ Diploma Holders because of their special skills in interpreting engineering, drawings, estimating, costing, billing, supervision, measurement, testing, repair & maintenance etc. ## **1.3 Slow and Uneven Growth of Polytechnic Education** During the last decade, our country has witnessed a tremendous increase in the number of Engineering Colleges providing technical manpower at Degree level. However, the growth of technical institutions at diploma level has not been proportionate to the degree in Engineering. Whereas, the expansion of Degree level institutions has been several fold, the Diploma institutions expansion has suffered a setback. At present, the student intake in degree level courses is around 8 lakh per annum as against 5 lakh in diploma level. The present ratio of degree to diploma holders is around 1.6:1, whereas ideally it should be 1:3. This is in view of more private initiatives for starting colleges as self financing institutions coming up in the degree level institutions compared to the diploma level institutions. “ 12. Now, we may refer to the orders which has been impugned in the writ petitions before noticing the statute and case law in this regard. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:12:-** ## 13. On 22.08.2016, a policy decision was taken by the State Government as under noted, which is Exhibit P7 in the first writ petition: “The Government have examined the issue of permitting of new Self Financing Colleges and Courses in the Higher Education field in the State and the revised guideline as under are being issued by this Order: 1. Sanction for starting new Unaided Colleges in the State in the Self Financing Sector will not be given. 2. Without sanctioning additional posts, by utilizing the service of the existing teachers and the available physical infrastructure facilities, if possible, application for starting new courses in the Government/Aided Colleges will be considered. 3. In the Aided Colleges, sanction to start new Unaided Self Financing Courses will not be granted. 4. Sanction will be given for continuance of the 1[st] year course which have been commenced in the previous academic year in existing Unaided Self Financing Colleges and which have completed the 1[st] year of the course. 5. To remedy the difficulties felt by the students to get admission to the Degree Courses, in the current academic year, based on the W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:13:-** recommendation of the University for the academic year 2015-2016, if found necessary, the Government will consider the sanctioning of Degree Courses in the existing Unaided Self Financing Colleges for the current year.” 14. This was followed by communication dated 06.10.2016 from the State Government to the Central Council requesting that, as the Government have decided not to sanction new Colleges vide its order dated 22.08.2016 (Exhibit P7), before the Council accords approval, they must seek the remarks/views of the State Government. The communication reads as under: “Inviting attention to the captioned subject, I am directed to inform you that, at present, in the State of Kerala, large number of technical institutions especially Engineering Colleges are already functioning in Self-financing Sector. Pursuant to this, Government have decided not to sanction new colleges in Self-financing Sector vide G.O.(Ms) No.178/2016/H.Edn. dated 22-08-2016. Hence I am to request you to seek the remarks/ views of the State Government before according approval to new technical institutions in future, in the State of Kerala in Self-financing Sector.” 15. It appears that M.G.M. Polytechnic College, the petitioner in W.P.(C) No. 17256 of 2017, applied for establishment approval to the Central Council and it received the same. But W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:14:-** then, the State Government was not sanctioning the establishment of the Polytechnic College. They filed W.P.(C) No.16217 of 2017, which was disposed of by judgment dated 19.05.2017 directing the Principal Secretary, Higher Education Department, Government of Kerala to consider, after hearing the parties, and pass appropriate orders. Accordingly, after hearing, the State Government refused to entertain the application for its approval, in other words, refused to grant approval and rejected the same by Exhibit P11 order dated 22.05.2017. The order would show that it was not on account of any shortcomings of the College or the Polytechnic that approval was refused, but on general grounds leading to alleged downward trend in the quality of education. The order of the Government is Exhibit P11 in the first writ petition and is quoted hereunder: “Accordingly, the petitioner, Shri. Ahinus H., Director, M.G.M. Polytechnic College, Kilimanoor was heard in person at 11.00 AM. on 22.05.2017. During the hearing the petitioner informed that AICTE approval was sought for the M.G.M Polytechnic College as per application dated 27.02.2017 and that the College received AICTE approval as per their letter of approval dated 30.04.2017 and that an application for N.O.C and execution of agreement with Government for 50% seat sharing was W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:15:-** submitted to Government on 8.05.2017. The petitioner also informed that they had, as per their letter dated 8.05.2017, requested the Director of Technical Education to take necessary steps to include their college for the online allotment process for admissions to be conducted for the academic year 2017-18 itself and had furnished Demand Draft for Rs.25,000/-, Letter of Approval from AICTE, duly filled application and hard copy of the online application submitted to AICTE along with the same. The petitioner informed that an amount of Rupees Twelve Crores was invested for the project for providing necessary infrastructure facilities as required as per AICTE norms and therefore requested necessary orders for issue of N.O.C, execution of agreement with Government for 50% seat sharing and for the inclusion of the M.G.M Polytechnic College in the online allotment process for admissions to be conducted for the academic year 2017-18. Government have examined the matter in detail. The AICTE, while granting letter of approval, would consider only the infrastructure facilities being provided by the Self-financing colleges and not the demand for such a course in the area or the availability of the right inputs or such other factors. The State Government, while giving N.O.Cs will be considering all such issues including the necessity of the conduct of the course, the overall quality of technical education in the State, employability of W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:16:-** successful candidates etc. The proposal for setting up new colleges must be in consonance with the policies and prospective plan for technical education of the concerned state government. The state government does not feel that there is an appreciable increase in scope for polytechnic education especially in self financing sector in the State. On the other hand, indiscriminate sanctioning of new self-financing colleges/ courses would lead to a downward trend in the quality of education in the State as in the case of Engineering colleges in the State where the pass percentage in Self-financing Engineering colleges has shown a significant downward trend. Considering these factors, Government are not in a position to entertain the application for approval of the new Self-financing Polytechnic College viz, MGM Polytechnic College, Kilimanoor at present and hence reject the same. This order is issued in compliance to the directions in the judgment dated 19/5/2017, in WP(C) No.16217/2017.” ## 16. It is thus, this decision and the preceding orders that are basically under challenge. 17. Now, we may refer to statute law. The first thing we would like to note is that the order dated 22.08.2016 issued by the State Government (Exhibit P7 in the first writ petition) is a policy declaration, which is not made with respect to the exercise W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:17:-** of power under/or referable to any statute having force of law. Whereas, the communication dated 06.10.2016 of the State Government to the Central Council is a mere communication of the views, in general, of the State not referable to any particular case. Whereas, Exhibit P11 in the first writ petition is the order dated 22.05.2017 of the State Government pursuant to the directions of this Court in the earlier round of litigation to the State to hear the writ petitioner (M.G.M. Polytechnic College) and give reasons why the State did not intend to sanction the establishment of the said institution, in particular. 18. We may now refer to the All India Council for Technical Education Act, 1987 (hereinafter referred to as, the 'Central Act'). This Act is made with reference to field of legislation reserved to the union in terms of Entry 66 List I of the Seventh Schedule to the Constitution. The Act provides for establishment of All India Council for Technical Education with a view to the proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned qualitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:18:-** matters connected therewith. Technical institution and technical education have been defined under sub-sections (h) and (g) of Section 2 of the Central Act, which are quoted hereunder: - _“2(h) ”Technical institution” means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;_ - _2(g) “Technical education” means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare;”_ 19. Under Section 10 of the Central Act, it is stated that it is the duty of the Council constituted under the Act to take all such steps as the said Council may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purpose of performing its functions under the Act, the Council may perform various functions as specified under various sub clauses of Section 10 W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:19:-** ## which includes sub clauses (a), (b), (g), (i), (j), and (k), which are quoted hereunder: _(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;_ _(b) co-ordinate the development of technical education in the country at all levels;_ _(g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;_ _(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;_ ## _**(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;** ”_ 20. In exercise of these wholesome powers/duties/ obligations as bestowed on the Central Council, it is authorised to make Regulations under Section 23(1) thereof, _inter alia_ , with W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:20:-** regard to grant of approval for starting new technical institutions. It is not in dispute that the Central Council has, in supersession of earlier regulations, now framed All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations, 2016 (hereinafter referred to as, the '2016 Regulations'), with effect from 30.11.2016. Some of the relevant clauses of the 2016 Regulations are quoted hereunder: - _“1.2 These Regulations shall apply to Technical Institutions conducting and/or intending to conduct technical education and such other Programmes and areas as notified by the Act._ - _2.5 “Applicant” means an applicant who makes an application to the Council for seeking any kind of approval under these Regulations._ - _2.38 “Self-Financing Institution” means an Institution started by a Society/Trust/Company and does not receive grant/fund from Central and/or State Government and/or Union Territory Administration for meeting its recurring expenditure._ - _2.43 “Technical Institution” means an Institution set up by Government, Government Aided and SelfFinancing/Trust/Society/Company for conducting Courses/Programmes in the field of technical education, training and research in Engineering, Technology, MCA, Architecture, Town Planning, Management, Pharmacy, Hotel Management and_ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:21:-** _Catering Technology, Applied Arts and Crafts and such other Programmes and areas as are notified by the Act._ - _4.1 All Promoters of Technical Institutions shall seek prior approval of the Council for;_ - _a) Setting up new Technical Institution offering Technical Programme at Diploma/Post Diploma /Degree/Post Graduate Degree and Post Graduate Diploma/Collaboration and Twinning Programme between Indian and Foreign Universities or Institutions in the field of Technical Education, Research and training;_ - _b) Change of Site/Location of the existing Institution;_ - _c) Closure of Institution;_ - _d) Conversion of Women's Institution into Co-Ed Institution and vice-versa; and_ - _e) Conversion of Diploma Level into Degree Level and vice-versa_ - _4.11 The Council shall publish, from time to time,_ _**Approval Process Handbook** detailing the documents to be attached to the application, the fee to be remitted, the norms and standards, requirements and the procedure by which the applications are processed for grant of approval of existing Institutions/Promoters._ - _4.12 The applications received under Clause 4.1 and 4.2 of these Regulations shall be processed as per the procedures, norms and standards prescribed in the Approval Process Handbook as notified by the Council from time to time in addition to the existing Central, State and Local laws._ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:22:-** - _4.15 The applicant shall apply on the AICTE Web-Portal for setting up a new Institution, after remitting a requisite fee within the specified deadline notified as by the AICTE from time to time. A unique USER ID will be allotted to each new applicant._ _The applicant shall be required to submit online application for the cases listed in Clauses 4.1 and 4.2 of these Regulations using their unique USER ID allotted to them by remitting the prescribed fee through AICTE's payment gateway on the WebPortal, through Corporate Internet Banking, failing which the application shall not be considered._ _Applications shall be accepted subject to the realization of the Payment. Only those applications submitted till the last date including payment shall be considered for processing._ _**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 in 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_ _**.**_ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 ## **-:23:-** _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._ - _4.25 The recommendations of the Regional Committee shall be placed before the Executive Committee of AICTE to take decisions on grant of approval or otherwise to the Technical Institutions._ - _4.26 The Council shall grant the desired approvals only after confirming that the applicant meets all the norms and standards prescribed in Approval Process Handbook. From the self-disclosure information of the Institutions, the Council reserves the right to inspect and if it is found that information is false, the initiate penal action as per Approval Process Handbook._ - _4.32 In no eventuality, a Technical Institution without prior approval of the AICTE and Affiliating University/Board concerned, shall be allowed to participate in the counselling and admission process and to admit students, Affiliating University /Board shall not enroll students admitted in such_ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:24:-** _Technical Institutions, which do not have requisite prior approval of the Council._ - _4.33 Central/State Government/UT Administration concerned shall not permit any Technical Institution without requisite prior approval of the Council to admit students. “_ _(emphasis supplied)_ 21. As noted above, in Regulation 4.11, the Council has to publish Approval Process Handbook and accordingly, the Central Council published Approval Process Handbook 2016-2017. One of the clauses thereon are quoted hereunder: - _"1.6 Applicants are advised to apply_ _**only if the building for the purpose of application is complete as per the Infrastructure requirements without any deficiency** at the time of filing the application form on the AICTE web-portal www.aicte-india.org."_ _(emphasis supplied)_ 22. From the above Regulations and the Handbook issued, two things are apparent. Firstly, an application to set up a new technical institution has to be made after the building is complete as per the infrastructure requirement and that, the **views** of the State Government are solicited and not any sanction or approval of the State Government. In these appeals, it may be noted that W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:25:-** there is no dispute that upon receipt of application from the writ petitioners institutions, the Central Council sought the views of the State Government. The State Government did not respond, presumably because they had earlier itself written to the Central Council, a general letter indicating the policy of the Government being policy decision dated 22.08.2016 vide letter dated 06.10.2016. The 2016 Regulations would further show that in terms of Regulation 4.18, response has to be made by the State within twenty-one days, which response would then be taken into account. It clearly predicates that if within the time prescribed there is no response, it shall be presumed that the State has no objection. In the present case, finding that there is no response, the Council then granted approval. But, as noted above, this approval was made into a dead letter by the inaction of the State in including the writ petitioners in the Common Admission Process, thereby depriving the institutions, who had the approval of the Central Council from any intake of students, defeating the very purpose for which they had sought and got approval from the Central Council. This is what brought the writ petitioners to this Court. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:26:-** 23. It is, therefore, necessary to examine the law with regard to the rights of the State concerning establishment of Polytechnics, because, as noted earlier, not only does the State Government's control the admission process through the Common Admission Process, but its Directorate conducts the certificate examinations and grants the certificates, both of which if refused, would override completely the powers and purpose of of the Central Council under the Central Act to grant approval for establishment of a Polytechnic and make it nugatory and a useless exercise. 24. The first thing we would like to notice is that the right to establish an educational institution like the Polytechnic is no more the prerogative of the State nor a privilege to be conferred by the State, for, this matter has now been settled by Eleven Judge Bench of the Apex Court in the case of _**T.M.A. Pai Foundation**_ (supra) wherein, it has been held that setting up of education institution comes within the expression “ _occupation_ ”, as contemplated under Article 19(1)(g) of the Constitution and it is a part of fundamental right. Thus, being a fundamental right, it is subject to reasonable restrictions under Article 19(6) of the Constitution, but by law and not by executive fiat. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:27:-** 25. A fundamental right cannot be completely abrogated by a State much less by a simple policy decision. What we have here is the State's policy decision for a complete blanket ban on establishment of new Polytechnics, thus totally abrogating the fundamental rights. This is impermissible, especially when, we look to the Constitutional scheme wherein, the right to grant approval for establishing such a technical institution is reserved by law to the Central Council under the Central Act and only the views of the State may be taken into consideration by the Central Council for the said purpose. The policy of the State Government dated 22.08.2016, the communication of the Government to the Central Council dated 06.10.2016 and the order passed in relation to the M.G.M. Polytechnic College, the first writ petitioner, would show that they are not based on any particular deficiency in relation to any particular technical institution sought to be set up. But, it is based only in furtherance of a general policy totally banning the establishment of new institutions in the State and that too, on the grounds of alleged fall in standards, in general, as perceived by the State, which, as per the Central Act, is the responsibility of the Central Council. Having said so, we would now refer to some of the judgments in this regard. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:28:-** ## 26. The first case we would like to refer is _**Thirumuruga**_ _**Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust**_ (supra) wherein, the State Government had issued Tamil Nadu Medical University Act, 1987, Section 5(5) thereof empowered the University to affiliate College to the University only if “No Objection Certificate” was granted by the State Government. Subsequently, the Central Legislation, i.e. Indian Medical Council Act, 1956, was amended with insertion of Section 10A which, _inter alia_ , provides that no new Medical College shall be established except with the previous permission of the Central Government obtained in accordance with the said provision. 27. In nut-shell, what happened was that the intending Medical College in the self-financing sector applied to the State. But the State, on the basis of a policy decision, that it would not permit any new Medical Colleges to be established, refused the permission. There were several rounds of litigation and ultimately, when the matter was taken up by the Apex Court, the question arose as to the provisions of the State _vis-a-vis_ the Central Act. It may be noted that the State Act had presidential assent, but the Central Act was amended by introduction of, _inter_ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:29:-** _alia_ , Section 10A subsequent thereto. The Apex Court in the said decision held that the Central Legislation was with reference to Entry 66 of List I of the Seventh Schedule to the Constitution whereas, the State Legislation was with reference to Entry 25 List III of the Seventh Schedule to the Constitution, thus falling in the concurrent list. The field being totally covered by the Central Legislation, the State Legislation, even though it had the presidential assent in terms of Article 254(2) of the Constitution, in view of subsequent amendment to the Central Act, had to give way. It further held that no permission would thus be required from the State Government, which power is vested in the Central Statute now. It further held that the Essentiality Certificate cannot be withheld by the State Government on any policy consideration, because the policy, in the matter of establishment of new Medical Colleges, now rests with the Central Government alone. Therefore, it was held that refusal to grant Essentiality Certificate by the State Government could not be upheld. 28. This case brings out the legal issue that once the Central Legislation is passed with reference to Entry 66 List I, then, even though there be a State Legislation, which encroaches or is likely to encroach upon the field covered by the Central W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:30:-** Legislation, the State Legislation would be bad and further there could be no general policy decision to refuse grant of permission to establish the college, which policy now vests under the Central Legislation. 29. So far as the All India Council for Technical Education Act is concerned, it is a Central Act and similar to the Indian Medical Council Act. It is an enactment with reference to Entry 66 List I of the Seventh Schedule to the Constitution. The Central Act, as noticed above, reserve to itself the right to grant permission to establish new technical institutions. Therefore, the State cannot arrogate to itself this power. In the present case, there is no State Legislation at all, but a mere policy decision. 30. The next we would refer is the case of _**Jaya Gokul Educational Trust**_ (supra). This case arose from the State of Kerala itself and it deals with the AICTE Act, the Central Act, and the Regulations thereunder. In that case, the Trust, which wanted to establish Self-financing Engineering College, applied to the University of Kerala and the AICTE. The State Government refused to grant permission to the Trust for establishment of Engineering College. A writ petition was filed in the High Court by the Trust and learned single Judge allowed the writ petition, W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:31:-** quashed the order of the Government, and directed the Government to reconsider its decision and pass fresh order of affiliation to the University. The matter was taken in appeal. The Division Bench allowed the appeal, set aside the order of the learned single Judge and dismissed the writ petition. However, it gave the Trust liberty to make fresh application to the Government for according sanction for setting up the Engineering College. Hence, the appeal to the Apex Court. 31. It may be noted that the University Statute for grant of affiliation required the University to obtain the **views** of the State Government and in absence of approval by the State Government, the University expressed its inability to grant affiliation. The stand of the State was that it was the **policy** of the Government not to grant approval to the Self-financing Engineering Colleges and under this **policy** , the Government would not grant fresh approvals. It is in this perspective, Section 10(k) of the Central Act came up for consideration. Their Lordships clearly held that even if the State law provided for approval of the State Government, such law would be repugnant to the Central Act and void to that extent. Clause (9) of the Kerala University First Statute was then referred to, which dealt W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:32:-** with affiliation, and it was pointed out that the said provision only contain the ascertainment of **views** of the State Government, which could not be characterised as requiring the approval of the State Government. It further held that if the Statute was construed to mean approval of the State Government, then it would be repugnant to the provisions of Section 10(k) of the Central Act and would be void. Their Lordships held that the University could, therefore, not have sought the approval of the State Government. 32. The Apex Court referred to the decision in case of _**Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust**_ (supra) and pointed out that in that case, the Court clearly held that the Essentiality Certificate cannot be withheld by the Government on any policy consideration, because the policy in the matter of establishment of new Medical Colleges now rests with the Central Government alone. The Apex Court further went on to hold that the State Government cannot have any policy outside the Central Act and even if it had a policy, it should have placed the same before the Central Council and that too, before the latter granted permission. Once the Central Council granted approval then, W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:33:-** there was no scope of any objection or approval by the State. This case clearly brings out two things. First, there could be no policy of the State, because the policy now rests with the Central authority. Even where the State Statute required the views of the State Government, the expression **views** cannot be taken to be an approval. It would further be noticed that notwithstanding the views of the State Government, the ultimate decision rests upon the Central Council. 33. We may then, refer to the recent decision of the Apex Court in the case of _**Rungta Engineering College**_ (supra). Similar question arose this time from the State of Chhattisgarh and the provisions of Chhattisgarh Swami Vivekanand Technical University Act, 2004 as well as the AICTE Act. The University had disapproved setting up of new Colleges and refused to grant affiliation. It appears that it had initially pointed out certain defects and short comings. When the matter was pending before the Apex Court, the Apex Court directed the Central Council to make an inspection and report. The Central Council found no short comings. Still the University refused to grant affiliation. The Court noticed the previous legal authorities in this regard and held that in view of the decision in _**Jaya Gokul Educational**_ W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:34:-** _**Trust**_ (supra), the State could not have a policy outside the Central Act. All it could do was to place its views before the Central Council, who alone had the authority to decide the matter. The Court accordingly, set aside the decision of the University not to grant affiliation and directed the University to grant affiliation as there were no grounds to refuse grant of affiliation. 34. This line of cases clearly establish that in view of the responsibility entrusted to the Central Council under the Central Act, the State has no authority left to withhold permission to establish new Colleges much less as a matter of policy. As an examining body, the University of the State could put conditions to regulate the conduct of examinations, but, they could certainly not prohibit the establishment of such institutions. 35. Therefore, in our considered view, in the present appeals dealing with Polytechnic, there is no law, which authorises the State to take any decision in the matter. Hence, a policy decision by the State not to grant sanction for establishment of new Polytechnics would clearly be in teeth of the provisions of the Central Act and such a policy decision cannot be legally sustained. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:35:-** 36. In fairness to the submissions of the learned Additional Advocate General, we may note the strong reliance placed on the case of **Govt. of A.P** . v. **J. B. Educational Society** (supra). Learned counsel for the writ petitioners submitted that the said case is totally distinguishable in facts and in law, and rightly so, in our view. There, the conflict was between the Andhra Pradesh Education Act, 1982 and the AICTE Act, 1987. The Andhra Pradesh Act was amended by Act 27 of 1987 which, _inter alia_ , by Section 20 provided that no new Educational Institution shall be established except in accordance with the provisions of the Andhra Pradesh Education Act. This amendment had presidential assent. That is one of the important facts to be kept in mind as this amendment to the Andhra Pradesh Education Act came subsequent to the Central Act and the State Act had the presidential assent. Therefore, the Apex Court held that the AICTE Act would not override the provisions of the State Act. 37. Their Lordships further held in the above case that so far as the local needs are concerned, that had to be determined by the State. But still, it was held that having regard to the Regulations framed under the AICTE Act, the representative of the State had been included in the decision making process and W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:36:-** even if the State took any decision, in terms of Section 20 of the Andhra Pradesh Act, which was irrational, it was open to judicial review. The legal position that obtains in that case was totally different and will have no application to the facts of the present appeals. There is no such provision like Section 20 of the Andhra Pradesh Act available to the State Government in the matter of establishing new Polytechnics. The case does not help further the cause of the State in the present matter. 38. We may note here, it is not disputed that as per clause 4.18 of the 2016 Regulations, the State was required to respond with valid reasons, within twenty-one days. But, admittedly, the State did not respond at all. This time period of twenty-one days is mandatory in as much as there is a strict schedule that has to be adhered to. The State was informed of the application and specifically asked to respond and also give its views. It did not respond much less, in respect of any particular institution and even when this Court directed to pass specific orders, they did not find any fault with the institutions, in particular, but generally took a stand that there were sufficient institutions in the State. Here, we may also notice, as we have indicated in the beginning itself, that when the Central Legislation conferred power on a W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:37:-** Central body, i.e. the Central Council, this itself implies that the Central Council has to take India as a unit and consider the matter of grant of approval. It is not bound by the decision, much less policy decision of the State. It only seeks its views and not its approval. That is indicated by the case laws as noted above. 39. Here we may also note that by virtue of clause 1.6 of the Approval Process Handbook, as issued by the Central Council under clause 4.11 of the 2016 Regulations as quoted earlier, application for approval to AICTE (the Central Council) has only to be made after building infrastructure is complete. This would entail a cost of not less than Rs.12 Crores as per the paper of Ministry of Human Resource Development itself, as noted earlier. It would be axiomatic that, after incurring such a huge investment, the State can ever say 'no' to approval and let the investment go waste. We think, that, subject to regulation by AICTE, the institution knows that there is need for Polytechnic and thus, decides to invest. If there is no demand, why would they come at all. This would also show the limited role of the State in the matter of establishment of technical institutions. When the Central legislature and the Supreme Court has spoken thus, it is not for the State Government to be wiser. W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:38:-** 40. Thus, to sum up, we hold that in view of the decision of the Apex Court in the case of _**T.M.A. Pai Foundation**_ (supra), right to establish technical/educational institutions being “ _occupation_ ” is a fundamental right under Article 19(1)(g), that right can only be restricted in terms of Article 19(6) of the Constitution by law or authority of law. Consequently, there cannot be a policy decision to totally abrogate a fundamental right. Any policy of the State in such matters would also be repugnant to the authority of the Central Council under the Central Act and void, as now the policy vests with the Central Council. As a consequence, the policy decision of the State Government dated 22.08.2016 cannot be upheld. The writ petitions were thus, rightly allowed by the learned single Judge and the order of the State Government refusing to accord sanction/approval for establishment of new Polytechnics cannot thus be upheld. We accordingly, direct the State Government to immediately include the writ petitioners' Polytechnic Institutions in the Common Admission Process and if that has been concluded then permit the institutions to take admissions upon the merit list as already available with the Controller of Admission and include W.A. Nos. 1239, 1271, 1274, 1320, 1336, 1342 & 1343 of 2017 **-:39:-** the institutions in the examination process as well. Writ appeals by the State, thus stand dismissed. Sd/Navaniti Prasad Singh, Chief Justice Sd/Raja Vijayaraghavan V., Judge krj.17/8 //true copy// P.A To Judge