P. Kasilingam
& Ors Vs. P.S.G. College of Technology & Ors [1995] INSC 193 (24 March 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) Sawant, P.B. S.C..Agarwal, J.:
CITATION:
1995 AIR 1395 1995 SCC Supl. (2) 348 JT 1995 (3) 193 1995 SCALE (2)387
ACT:
HEAD NOTE:
1.
These appeals raise the common question whether a private engineering college
is governed by the provisions of the The Tamil Nadu Private Colleges
(Regulation) Act, 1976 (hereinafter refereed to as 'the Rules) made under the
Act.
Third
question has arisen in the context of P S.G.College of Technology and
Polytechnic, (hereinafter referred to as the 'College) in three writ petitions
(Writ petitions Nos. 2604, 3130 and 3205 on 1981)before the Madras High Court.
By its judgement dated December
23, 1982, the High
Court, while dismissing Writ petitions Nos. 2604 and 3130 of 1981 and allowing
Writ petitions No. 3205 of 1981. has held that the Act and the Rules do not
apply to the College. These appeals are directed against the said judgment of
the High Court.
2. On January 31, 1976 the President of India issued a
Proclamation under Article 356 of the Constitution of India, in relation to the
State of Tamil Nadu, declaring inter alia that the
powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament.
Parliament
under Article 357 (1)-(a) of the Constitution enacted the Tamil Nadu State
Legislature (Delegation of Powers) Act, 1976 whereby it conferred on the
President of India the powers of the Legislature of the State of Tamil Nadu to
make laws in relation to State of Tamil Nadu. In exercise of the said powers
the President of India enacted the Act to provide for the regulation of private
colleges in the State of Tamil
Nadu. Chapter 11
(Sections 3 to 10) make provisions for establishment, permission to
establishment and management of the private colleges. In Chapter III (Sections
11 to 14) provision is made for college committee and its constitution and
functions. Chapter IV (Sections 15 to 24) deals with the terms and conditions
of service of teachers and other persons employed in private colleges.
Chapter
V (Sections 25 to 32) relates to control of private colleges. Other provisions
are contained in Chapter VI (Accounts, Audit, Inspection and Furniture),
Chapter VII (General Provisions regarding Appeal and Revisional), Chapter VIII
(Penalties and procedure) and Chapter IX (Miscellaneous)
3. In
exercise of thee powers conferred by Section 53 of the Governor of Tamil Nadu
has maid the Rules. Rule 3 makes provision for the application for permission
to establish a college and prescribes the form 196 (Form 2) for such an
application. Rule 4 provides for grant of permission by State Government. Rule
7 makes provision for payment of grants to the college for the purpose of teaching,
construction of buildings, purchase of building site, play ground, furniture,
books and appliances. Rule 8 relates to Constitution of committee. Rule 11 to
15 deal with the conditions of service, etc. of teachers and other persons in
college. Rule 16 appertains to closure of private colleges.
4. On March 18, 1981 the Governing Body of the College
passed a resolution whereby it was resolved that the Act and the Rules do not
apply to the College. P. Kasilingam, as lecturer in the Electrical Electronics
and Communication Engineering in the College, filed a Writ Petition (Writ
petition No. 2604 of 1981) wherein he challenged the validity of the said
resolution of the Governing Body of the College. In the said Writ Petition the
said petitioner challenged the power of the College to advertise on All India
Basis and call applications for filling up vacancies in faculty positions in
various departments. The case of the said petitioner was that in view of Rule
11 (4) (i) and (ii) it is incumbent on 'the part of the College to consider the
claims of all qualified teachers in the College while making promotions and
making of direct recruitment to promotional posts could arise only when none of
the qualified teachers in the College is found qualified for promotion. The
said petitioner claimed that he is qualified for promotion from the post of
Lecturer to the post of Assistant Professor in the Department of Electrical,
and Electronics Engineering or Electronics and Communication Engineering and'
that without promoting him the causing of all India advertisement for filing up
the vacancies was illegal. Another Writ Petition [Writ Petition No. 3130 of
1981] was filed by number of teachers in the College wherein they challenged
the resolution of the Governing Body of the College dated March 18, 1981. As a
counter to these writ petitions the College filed a Writ Pe- tition [Writ
Petition No. 3205 of 1981] wherein it was asserted that the professional and
technical colleges, like the College, are not included within the purview of
the Act and the Rules and that the Central Government as well as the State
Government have both proceeded on the basis that the provisions of the Act and
the Rules do not cover such professional colleges.
5.At
this stage it would be relevant to mention that the All India Council for
Technical Education [AICTE] was estab- lished by the Government of India by a
Government resolution in 1945 as a national expert body to advise the Central
and the State Governments for ensuring the coordinated development of technical
education in accordance with approved standards. Till the enactment of the All
India Council for Technical Education Act, 1987, whereby the AICTE was
established was a statutory body, the AICTE was func- tioning as a
non-statutory body. Keeping in view the scheme of financial assistance of the
Government of India for the development of technical education and the
recommendations made by the Government of India in that regard, the Government
of Madras, by GO No. 1174 dated July 4, 1957, set up a State Board of Technical
Education and Training for the State of Madras [Now State of Tamil Nadu] to
advise the State Government on general programme as well as specific individual
schemes necessary for bringing about coordinated development of Technical Edu-
197 cation and Training in the State at all levels. By the said order the
Government of Madras also constituted the Directorate of Technical Education as
a separate unit with the Chief Engineer, Public Works Department (General and
Buildings) as the ex-officio Director of Technical Education. The Director of
Technical Education has been entrusted with the duties that were being
performed by the Director of Public Instruction in respect of all the Colleges
of Engineering and Technology in Madras State including Government Institutions
as well as Aided Private Institutions. In addition, he has been entrusted with
the following duties: -
"(a)
To supervise and direct the imple- mentation of all schemes included in the
Second Five Year Plan for expansion and improvement of the College of Engineering and Technology as well as Polytechnics;
(b) To
verify the fulfillment by all Insti- tutions of the Conditions attached to
grant-in-aid received by them from the Government of India and/or from the
State Government;
(c) To
initiate proposals for expansion and improvement of Technical Education and
Training at all levels for the consideration by the Board of Technical
Education and Training and to supervise and direct the implementation of all
recommendations by the Government; and
(d) To
maintain liasion between the Board of Technical Education and Training of the
State and the Southern Regional Committee of the All India Council of Technical
Education."
6. In
discharge of his duties the Director of Technical Education submits proposals
for starting new Private Engineering Colleges in Tamil Nadu to the State
Government for approval.
7. In
1967 the Director of Technical Education, under the Authority of the State
Government, issued the Grant-in-Aid Code of the Madras Technical Education
Department [hereinafter referred to as the Grant-in-Aid Code'] containing rules
for sanctioning Grant-in-aid to all recognised technical educational
institutional under private management. Article 3 of the Grant-in-Aid Code lays
down that the said rules shall apply to all private technical educational
institutions recognised or to be recognised hereafter by the Government or any
authority authorised by the Government in this behalf from time to time.
Article 5 specifies the grants may be (i) Technical grants, for teaching which
are recurring, and (ii) Building and equipment grants, for the construction,
enlargement, improvement and purchase of institutional buildings and for
purchase of furniture, apparatus, chemicals and appliances or books for
institutional libraries and of the plant, materials, equipment and tools
requires for laboratories and workshops, which are nonrecurring. In Chapter II
of the Grant-in-Aid Code the conditions of aid are laid down which include the
constitution of the Governing Council, its functions, meetings, endowments,
selection of staff and their conditions of service and admission of students,
etc.
Article
21 in the said Chapter provides that "no new course shall be started or
intake to the approved courses increased without the prior approval of
(1) the
All-India Council for Technical Education and its Southern Regional Committee
or
(2) the
Central Government in the Ministry of Education or
(3) the
Govern- 198 ment/Director as the case may be."
Chapter
III of the Grant- in-Aid Code deals with non-recurring grant for Buildings,
while Chapter IV deals with nonrecurring grants for books, furniture and
equipments and Chapter V deals with recurring grants. The Director of Technical
Education is the au- thority who has been entrusted with the enforcement of the
provisions of the Code.
8. We
may briefly refer to the relevant provisions of the Act and the Rules.
9. In
sub-section (3) of Section 1 of the Act it is laid down that the Act applies to
all private colleges. The expression "private college" is defined in
sub-section (8) of Section 2 as follows: - "Private college", means a
college maintained by an educational agency and approved by, or affiliated to,
a university but does not include a college- (a)established or administered or
maintained by the Central Government or the Government or any local authority
or any university; or (b)giving, providing or imparting religious instruction
alone, but not any other instructions. " Section 3 of the Act lays down: -
"New private college to obtain permission.- Save as otherwise expressly
provided in this Act, no person shall, without the permission of the Government
and except in accordance with the terms and conditions specified in such
permission, establish, on or after the date of commencement of this Act, any
private college:
Provided
that it shall also be necessary to obtain affiliation of such college to a
university." 10.Section 4 requires that the educational agency of every
private college proposed to be established on or after the date of the
commencement of this Act shall make an application to the Government for
permission to establish such college and it provides the requirements for such
application. Section 5 makes provision for grant of permission by the State
Government and under Section 6 such permission is deemed to have been granted
in respect of private college in existence immediately before commencement of
the Act on receipt of a statement under sub-section (3) of Section 4.
11.In
the Rules the expression "College" is defined in clause (b) of Rule 2
as under:- "College " means and includes Arts and Science College,
Teachers Training College, Physical Education College, Oriental College, School
of Institute of Social Work and Music College maintained by the educational
agency and approved by, or affiliated to the University.
"
12.The expression "Director" defined in clause (d) of Rule 2 to mean
the Director of Collegiate Education who has been assigned various functions in
relation to private colleges under the Rules. 'Mere is no reference to Director
of Technical Education in the Rules.
13.Before
the High Court the State of Tamil Nadu as
well as the Union of India, who had been impleaded as respondents in Writ
Petition No. 3205 of 1981 filed by the College, had taken the stand that the
College was not covered by the provisions of the Act and the Rules. The stand
of the 199 State in these appeals is, however, completely opposite inasmuch as
it has been contended on behalf of the State that private professional colleges
imparting technical education fall within the ambit of the Act and the Rules.
14.Before
we proceed further we may briefly refer to an earlier Writ Petition No. 2756 of
1976 filed by Kasilingam in the High Court. An enquiry was pending against Kasilingam
and during the pendency of the said enquiry Kasilingam is alleged to have given
a letter of resignation on March 19, 1976
with a request that he be relieved of his duties from the College after six
months from the date of that letter. This letter was accepted by the Principal
of the College who agreed to relieve Kasilingam with effect from September 19, 1976 but an order was issued on April 5, 1976 relieving Kasilingam with immediate
effect and enclosing a cheque for the salary payable to Kasilingam for the
remaining portion of the six months period. Kasilingam submitted a memorandum
to the Governor of Tamil Nadu complaining that the letter of resignation given
by him was not voluntary but was a result of coercion and threat. This
memorandum to the Governor was endorsed to the University of Madras for consideration. It was dismissed
by Syndicate of the Madras University on May
15, 1976 on the
ground, among others, that no appeal would lie to the Syndicate.
Thereupon
Kasilingam filed Writ Petition No. 2756 of 1976 praying for the issue of a writ
of certiorari to quash the order of the University. In the said Writ Petition
it was contended that having regard to the definition of "College"
occurring in the Rules the professional colleges are not included and,
therefore, the provisions of the Act and the Rules would not apply to the
College and the University was the competent authority to deal with the appeal
of Kasilingam. The said contention was rejected by a learned single Judge on
the view that the expanded definition of "private College" as laid
down in sub-section (8) of Section 2 cannot be abridged or curtailed by the
Rules and that the definition of "College" occurring in the Rules is
an inclusive definition of colleges. Thereafter, Kasilingam filed an appeal to
the Government which was forwarded to the Additional Director of Technical
Education for conducting an enquiry and submitting a report and after receiving
such report the Government allowed the appeal and directed reinstatement. The
College filed a Writ Petition No. 16 of 1979 against the said order of the
Government and the High Court by order dated October 1, 1979 allowed the said writ petition on merits and set aside the
order of the State, Government. Kasilingam filed an appeal [Civil Appeal No.
493 of
1980] against the said decision of the High Court which was allowed by this
Court and the order of the State Government to reinstate Kasilingam in service
was restored and the matter was remitted to the Government to decide as to
whether Kasilingam is entitled to all arrears of pay and allowances upon his
reinstatement in service.
15.Before
the High Court it was urged that the decision in Writ Petition No. 2756 of 1976
holding that professional colleges are included in the definition of
"private college" contained in sub-section (8) of Section 2 of the
Act operates as res-judicata. The said contention was rejected by the High
Court on the view that the judgment in Writ Petition No. 2756 of 1976 was one
of dismissal of the writ pe- 200 tition and the College could not be said to be
a person aggrieved by the judgment and that neither die Union of India nor the
Government of Tamil Nadu were parties to the Writ Petition. According to the
High Court the conduct of the College in not questioning the jurisdiction of
the Government in entertaining the appeal on the ground that the Act and the
Rules are not applicable and fighting the case on merits at the subsequent
stages could not in any way be considered as a conduct which would preclude the
College from agitating the question of the validity or applicability of the Act
and the Rules.
16.On
an examination of the provisions of the Act and the Rules as well as the
Grant-in-Aid Code the High Court has held that professional private colleges
are outside the ambit of the Act and the Rules. Referring to the definition of
"private college" as contained in Section 2(8) of the Act and the
definitions of "College" as contained in Rule 2(b) and
"Director" in Rule 2(b) the High Court has observed "It is true
that the Rules could not restrict the application of the Act. But we are not
reading the Rules as restricting the operation of the Act, but as an instance
of how the authorities who are to enforce the provisions of the Act have understood
and applied the provisions, keeping in view the intentions of the Legislature.
All along the Central Government and the State Government were pro- ceeding on
the basis that the Act is not are professional institutions." "The
understanding of the State Government and its officers, who are the competent
persons to enforce the Act and the Rules, on the applicability of the Act and
the Rules to professional and technical applicable to engineering ring colleges
which institutions, though the Act had been in force for a few years. only,
could, in our opinion, justifiably invoked in interpreting the provisions of
the Act and the Rules on the principle of 'communis error facit jus'."
17.The High Court has also held that the Central Government had issued directions
and instructions relating to technical educational institutions which are
referable to matters covered by Entry 66 of List I in the Seventh Schedule to
the Constitution in respect of which Parliament alone has the power to make
laws and that the Union Government could exercise its executive powers in
respect of those matters even in the absence of law made by the Parliament and
that power of the State Legislature to make laws in respect of matters falling
under Entry 25 of List III of the Seventh Schedule being subject to the power
conferred on Parliament under Entry 66 of List I, the State Legislature had no
power to enact a law governing professional and technical educational
institutions and, therefore, the Act and the Rules could not apply to professional
and technical edu- cational institutions.
18.The
said view of the High Court has been assailed before us by the appellants in
these appeals, viz., the members of the teaching staff of the College as well
as by the State of Tamil
Nadu. Shri P.P. Rao, the
learned senior counsel appearing on behalf of the State of Tamil Nadu, has
urged that private colleges are covered by the Act and the Rules and the wide
amplitude of the Act cannot be, curtailed by the provisions contained in the
Rules. Shri Rao has also urged that the matters dealt with in the Act do not
relate to co-ordination and determination of standards in in- stitutions for
higher education for research 201 and scientific and technical institutions
and, therefore, the Act cannot be said to be law in respect of matters failing
under Entry 66 of List I and that it relates to mat- ters failing under Entry
25 of List III.
19.We
will first deal with the contention urged by Shri Rao based on the provisions
of the Act and the Rules. It is nodoubt true that in view of clause (3) of
Section 1 the Act applies to all private colleges. The expression
"college" is, however, not defined in the Act. The expression
"'private college" is defined in Clause (8) of Section 2 which can,
in the absence of any indication of a contrary intention, cover all colleges
including professional and technical colleges. An indication about such an
intention is, however, given in Rules wherein the expression
"college" has been defined in Rule 2(b) to mean and include Arts and
Science College, Teachers Training College, Physical Education College,
Oriental College, School of Institute of Social Work and Music College. While enumerating the various types of colleges in Rule
2(b) the Rule making au- thority has deliberately reframed from including
professional and technical colleges in the said definition.
It has
been urged that in Rule 2(b) the expression "means and includes" has
been used which indicates that the definition is inclusive in nature and also
covers categories which are not expressly mentioned therein. We are unable to
agree. A particular expression is often defined by the Legislature by using the
word 'means' or the word 'in- cludes'. Sometimes the words 'means and includes'
are used.
The
use of the word' ' indicate that "definition is a hard- and-fast
definition. and no other meaning can be assigned to the expression that is put
down in definition." [See Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding
Officer, Labour Court,(1990 (3) SCC 682, at p. 717]. The
word 'includes' when used, enlarges the meaning of the expression defined so as
to comprehend not only such things as they signify according to their natural
import but also those things which the clause declares that they shall include.
The words 'means and includes', on the other hand, indicate "an exhaustive
explanation of the meaning which, for the purposes of the Act, must invariably
be attached to these words or expressions."' [See : Dilworth v
Commissioner of Stamps, (1899 AC 99 at pp. 105-106 (Lord Watson);1 Mahalakshmi
Oil Mills v. State of Andhra Pradesh, (1989) 1 SCC 164, at p. 169]. The use of
words 'means and includes' in Rule 2(b) would, therefore, suggest that the
definition of "college" is intended to be exhaustive and not
extensive and would cover only the educational institutions failing in the
categories specified in Rule 2(b) and other educational institutions arc not
comprehended. In so far as engineering colleges am con there exclusion may be
for the reason that the opening and running of the private engineering colleges
are controlled through the Board of Technical Education and Training and the
Director of Technical Education in accordance with the directions issued by the
AICTE from time to time. As noticed earlier the Grant-in-Aid Code contains
provisions which, in many respects, cover the same field as is covered by the
Act and the Rules. The Director of Technical Education has been entrusted with
the functions of proper implementation of those provisions. There is nothing to
show that the said arrangement was not working satisfactorily so as to be 202
replaced by the system sought to be introduced by the Act and the Rules. Rule
2(d), on the other hand, gives an indication that there was no intention to
disturb the existing arrangement regarding private engineering colleges because
in that Rule the expression 'Director" is defined top mean the Director of
Collegiate Education The Director of Technical Education is not included in the
said definition indicating that the institutions which are under the control of
Directorate of College Education only are to be covered by the Act and the
Rules and technical educational institutions in the State of Tamil Nadu which
am controlled by the Director of Technical Education arc not so covered.
20.
The Rules have been made in exercise of the power conferred by Section 53 of
the Act. Under Section 54(2) of the Act every rule made under the Act is
required to be placed on the table of both Houses of the Legislature as soon as
possible after it is made. It is accepted principle of statutory construction
that "rules made under a statute arc a legitimate aid to construction of
the statute as Contemporanea Expositio " [See : Craies on Statute Law, 7th
Edition pp. 157-158; Tata Engineering and Locomotive Company Ltd. v. Gram Panchayat
Pimpri Waghere. 1977 (1) SCR 306, at p. 317]. Rule 2(b) and Rule 2(d) defining
the expression "College" and "Director" can, therefore, be
taken into consideration as contemporanea exposition for construing the
expression "private college" in Section 2(8) of the Act. Moreover,
the Act and the Rules form part of a composite scheme. Many of the provisions
of the Act can be put into operation only after the relevant provisions or form
is prescribed in the Rules. In the absence of the Rules the Act cannot be
enforced. If it is held that Rules do not apply to technical educational
institutions the pro- visions of the Act cannot be enforced in respect of such
institutions. There is, therefore, no escape from the conclusion that
professional and technical educational in- stitutions are excluded from the
ambit of the Act and the High Court has rightly taken the said view. Since we
agree with the view of the High Court that professional and technical educational
institutions are not covered by the Act and the Rules, we do not consider it
necessary to to into the question whether the provisions of the Act fall within
the ambit of Entry 25 of List III and do not relate to Entry 66 of List I.
21. Shri
Sitaramaiah, the learned senior counsel appearing for the appellant in Civil
Appeal No. 10002 of 1983, has urged that ,Rule 11 which relates to conditions
of service, etc., of teachers and other persons in college is referable to
Section 17 of the Act and there is nothing in Section 17 and Rule 11 to
indicate that they are confined in their application to colleges other than
technical educational institutions and that there is no reason why the
conditions of service of teachers in technical education institutions should
not be governed by Rule 11. We find no substance in this contention. Once it is
found that on a proper construction the Act and the Rules do no apply to
professional and technical educational institutions then none of the provisions
of the Rules, including Rule 11, can be said to apply to professional and
technical educational institutions and it is not Possible to say that some of
the provisions of the Rules we applicable while others do not apply to such
institutions.
22.For
the reasons aforementioned we 203 do not find any merit in these appeals and
the same are accordingly dismissed. No order as to costs.
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