WP(C).No. 2554 of 2013 (T) and connected matters

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935** ## **WP(C).No. 2554 of 2013 (T) ---------------------------** ## **PETITIONER(S):** **--------------------------** **MUTHOOT M.GEORGE INSTITUTE OF TECHNOLOGY, 3RD FLOOR, MUTHOOT CHAMBERS, BANERJI ROAD, COCHIN - 18, (REP. BY ITS CHIEF EXECUTIVE OFFICER, V.J.MATHEW).** **BY SRI.KURIAN GEORGE KANNANTHANAM,SENIOR ADVOCATE ADVS.SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE SRI.JIJI THOMAS** **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT ANENX, TRIVANDRUM - 695 001.** **2. THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM - 695 001.** **3. THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, REPRESENTED BY ITS SECRETARY, 7TH FLOOR, CHANDERLOK BUILDINGS, JANPATH, NEW DELHI - 110 001.** **4. THE REGIONAL OFFICER,** - **THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, WESTERN REGION, P.K.BLOCK, PALACE ROAD, BANGALORE - 560 009.** **R1 & R2 BY ADVOCATE GENERAL SRI.K.P.DANDAPANI R3 & R4 BY ADV. SRI.S.KRISHNAMURTHY,SC, AICTE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2013, ALONG WITH WPC.NO. 3282 OF 2013 AND CONNECTED CASES, THE COURT ON 09-04-2013 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.2554/2013** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE CERTIFICATE DATED 10/2/2012 ISSUED FROM THE 2ND RESPONDENT.** - **P2 COPY OF THE NEWS REPORT DATED 29/2/2012 APPEARED IN THE TIMES OF INDIA** - **P3 COPY OF THE NOTIFICATION INVITING APPLICATIONS FOR APPROVAL PROCESS 2013-14 ISSUED BY THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION** - **P4 COPY OF THE PAGE NO.110 OF THE APPROVAL PROCESS HAND BOOK 2013-14** - **P5 COPY OF THE ORDER DATED 19/12/2012 OF THE HIGHER EDUCATION (J) DEPARTMENT** - **P6 COPY OF THE ORDER DATED 31/1/2012 OF -DO-** ## **RESPONDENT'S EXHIBITS AND ANNEXURES:** **ANNEX 1 COPY OF THE ORDER DATED 28/06/2012 IN IA.NO.358/2011 IN WA.NO.2014/2010** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.Nos.2554, 2968, 3282, 5287 and 8090 of 2013 ---------------------------------------Dated this the 9[th] day of April 2013 ## **J U D G M E N T** The writ petitions are filed for quashing Government Order G.O.(Rt) No.2702/12/H.Edn. dated 19/12/2012 issued by the Higher Education (J) Department to the extent of imposing a moratorium in granting 'No Objection Certificate' (NOC) to Self Financing Engineering Colleges in the State for the academic year 2013-2014. In W.P(C) No.8090/2013, the intimation received by the petitioner based on the government order is impugned. The relevant portion of the order which is impugned reads as under: _“In view of the allotment details furnished by Commissioner for Entrance Examinations in respect of Merit Seats in the Self-Financing Engineering Colleges in the State and the observations of the Hon'ble Court in the matter and also the need to ensure that the future of the students is not jeopardized, it is decided that_ W.P.C.No.2554 & conn.cases 2 _there shall be a moratorium on granting NOC to new self-financing Engineering Colleges in the State for the year 2013-2014.”_ 2. The petitioners in the above writ petitions are various organisations who had submitted applications to the All India Council for Technical Education (for short AICTE), seeking approval to start Self-financing Engineering College in the State of Kerala, during the academic year 2013-2014, in terms of the regulations framed under the All India Council for Technical Education Act, 1987 (hereinafter referred as the AICTE Act). 3. Since common questions arise for consideration, these writ petitions are decided by a common judgment. The documents referred to are with reference to W.P.(C) No.2254 of 2013, unless otherwise stated. 4. According to the petitioners State Government has no legislative competence to impose any conditions to fix a moratorium for granting approval to start Engineering Colleges as the said power is absolutely vested with AICTE, 3 W.P.C.No.2554 & conn.cases a statutory authority constituted under the AICTE Act. The AICTE Act is referrable to Entry 66 of List I of the Constitution of India. Hence the State Government does not have the legislative competence to enact a law or frame a policy to restrict the grant of approval. 5. Counter affidavit is filed by the State Government supporting their stand taken in the impugned Government Order. According to them, these guidelines came to be issued in the wake of an order passed by a Division Bench of this Court in I.A.No.358 of 2011 in W.A 2014 of 2010 produced as Annexure I in which this Court having taken note the report of the Expert Committee, pointing out the inadequacies in infrastructure and instructional facilities and also its reflection in the results of the students, issued certain directions to the State Government, the Universities and AICTE. It is therefore contended that the guidelines were issued after conducting a detailed study by expert committees in the matter relating to formulating criteria for W.P.C.No.2554 & conn.cases 4 sanctioning new unaided Self Financing Engineering and Arts and Science Colleges, new courses in the existing colleges and increasing the intake in the existing course. It is in the light of the directions issued by this Court that the Government decided to take a policy decision to avoid mushrooming of technical institutions. 6. AICTE has filed a statement inter alia stating that since the State Government is not proposing to grant NOC it may stand in the way of final approval, subject to any other deficiencies noted by the expert team with reference to the particular colleges. According to them, the NOC from the State Government is a mandatory requirement for granting approval and for conducting the course. Since the State Government had taken a policy decision that there shall be a moratorium in granting NOC to the new self financing colleges in the State for the academic year 20132014, the technical institutions will have to apply afresh for the next academic year. W.P.C.No.2554 & conn.cases 5 7. Heard the learned senior counsel Sri.Kurian George Kannanthanam and Sri.V.B.Harinarayanan, learned counsel appearing for the petitioners, learned Advocate General appearing on behalf of the State and Sri.S.Krishna Moorthy, learned Standing Counsel for AICTE. 8. The question that requires to be considered in these writ petitions is the vires of the impugned order fixing a moratorium of one year for starting a self financing Engineering Colleges in the State. 9. The learned Counsel appearing for the petitioners relied upon the judgment of the Supreme Court in **Jaya Gokul Educational Trust v. Commissioner and Secretary to Government** _[2000(2) KLT 267 (SC)]_ and judgment of the Division Bench of this Court in **St.Joseph Hospital and Trust v. Kerala University of Health Sciences** _[2012(4) KLT 444]_ for the proposition that AICTE Act was referable to Entry 66, List I of the Constitution of India relating to _“Co-ordination and determination of_ W.P.C.No.2554 & conn.cases 6 _standards in institutions for higher education or research and scientific and technical institutions”_ and even if the State legislature could enact a law referable to Entry 25 of List III in the Concurrent List which reads, “ _Education, including technical education, medical institution and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I, vocational and technical training of labour”,_ such a law would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. On this basis it is argued that the State Government cannot impose a moratorium the result of which is to usurp the power of AICTE in the matter relating to grant of approval and that even a policy decision cannot exist which is outside the purview of legislative competence of the State Government. It is argued that the only direction issued by this Court in Annexure I order is to co-relate the results from various institutions and make recommendations to the Government, AICTE and 7 W.P.C.No.2554 & conn.cases Universities concerned for withdrawal or modification of conditions for retention or recognition and affiliation whether college wise or subject wise, whereas the guidelines issued on 31/01/2012 was seen diluted by the Government by issuing Ext.P7. 10. Learned counsel appearing for the petitioner in W.P.C.No.2968 of 2013 points out that the object of the policy is not clear from the impugned Government Order. Annexure I order does not contain any direction or observation to make a blanket ban on Engineering Colleges. Reference is made to paragraphs 2 and 3 of the Annexure I order in order to indicate that the Division Bench made reference to two institutions which did not have sufficient results and observed that the said colleges should be discontinued after closely monitoring the coaching of the students and the examination of the results. However, no action has been taken by the Government in that regard and therefore the object to be W.P.C.No.2554 & conn.cases 8 achieved is not clear from the Government Order. 11. On the other hand the learned Advocate General submitted that the impugned order is the policy decision of the Government. The Government is worried about a situation where there is mushrooming of colleges and as per the data available, about 18,000 seats in the Engineering Colleges were lying vacant during the previous academic year. The learned Advocate General placed reliance on various observations made by this Court in Annexure I order to indicate that it is in the light of the recommendations made by the expert committee and the observations made by this Court, to avoid mushrooming of such colleges it is felt that a moratorium is required at least for a period of one year so that a control can be imposed in the matter relating to admission of students to various colleges and in a phased manner with the assistance of AICTE and University, proper steps could be taken to maintain high standards of education. The learned W.P.C.No.2554 & conn.cases 9 Advocate General relied upon the following judgments to contend that the Court shall not interfere with the policy decision of the Government by way of judicial review, unless it is shown that the policy can be faulted on the ground of mala fide, arbitrariness, unfairness or irrationality which would render the policy unconstitutional. i) **Ugar Sugar Works Ltd. V. Delhi Administration and Others** _[(2001) 3 SCC 635]_ ii) **State of Rajasthan and others v. Lata Arun** _[(2002) 6 SCC 252]_ iii) **State of Kerala and Another v. Naveena Prabhu and Others** _[(2009) 3 SCC 649]_ iv) **Shimnit Utsch India Private Limited And Another v. West Bengal Transport Infrastructure Development Corporation Limited and Others** [( _2010) 6 SCC 303]_ and _v)_ **Ms Aruna Roy and Others. v. Union of India** _**and Others** [(2002) 7 SCC 368]_ 12. Further reference is made by the learned Advocate General to the decision in **Govt. of A.P and Another v. J.B.Educational Society and Another** _[2005_ W.P.C.No.2554 & conn.cases 10 _(3) SCC 212]_ in order to contend that the educational needs in a State are to be ascertained and determined by the State and therefore the State can frame a policy to impose a moratorium of one year taking into consideration the need of the State. It is contended that the legislative competence of State of Andhra Pradesh to enact the Andhra Pradesh Education Act, which took into consideration the local needs of the State for starting Engineering College, had been upheld by the Supreme Court. In so far as the moratorium now issued by the impugned order is after taking into consideration the large number of Engineering Colleges in the State and to avoid mushrooming of such Engineering Colleges, there is no illegality in the State Government evolving the same as a policy. The learned Advocate General also contended that the judgments in **Jaya Gokul** and **St.Joseph** (Supra) have no application to the factual circumstances involved in the present case, as in those cases AICTE had already granted W.P.C.No.2554 & conn.cases 11 approval, whereas in the present cases, AICTE had not granted any approval though they have conducted various inspections. Therefore it is obligatory on the part of AICTE to consider the guidelines issued by the Government as per the impugned order before granting approval and when this is a policy decision of the Government AICTE is bound to consider the same before issuing the order. 13. The learned Advocate General also relied upon the following paragraphs in Annexure I order in order to highlight the reason for framing such a policy: _“6. On going through the performance of students as reflected in the examination results in various Engineering Colleges affiliated to the M.G.University, we notice that the performance of several Colleges is so bad that their continued recognition by the AICTE and the affiliation by the University will be against all the norms. Mount Zion College of Engineering has achieved consistently low percentage of pass rate of students for all the years from 2009 to 2011 which is below 30%. Further, going by the_ W.P.C.No.2554 & conn.cases 12 _results from 2009 to 2010, we notice that percentage of pass is only going down on year to year basis proving deterioration. The position is same for the Carmel College of Engineering, Ranni, which has shown decline in the percentage of pass in the years 2009 to 2010 and still worse for the next year 2011, where for all the six subjects, the maximum percentage of pass is ranging from 4 to 39. The position is same so far as Musliyar College of Engineering, Pathanamthitta is concerned, where the percentage of pass is only getting reduced from year to year and in the year 2011 in the 5 subjects the percentage of pass ranges from 11 to 31. We notice that Matha College of Technology, North Paravur has also shown consistently poor results in the examination for the students in all the 4 subjects, and for the year 2011 the percentage of pass ranges from 6 to 33 in the 4 subjects. It is noticed that in several other Colleges some subjects are so weak whereas in some subjects students have shown good performance._ W.P.C.No.2554 & conn.cases 13 _7. So far as the Kerala University is concerned, we notice that of the 11 Colleges which started in 2010 only three have achieved 40% pass in the 4[th] semester. The performance of students in all the remaining 8 Colleges is so poor which should engage serious concern of the University and the AICTE. Several other Colleges, which are running for several years are also very badly performing. It is worthwhile to note that Basilous Mathews II College of Engineering, Sasthamcotta and Shahul Hameed Memorial College of Engineering, Kadakkal, Kollam and Muslim Association College of Engineering, Venjarammoodu, Thiruvananthapuram are consistently bad in the performance of students, where the average pass percentage of students is 30 or below that. We notice that the Younus College of Engineering & Technology, Vadakkevila, Kollam and Travancore Engineering College, Oyoor, Kollam and Mary Matha College of Engineering and Technology, Paliyode, Thiruvananthapuram and P.A.Aziz College of Engineering, Thiruvananthapuram, College of Engineering and Management, Punnapra, Alappuzha are doing very badly._ W.P.C.No.2554 & conn.cases 14 _8. We have already noticed from the report submitted by the Expert Team constituted by the Government pursuant to Court Orders that several Colleges do not have infrastructural and instructional facilities to impart coaching to the students. We are of the view that those Colleges which do not have at least average 40% pass for the students in the last 3 years should be ordered to be closed down. However, we leave this to be considered by the State, University concerned and also by the AICTE, whose combined responsibility it is to ensure that Colleges impart quality education to students. The students in closed Colleges should be sent to other Colleges to save their career. Even though new Colleges may take time to improve the facilities and to increase the strength of the teaching faculty, from the consistent failure of the students for the last several years we find that the Managements have no interest in improving the Institutions. Unless the reckless recognition and the affiliation being granted by the AICTE and the Universities are stopped by the Government, more sub-standard Engineering Colleges will be started in the State_ W.P.C.No.2554 & conn.cases 15 _which is already super saturated with Engineering Colleges. Since already an Expert Committee is constituted the results now produced before us from all the Universities for the last 3 years should be placed before the said Committee for correlation of the results with inadequacies and to make recommendation of closure and for accommodation of students in other Colleges which could be done through withdrawal or modification of recognition and affiliation by the AICTE and the University concerned. We have stated about the deplorable conditions of the Colleges based on the data gathered from the Expert Team about the inadequacies in infrastructure and instructional facilities and also it's reflection in the results of the students disclosed from the examination results furnished by the Universities, only for the Authorities and the Government to consider closure of the worst Colleges showing no sign of improvement and to put in the watch list several of the badly performing Colleges so that if they do not improve in the course of an year, such Colleges also should be closed down. We have also noticed_ W.P.C.No.2554 & conn.cases 16 _that at least in some Colleges while the performance of students in some branches are good, the students in certain other branches are doing very badly, which is a reflection of the poor faculty position of the Colleges in those subjects. Therefore, subjectwise withdrawal of affiliation also should be considered. For the reasons and observations stated above, we direct the Government to refer the examination results of the last 3 years of all the Engineering Colleges under various Universities to the very same Expert Team constituted pursuant to our order for them to correlate the results with their finding on infrastructure and instructional facilities and the Committee should keeping in mind the interest of the student community make recommendations to the Government and to the AICTE and also to the University concerned for withdrawal or modification or conditions for retention of recognition and affiliation whether Collegewise and subjectwise. This should be done within a period of two months from the date of receipt of a copy of this order. Wherever Colleges are closed or subjects discontinued, the University in_ W.P.C.No.2554 & conn.cases 17 _consultation with AICTE and the Director of Technical Education should look into the faculty position and the capacity of other Colleges and should arrange with such Colleges the continuation of course study of the students of closed Colleges and Courses, which should be done in consultation with the students and their parents also._ _9. We have already issued interim prohibitory orders against the Government issuing NOC for starting new Colleges. In the first place we do not think there is scope for any more Engineering College in the State which already provides admission for about 50,000 students every year. Going by the examination results of the students, we are of the view that several getting admission with minimum marks (50%) in the subjects probably do not have the equipment and capacity to catch up with engineering studies and take the degrees. Therefore, there may be a case of increase of minimum percentage of marks for the subjects for admission in Engineering. In any case, if the Government proposes to issue / consider NOC for any new Engineering College, it_ W.P.C.No.2554 & conn.cases 18 _should permit it only after being convinced that buildings, laboratory and teaching staff are provided in advance, and the Government should also insist that the Management should produce bonds from qualified teaching staff to serve the College in the event, NOC, recognition and affiliation are granted by the Government, AICTE and University.”_ 14. The learned Counsel for AICTE having referred to the statement filed on their behalf submitted that though NOC was insisted from the State Government on earlier occasions, as per the present regulations framed by AICTE as available in the Approval Process Hand Book of 20132014 Clause 3.3 and 3.4 reads as under: _“_ _**3.3** Views of State Government and Affiliating University._ _**3.4** The State Government/U.T and the affiliating University/Board will forward to the concerned Regional Office of the Council, their views on the applications received, with valid reasons or otherwise within a period of 15 days from the date of_ W.P.C.No.2554 & conn.cases 19 ## _receipt of the applications.”_ Therefore it is contended that the views of the State Government definitely has to be taken into consideration by the AICTE before giving approval to a College. The learned Counsel also relied upon the judgment of the Supreme Court in **All India Council for Technical Education v. Surinder Kumar Dhawan and Others** _[(2009) 11 SCC 726]_ to contend the limited scope of interference by this Court in matters relating to education. Another judgment relied upon is **Adarsh Siksha Maha Vidyalaya and Others v. Subhash Rahangdale and Others** _[(2012) 2 SCC 425]_ to contend for the position that sympathetic considerations cannot be a factor to be looked into in the matter relating to the grant of approval to technical institutions. 15. The short question that arises for consideration is whether the impugned order requires to be quashed as unconstitutional and inconsistent with AICTE Act. W.P.C.No.2554 & conn.cases 20 16. According to the Government the reason for issuing the impugned order is the expert study conducted by an expert team appointed by the Government during the pendency of Writ Appeal No.2014 of 2010. Specific reference has been made to the study conducted by the expert team and the guidelines issued as per G.O.(Rt) No.218/12/H.Edn. dated 31/01/2012. On 22/10/2012 the Government submitted the final inspection report to the Court and based on the said report, Annexure I order came to be passed. The impugned order indicates that it is based on the allotment details, observation of the High Court and also the need to ensure that the future of the students should not be jeopardized, a decision has been taken for not granting granting NOC to new Self-Financing Engineering Colleges during 2013-2014. Therefore I have no hesitation to hold that the impugned order reflects the concern of the Court as observed in Annexure I. 17. Here is an instance where the State Government W.P.C.No.2554 & conn.cases 21 has taken a stand that they will not issue NOC for the year 2013-2014 to new colleges as a policy matter of the Government. There is no provision in the AICTE Act or in the regulations, that requires the State Government to issue NOC, in the matter relating to grant of approval. Whereas in the hand book published by AICTE exercising the power under the regulations which also has force of law, AICTE is entitled to have the views of the State Government. If the impugned order at Ext.P5 is a view expressed by the State Government and informed to AICTE there cannot be any challenge to the said notification since admittedly AICTE is the authority competent to grant the approval. 18. Let me now consider the validity of the impugned Government Order, based on the judgments cited by the parties. 19. In **Jaya Gokul** case (supra) AICTE had granted conditional approval to the appellant Trust to start an W.P.C.No.2554 & conn.cases 22 Engineering and Technical College. The appellant approached the State Government for permission to proceed further on the basis that the appellant requires permission from the State Government. The University had forwarded to the Government, a list of Colleges and courses for affiliation during the said academic year which included the appellant's college as well. Though the appellant sent a reminder to the Government, the Government refused permission by informing the appellant their inability to comply with the said request. This action of the Government came to be challenged on the ground that Government permission was not required. The learned Single Judge quashed the Government order refusing permission and directed the University to consider the application of the appellant for permanent affiliation, which was reversed in appeal before the Division Bench which was carried in appeal before the Supreme Court. In that factual background, Supreme Court relying upon **State of** W.P.C.No.2554 & conn.cases 23 **Tamil Nadu & Anr. v. Adhiyaman Eductional & Research Institute & Ors.** _[1995(4) SCC 104]_ found that under Section 10(1)(k) of the AICTE Act, the power to grant approval for establishing technical institution is on AICTE and if the State makes any law stating that approval of State Government is required for establishing technical institutions, such a law would be contrary to AICTE Act and void to that extent. Reference was also to Statute 9 (7) of the Mahatma Gandhi University Act especially which requires University to obtain the views of the State Government. Supreme Court held that requesting for the views could not be characterized as requiring the approval of the State Government. Hence it was held that the University could not have sought for approval of the State Government. Further on the question framing policy by the the State Government, the Supreme Court held as under: “27. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In _Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education_ W.P.C.No.2554 & conn.cases 24 _& Charitable Trust v. State of Tamil Nadu & Ors._ (JT 1996 (2) 692 = 1996 (3) SCC 15), which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the "essentiality certificate cannot be withheld by the State Government on any **policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone"** . Therefore, the State could not have any **"policy"** outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State.” xxxx 20. In **St.Joseph's** case (Supra) the factual situation was that the petitioner had obtained consent for affiliation from the University and AICTE had granted approval for starting M.Pharm course. On getting approval, affiliation was sought from the University. The University requested the petitioner to furnish certain details which inter alia included permission from Government of Kerala after W.P.C.No.2554 & conn.cases 25 executing an agreement. This request of the University was under challenge. In another writ petition, there was a direction from the University to obtain “NOC” from the Government which was also impugned. The contention urged on behalf of the University was that as per a circular issued by the Government, permission or NOC from State Government is required before issuing affiliation. The Division Bench referred to **Jaya Gokul's case** (Supra) and various other judgments on the point and found that the impugned circular which requires the applicant to obtain NOC from the State Government is to secure incorporation of two constitutionally impermissible conditions namely seat sharing and regulation of fee and therefore the circular has no force of law. It was therefore found that once the approval has been granted by AICTE the State Government cannot insist upon the petitioner to produce “NOC” from the State Government for the grant of affiliation and under the 2010 Regulations made by AICTE, W.P.C.No.2554 & conn.cases 26 there is no such requirement in respect of M.Pharm course, that application for AICTE approval must be accompanied by NOC of the State Government. 21. The Supreme Court in the **J.B. Educational Society** case (Supra) had upheld the validity of a Andhra Pradesh Educational Act, a State Act on the ground of lack of repugnancy between the State Act and AICTE Act. The legislation had received the assent of the President. The facts involved in the said case would disclose that a challenge was made with reference to Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982, which was incorporated by way of an amendment in 1987, as void and inoperative as the State Government has no legislative competence to pass the legislation as the State provision was in the field already occupied by the enactment made by the Parliament, namely the AICTE Act. Section 20(3)(a) (i) provides that any Educational Agency applying for permission shall satisfy the authority concerned that there W.P.C.No.2554 & conn.cases 27 is need for providing educational facilities to the people in the locality. Therefore, any educational agency intending to establish an institution imparting education is bound to establish or satisfy the authority concerned which is the State Government authority that there is need for providing educational facilities to the people in the locality. Section 20(1) of the said Act states that the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner, through local news papers calling for applications from the educational agencies. A reference to the following paragraphs in the said judgment will be useful, which reads as under: “xxxx The provisions of the AICTE Act are intended to improve 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, harmonise and secure proper relationship to any project of national importance. Such a coordinate action in higher education with proper standard is of paramount importance to national progress. Section 20 of the A.P. 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 W.P.C.No.2554 & conn.cases 28 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 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 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 Entries 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 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 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 A.P. Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions. W.P.C.No.2554 & conn.cases 29 15. This Court in _M. Karunanidhi_ v. _Union of India_ , SCC at p. 444, para 24, held thus: - “ _24_ . It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: - _1_ . That there is a clear and direct inconsistency between the Central Act and the State Act. - _2_ . That such an inconsistency is absolutely irreconcilable. _3_ . That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.” This Court also referred to the earlier decisions including _Deep Chand_ v. _State of U.P._ (SCR at p. 43) wherein various tests to ascertain the question of repugnancy between the two statutes were indicated and, _inter alia_ , it was held that repugnancy between two statutes may be ascertained by considering, whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature. Reference was made to _Megh Raj_ v. _Allah Rakhia_ wherein it was observed that if the paramount legislation does not purport to be exhaustive or unqualified, there is no inconsistency and it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. This Court also referred to _T.S. Baliah_ v. _T.S. Rengachari_ wherein it was, _inter alia_ , observed that before coming to the conclusion that there is a repeal by implication, the court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together. 16. In _Kanaka Gruha Nirmana Sahakara Sangha_ v. _Narayanamma_ this Court after quoting Article 254 held: (SCC pp. 233-34, paras 9-10) “ _9_ . The language of the aforesaid article is crystal W.P.C.No.2554 & conn.cases 30 clear and it _inter alia_ provides [subject to the provisions of clause (2)] that— ( _a_ ) if any provision of law made by the legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, then the law made by Parliament whether passed before or after the law made by the legislature of such State shall prevail and the law made by the legislature of the State shall, _to the extent of repugnancy_ , be void; or ( _b_ ) if any provision of a law made by the legislature of a State is repugnant to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the existing law shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void. _10_ . There cannot be any doubt that the article gives supremacy to the law made by Parliament, which Parliament is competent to enact. But, for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail.” ## (emphasis in original) ## xxxxxxxx 19. In _Islamic Academy of Education_ v. _State of Karnataka_ , SCC at p. 770, para 134, it was held as under: “Local needs would vary from State to State. Even development of a backward area may be a local need. Absence of good educational institutions in a particular area may also be a local need. The State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the State W.P.C.No.2554 & conn.cases 31 as a unit. For good reasons the State may not like to establish professional colleges or institutions only in their capitals.” 20. In _Jaya Gokul Educational Trust_ v. _Commr. & Secy. to Govt. Higher Education Deptt_ . and in _Govt. of A.P._ v. _Medwin Educational Society_ similar views were expressed by this Court. 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 decision-making 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.” 22. The principle laid down by the Supreme Court in **J.B. Educational Society** case (Supra) is that the local needs has to be looked into by the State Government and if such a law is enacted there is no inconsistency with the provisions of AICTE Act. Apparently the issue considered in **Jaya Gokul's** case and **St.Joseph's** case were on different set of facts. There cannot be any doubt in the proposition that in view of section 10(k) of the AICTE Act, the AICTE alone has the power to grant approval. Whether AICTE can W.P.C.No.2554 & conn.cases 32 take into consideration the local needs of the State is what is considered in **J.B. Educational Society** case. Section 10 (a) of AICTE Act reads as under: **10. Functions of the Council** .—It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may— ( _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; This provision according to the Supreme Court in **J.B. Educational Society** case does not pertain to the educational needs of any particular area in a State. It is only a general supervisory survey to be conducted by the AICTE. But 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 W.P.C.No.2554 & conn.cases 33 institution should be established. In **St.Joseph's** case the Division Bench found that the impugned circular which requires the applicant to obtain NOC from the State Government is to secure incorporation of two constitutionally impermissible conditions namely seat sharing and regulation of fee and therefore the circular has no force of law. 23. But in the case on hand by intervention of court as per Annexure I order, and other particulars available with the State Government a policy is framed in the form of a Government Order, not to grant NOC to start self financing engineering colleges in the academic year of 2013-2014. One main reason projected is the mushrooming of Engineering Colleges in the State and depletion of standards. Is such a policy inconsistent with any provisions of the AICTE Act or regulations? If section 10(a) of AICTE does not give power to AICTE to consider and approve the local needs of the State, definitely the State Government W.P.C.No.2554 & conn.cases 34 will have legislative competence to enact a law referable to Entry 25 of the Concurrent List subject to the provisions of Entries 63, 64, 65 and 66 of List I. If the State has the power to legislate, necessarily it can frame a policy, which is not inconsistent with the provisions of AICTE Act. In **J.B. Educational Society** case the Supreme Court did not uphold validity of the State law only for the reason that it had received the assent of the President, but held that, whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say. It was further held that Section 20 of the A.P. Act and Section 10 of the Central Act operate in different fields and there is no repugnancy between the two provisions. 24. Is mushrooming of colleges in a State a matter to be looked into by the State or is there any provision in the AICTE Act or the regulations to take care of such eventualities will be the question to be answered. The W.P.C.No.2554 & conn.cases 35 impugned order came to be passed in special circumstances as narrated in Annexure I order and the subsequent circumstances narrated in the counter affidavit especially that 18000 seats were lying vacant during the year 2012, of which 7262 were merit seats to which government was to make allotments. The government order impugned is the policy of the State to have control over the number of institutions to be established in the State. 25. In **St.Joseph's** the division bench while considering the judgment **J.B. Educational Society** observed the deviation of the supreme Court in the view expressed in Jaya Gokul's case, but formed an opinion on the basis of the judgment in the three Judge's decision in **State of Maharashtra v. Sant Dyaneshwar Shikshan Shastra Mahavidyalaya and others (2006(9) SCC 1)** that Jaya Gokuls's case was approved. Paragraph's 2, 5, 63 and 64 of **Sant Dnyaneshwar Shikshan Shastra** W.P.C.No.2554 & conn.cases 36 ## **Mahavidyalaya,** reads as under: **“2.** The present appeals are directed against the judgment and order passed by the High Court of Judicature at Bombay, on 28-9-2005 in Writ Petitions Nos. 6172 of 2005, 4769 of 2005 and cognate matters. Writ Petition No. 4769 of 2005 was filed by Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya for an appropriate writ, direction or order, quashing and setting aside the order dated 28-12-2004 passed by the State of Maharashtra by which the petitioner was informed that the State of Maharashtra had taken a policy decision not to grant “no-objection certificate” (“NOC” for short) to any institution for starting new BEd college for the academic year 2005-2006. It was also decided to communicate the said policy decision to Maharashtra University stating that if necessity will arise in the next year, applications for the institutions would be considered at that time. A decision was also taken to bring it to the notice of the National Council for Teacher Education, Bhopal (“NCTE” for short) that in the State of Maharashtra, there was no need for new BEd W.P.C.No.2554 & conn.cases 37 trained manpower and hence NCTE should not directly consider any application for grant of permission to start BEd college. In spite of the aforesaid policy decision by the State of Maharashtra, NCTE granted permission to the petitioner Institute. The State hence challenged the said action by filing Writ Petition No. 6172 of 2005 contending that the decision of NCTE ignoring the policy decision of the State Government dated 28-12-2004 was not in consonance with law and was liable to be set aside.” **“5.** The High Court held that in the light of the relevant provisions of the Act as interpreted by this Court in various decisions, the appropriate authority to take decision regarding opening of new colleges was NCTE and neither the State Government nor the University can act contrary to the decision of NCTE. According to the High Court, under the Act, the only authority which could take a decision regarding opening of new BEd college or increase in intake capacity was NCTE and such decision cannot be ignored either by the State authorities or by the University. So W.P.C.No.2554 & conn.cases 38 far as the function of the State Government was concerned, the High Court observed that it was in the nature of supply of necessary data and materials so as to enable NCTE to undertake the process of coming to an appropriate decision but the State had no power to decide that it had taken a policy decision not to grant permission to open new BEd college for a particular period. Such decision was not in accordance with the provisions of the Act nor in consonance with law laid down by this Court. Regarding role of the University, the High Court held that it was incumbent on the University to take an appropriate decision and consequential action on the basis of the decision of NCTE and the provisions of the University Act required the University to implement such decision. It was, therefore, not open to the University to take any action overlooking the decision of NCTE and relying on a decision of the State Government. In the light of the above findings the High Court allowed the petition filed by the institutions and dismissed the writ petition of the State Government.” W.P.C.No.2554 & conn.cases 39 **“63.** In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is _fully_ and _completely_ occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament _alone_ could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”. **“64.** Even otherwise, in our opinion, the High Court was fully justified in negativing the W.P.C.No.2554 & conn.cases 40 argument of the State Government that permission could be refused by the State Government on “policy consideration”. As already observed earlier, policy consideration was negatived by this Court in _Thirumuruga Kirupananda Trust_ as also in _Jaya Gokul Educational Trust_ .” Under these circumstances, it is all the more clear that despite the factual situations as narrated by the learned Advocate General, regarding the deplorable condition of large number of technical institutions, in so far as the grant of approval is completely within the domain of the legislative power of AICTE, it is for AICTE with the assistance of State Governments to consider the requirement of Technical Institutions in the State. In fact AICTE was also a party to the proceedings resulting in Annexure I order and they are also bound to consider the concern and views expressed by this court, before granting approval for starting new colleges exercising their statutory power. The law laid down by the Supreme court **J.B.** W.P.C.No.2554 & conn.cases 41 **Educational Society** cannot have application to the facts of the present case as the impugned order is in the form of a prohibition to start colleges during the present academic year, and is not based on local needs as visualised under Andhra Pradesh Education Act. That apart, **Jaya Gokul's** case, still remains the authority in the matter of policy consideration by the Government. 26. Hence I am of the view that the State Government cannot impose any moratorium to start any self financing engineering colleges during the academic year, 2013-2014 and to that extent the impugned order is liable to be quashed, and accordingly I do so. 27. However, I make it clear that AICTE while granting approval to self financing engineering colleges in the State should consider the views expressed by the State Government in this regard before the grant of approval. Writ petitions are allowed as above. **(sd/-)** **(A.M.SHAFFIQUE, JUDGE)** jsr