State
of A.P. Vs. K. Purushotham Reddy & Ors
[2003] Insc 156 (10
March 2003)
Cji,
S.B. Sinha & Ar. Lakshmanan.
with
Civil Appeal No. 3986 of 2001 S.B. SINHA, J :
Whether
the State of Andhra Pradesh had the legislative competence to enact Andhra
Pradesh State Council of Higher Education Act, 1988 (Act 16 of 1988)
(hereinafter called as "the 1988 Act") is the core question involved
in these appeals which arise out of a judgment and order passed by the Andhra
Pradesh High Court in Writ Petition No. 17222 of 1988.
The
fact leading to filing of the Writ Petition by the respondent herein
questioning the vires of the 1988 Act arose in the following circumstances:
The
Central Government evolved a National Education Policy in the year 1986
pursuant whereto and in furtherance whereof, recommendations were made for
creating a State Level Planning for coordination of the Higher Education
through Councils of Higher Education. Such Councils were proposed to be set up
as statutory bodies having regard to the fact that there did not exist any
effective machinery for planning and coordination of higher education at the
State level vis--vis implementation of the programmes made by the University
Grants Commission (UGC). With a view to give effect to the said policy, UGC constituted
a committee to go into the said matter and make recommendations regarding
setting up of the said Councils of higher education and programme of action to
be taken in that behalf. The pressing need for constituting effective machinery
for promotion and coordination of higher education at the State level and
coordination of State level programmes with those of the UGC was felt and
pursuant thereto and in furtherance thereof, UGC formulated guidelines for
setting up of such Councils as recommended by the Committee.
In the
year 1986 the State of Andhra
Pradesh passed an Act
known as the Andhra Pradesh Commissionerate of Higher Education Act, 1986
(hereinafter called as 'the Commissionerate Act'). The Commissionerate Act was
enacted purported to be pursuant to or in furtherance of the recommendations of
the Vice-Chancellors' Committee on higher education in the State of Andhra Pradesh. The constitutionality of the said
Act inter alia was questioned on the ground of lack of legislative competence
having regard to the parliamentary Act known as University Grants Commission
Act enacted in terms of Entry 66, List I of the VII Schedule of the
Constitution of India. The said writ petitions were filed by the respondent
herein and four others as also the Osmania University Teachers' Association.
The said writ petitions were dismissed by a Full Bench of Andhra Pradesh High
Court by a judgment dated 24.03.1987. However, on an appeal thereagainst this
Court in Osmania University Teachers' held that the State Legislature had no
legislative competence therefor.
As a
necessary fallout of the said decision, guidelines were sought to be reviewed wherefor
request was made by the Government of India to the Commission.
In the
light of the judgment, the Department of Education, Government of India
requested the Commission to review the guidelines.
Accordingly,
the guidelines were reviewed with the help of the law panel of the Commission.
The relevant extracts of the revised guidelines as approved by the Commission
in January, 1988 are as under:
"2.0
Setting up of the Council In order to achieve the objectives set out above, the
Central Government may advise State Governments for enacting legislation for
setting up of State Councils of Higher Education in the States. In an Indian
state where the number of universities are too few, an advisory body may be set
up to fulfil the above objectives.
8.0
Powers and Functions of the Council The Council shall function for coordination
and determination of standards in institutions for higher education or research
and scientific and technical institution in accordance with the guidelines
issued by the UGC from time to time.
8.1
Planning and Coordination
(i) To
prepare consolidated programmes in the sphere of higher education in the State
in accordance with the guidelines that may be issued by the UGC from time to
time, and to assist in their implementation.
(ii)
To forward the development programmes of universities and colleges in the State
to UGC along with its comments and recommendations.
(iii)
To assist UGC in respect of determination and maintenance of standards and
suggest remedial action wherever necessary, in accordance with the guidelines.
(iv)
To evolve perspective plans for development of higher education in the State.
(v) To
monitor the progress of implementation of such development programmes.
11.0
Annual Report The Council shall prepare an Annual Report giving an account of
its activities during the previous year and copies thereof shall be forwarded
to the State Government and the Government shall cause the same to be laid
before the Legislative Assembly. A copy of the Annual Report should be sent to
University Grants Commission." Pursuant to or in furtherance of the said
recommendations revised guidelines as approved by the Commission were issued in
January, 1988 and relying on or acting on the basis thereof the Government of
Andhra Pradesh decided to fill up the gaps by constituting State Council of
Higher Education as recommended in the National Education Policy of the
Government of India as also in terms of the recommendations made by the
Committee constituted by the UGC. Consequently, the Government of Andhra
Pradesh enacted Andhra Pradesh State Council of Higher Education Act, 1988.
On the
same premise which led to the declaration of 1986 Act as ultra vires the
Constitution, a Writ Petition came to be filed. It, by reason by the impugned
judgment, was allowed by a Division Bench of the Andhra Pradesh High Court.
The
correctness of the judgment of this Court in Osmania University Teachers'
Association (supra) was doubted by a two-Judge Bench inter alia on the ground
that the Commissionerate Act as also the 1988 Act dealt not only with higher
education but also with intermediate education and having regard to the fact
that Entry 66, List I of the VII Schedule of the Constitution of India does not
deal with intermediate education, the entire Act could not have been struck
down. It was further opined that many of the provisions of the 1986 Act as also
the impugned Act would be covered by Entry 25, List III of the VII Schedule of
the Constitution of India wherefor the State Legislature has the requisite
legislative competence.
The
primal question which, therefore, arises for consideration is as to whether the
State of Andhra Pradesh has the requisite legislative
competence to enact the 1988 Act.
It is
not in dispute that after the decision of this Court in Osmania University
Teachers' Association (supra) the Committee set up by the Commission went into
the matter in great details and opined that the State Act should be in aid of
the UGC Act and not in derogation thereof.
Sufficient
safeguards were provided as regards functioning of the Council so as to make
the proposed enactment within the purview of Entry 25 of List III.
The
task before this Court is, therefore, to see as to whether the defects pointed
out by this Court in its earlier judgment had sufficiently been remedied so as
to bring the same within the parameters of the Constitutional Scheme.
Before
embarking upon a fuller discussion on the matter we may notice that the
provisions of the 1988 Act are almost verbatim/ similar as contained in the
recommendations made by the Committee set up by the UGC.
This
Court in Osmania University Teachers' Association (supra) compared the
provisions of University Grants Commission Act as also the Commissionerate Act
in details and came to the following conclusion:
"23.
We have extracted only such of the provisions similar to those contained in the
UGC Act. That is not all. The Commissionerate Act yet contains sweeping
provisions encroaching on the autonomy of the Universities. Under Section 11(1)(c)
it is for the Commissionerate to decide on the need for, and location of new
colleges and courses of study including Engineering Colleges. Section 11(1)(f)
provides power to the Commissionerate to establish and develop resources
centers for curriculum materials and continuing education of teachers. Section
11(1)(g) confers power on the Commissionerate to co-ordinate the academic activities
of various institutions of higher education in the State. It is also the duty
of the Commissionerate to undertake examination reforms and assume
accreditation functions [Section 11(1)(h) and (i)]. Section 11(1)(j) states
that it is the duty of the Commissionerate to organise entrance test for
University admission.
Section
11(1)(k) states that it shall administer and grant scholarship and organise
work study programmes. Section 11(1)(o) provides power to transfer teachers
from one aided private college to another such college, subject to the rules
made by the government. There is yet a devastating provision on the autonomy of
Universities. Section 11(2) states that every University or college including
the private college shall obtain the prior approval of the Commissionerate in
regard to :
(i) certain
of new posts;
(ii) financial
management; and
(iii) starting
of new higher educational institutions.
This
'Super Power' has been preserved to the Commissionerate notwithstanding
anything contained in any law relating to Universities in the State, the Board
of Intermediate Education Act, 1971 and the Andhra Pradesh Education Act,
1982." (Emphasis supplied) This Court found that the Commissionerate Act
has practically taken over the academic programmes and activities of the
universities as a result whereof the universities have been rendered irrelevant
if not non-entities. It was opined that both the UGC Act and the Commissionerate
Act deal with the same subject matter, namely, coordination and determination
of excellence in the standards of teaching and examination in the universities
conveying the same meaning.
This
Court however observed:-
"28.
Before parting with the case we may say a word more. The impugned Act was the
result of a report from a High Power Committee constituted by the State
Government. The Committee went into the affairs of the higher education in the
State.
The
Committee examined among other things, the curricula and courses of studies.
The Committee found as a fact that there is no proper co-ordination and
academic planning among the various bodies.
It
recommended to the State Government the need to pass a proper legislation to
streamline the higher education. The State Government accepted the
recommendations and passed the Act in question.
The
Act now disappears for want of legislative competence. What about the need to
enact that Act? It will not vanish into thin air. The defects and deficiencies
pointed out by the High Power Committee in regard to higher education may
continue to remain to the detriment of the interest of the State and the
Nation. Such defects in the higher education may not be an isolated future only
in the State of Andhra
Pradesh. It may be a
common feature in some other States as well.
29.
That apart, we often hear and read in newspapers with disgust about the
question papers leakage and mass copying in the University examinations. It has
stripped the university degrees of all its credibility. He indeed must be blind
who does not see what is all happening in some of the Universities.
30.
The Constitution of India vests Parliament with exclusive
authority in regard to co-ordination and determination of standards in
institutions for higher education. The Parliament has enacted the UGC Act for
that purpose. The University Grants Commission has, therefore, a greater role
to play in shaping the academic life of the country. It shall not falter or
fail in its duty to maintain a high standard in the Universities. Democracy
depends for its very life on a high standard of general, vocational and
professional education.
Dissemination
of learning with search for new knowledge with discipline all round must be
maintained at all costs. It is hoped that University Grants Commission will
duly discharge its responsibility to the Nation and play an increasing role to
bring about the needed transformation in the academic life of the
Universities." This exercise on the part of the Central Government and the
UGC must have been undertaken in furtherance of the said observations.
The
High Court in its impugned judgment compared the provisions of the Commissionerate
Act and the impugned Act and came to the conclusion that even if the Act had
been enacted in accordance with the guidelines issued by the UGC and pursuant
to the recommendations made by the High Level Committee; as the State
Government lacks the requisite legislative competence, it must necessarily be
held to be ultra vires the Constitution.
Entry
66 of List I and Entry 25 of List III of VII Schedule of the Constitution of
India read as follows:
"66.
Coordination and determination of standards, in institutions, for higher
education or research and scientific and technical institutions.
25.
Education, including technical education, medical education and universities,
subject to the provisions of entries 63, 64, 65 and 66 List I;
vocational
and technical training of labour." The conflict in legislative competence
of the Parliament and the State Legislatures having regard to Article 246 of
the Constitution of India must be viewed in the light of the decisions of this
Court which in no uncertain terms state that each Entry has to be interpreted
in a broad manner. Both the parliamentary legislation as also the State
legislation must be considered in such a manner so as to uphold both of them
and only in a case where it is found that both cannot co-exist, the State Act
may be declared ultra vires.
Clause
I of Article 246 of the Constitution of India does not provide for the
competence of the Parliament or the State Legislatures as is ordinarily
understood but merely provide for the respective legislative fields.
Furthermore,
the Courts should proceed to construe a statute with a view to Committee and
others (2002) 9 SCC 232 : AIR 2002 SC 852, Asstt. Director Ors. 2003 (2) SCALE 288]
Entry 66 of List I provides for coordination and determination of standards
inter alia for higher education. Entry 25 of List III deals with broader
subject, namely, education. On a conjoint reading of both the entries there
cannot be any doubt whatsoever that although the State has a wide legislative
field to cover, the same is subject to entry 63, 64, 65 and 66 of List I. Once,
thus, it is found that any State Legislation does not entrench upon the
legislative field set apart by Entry 66, List I of the VII Schedule of the
Constitution of India, the State Act cannot be invalidated.
Section
11 and Section 16 of the 1988 Act read thus:
"Sec.
11. Powers and functions of the Council:
(1) It
shall be the general duty of the Council to co-ordinate and determine standards
in institutions of Higher Education or Research and Scientific and Technical
institutions in accordance with the guidelines issued by the University Grants
Commission from time to time.
(2)
The functions of the Council shall include:
I. Planning
and Co-ordination:
(i) to
prepare consolidated programmes in the sphere of Higher Education in the State
in accordance with the guidelines that may be issued by the University Grants
Commission from time to time, and to assist in their implementation, keeping in
view the overall priorities and perspectives to Higher Education in the State.
(ii) to
assist the University Grants Commission in respect of determination and
maintenance of standards and suggest remedial action of Higher Education in the
State;
(iii) to
evolve perspective plans for development of Higher Education in the State;
(iv) to
forward the Developmental Programmes of Universities and Colleges in the State
to the University Grants Commission along with its comments and recommendations;
(v) to
monitor the progress of implementation of such developmental programmes;
(vi)
To promote co-operation and co- ordination of educational institutions among
themselves and explore the scope for interaction with industry and other
related establishments.
(vii)
To formulate the principles as per the guidelines of the Government and to
decide upon, approve and sanction new educational institutions by according
permission keeping in view the various norms and requirements to be fulfilled;
(viii)
To suggest ways and means of meeting additional resources for higher education
in the State.
II.
Academic functions:- xxx xxx xxx III. Advisory functions:- xxx xxx xxx Sec. 16:
Annual Report: The Council shall prepare once in every year, in such form and at
such time as may be prescribed an annual report giving a true and full account
of its activities during the previous year, and copies thereof shall be
forwarded to the Government and the Government shall cause the same to be laid
before the Legislative Assembly of the State. A copy of the report shall also
be sent to University Grants Commission." A bare comparison of the
provisions of the 1988 Act with the provisions of the Commissionerate Act would
clearly demonstrate that the powers and functions of the Council stand
curtailed in so far as they are not only to function in accordance with the
guidelines issued by the University Grants Commission but its duty is to assist
the Commission in respect of determination and maintenance of standards and
suggest remedial action of Higher Education in the State. In exercise of the
power conferred upon it under the 1988 Act, the Council can now only forward
the programmes of universities and colleges in the State to the University
Grants Commission along with its comments and recommendations which necessarily
would be subject to the latter's acceptance. Even an Annual Report prepared by
the Council although is required to be forwarded to the Government which in
turn is enjoined with a duty to place before the Legislative Assembly of the
State, but a further requirement has been provided that a copy thereof shall
also be sent to the University Grants Commission; Evidently the Commission on
receipt of a copy of the report may give its own suggestions for their implementation
by the Council. It is, therefore, not correct to contend as has been done by
the High Court in its impugned judgment that the Council also derives its power
to coordinate and determine the standards of institutions of higher education
or research and technical institutions including planning and coordination to
prepare consolidated programmes in the sphere of higher education in the State
keeping in view the overall priorities and perspectives of higher education.
Although the High Court has noticed that the principal duties and functions of
the Council is to assist the UGC in respect of determination and maintenance of
standards and suggest remedial action; to evolve the developmental programmes
of Universities and Colleges in the State to the UGC along with its comments
and recommendations to monitor the progress of implementation of such
developmental programmes; to promote cooperation and coordination of
educational institutions among themselves and to explore the scope for
interaction with industry and other related establishments which not only had
been done in accordance with the guidelines issued by the UGC from time to
time. Despite the same it was held:
"On
a comparative study of the provisions of the Act 26 of 1986 and Act 16 of 1988,
the functions of the Commissionerate and the functions of the State Council
well nigh are the same except to the extent of stating that the Council should
act in accordance with the guidelines issued by the UGC from time to
time." Once it is held that the duties and functions of the Councils are comparmentalised
and they have to act in accordance with the guidelines issued by the UGC from
time to time, it is preposterous to suggest that the Council acts on its own
and /or at the instance of the Government in the field of cooperation and
determination of standards in institutions of higher education as an
independent body. Keeping in view the fact that the Commission itself on the
request of the Central Government constituted a committee and laid down the
parameters within which the Council can function and subjected themselves to
the restriction of working within the guidelines issued by the UGC, we fail to
understand as to how it can be contended that both the Commissionerate Act as
also the Council Act provide for same powers and functions. The modifications
made in the 1988 Act vis--vis the Commissionerate Act cannot be said to be so
slight as has been opined by the High Court so as to arrive at a conclusion
that the 1988 Act still suffers from the same vices. Having regard to the
provisions of the 1988 Act and particularly Section 11 thereof we have no doubt
in our mind that the purpose of the said Act, and the powers and functions
thereof vis-- vis the Commissionerate Act are absolutely distinct and
different. In no way the 1988 Act can be said to have an upper hand over the
UGC Act.
It is
not a case where the State Council of Higher Education were to act
independently irrespective of the standard of education set forth by the
University Grants Commission. Its powers and functions, as indicated
hereinbefore, are absolutely different from that of 1986 Act.
J.
categorically held that the question as regard the impact of the Entry 66, List
I and Entry 25, List III must be determined by reading the Central Act as well
as the State Act conjointly. A state law providing for such standards having
regard to Entry 66 of List I would be struck down as unconstitutional only in
the event the same is found so heavy or devastating so as to wipe out or
appreciably abridge the central field and not otherwise. Once the powers and
functions of the Council is found to be subject to the guidelines issued by the
UGC and the perspective plan prepared by it would be subject to its approval,
the question of standard of education set up by the State Act cannot be said to
be leading to wipe out or appreciably abridge the central field.
The
1988 Act expressly states that the same would be subject to the Central Act. It
emphasizes that the provisions thereof are for the purpose of filling up of the
gaps and to control effectively a large number of universities within which,
having regard to their sheer number, the UGC itself would not be in a position
to have effectively control over them. If the UGC has an overall control over
the State Council, the Central field is not entrenched upon. In a situation of
this nature the doctrine of pith and substance must also be held to be
applicable. We must also take notice of the fact that the State of Tamil Nadu
as also the State of West Bengal in terms of the National Education Policy,
1986 as also the recommendations of the Committee framed by the University
Grants Commission enacted similar Acts.
The
provisions of the impugned Act would clearly show that the State Act is in aid
of the Parliamentary Act and it does not in any manner whatsoever entrench
thereupon.
A
similar question came up for consideration in Naga People's wherein the law has
been laid down in the following terms:
"65.
... The contention of Shri Goswami that the provisions of Sections 4 and 5 of
the State Act are inconsistent with the provisions of Arms Act enacted by
Parliament also cannot be accepted because the said provisions only provide for
effective enforcement of the provisions of the Arms Act in the disturbed areas
and it cannot be said that they, in any way, encroach upon the field covered by
the Arms Act. The challenge to the validity of Sections 4 and 5 of the State
Act is, therefore, negatived." Others (1999) 7 SCC 120, this Court held
thus "35. The legislative competence of Parliament and the legislatures of
the States to make laws under Article 246 is regulated by the VIIth Schedule to
the Constitution. In the VIIth Schedule as originally in force, Entry 11 of
List II gave to the State an exclusive power to legislate on "education
including universities, subject to the provisions of Entries 63, 64, 65 and 66
of List I and Entry 25 of List III".
Entry
11 of List II was deleted and Entry 25 of List III was amended with effect from
3-1-1976 as a result of the Constitution 42nd
Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows
:
"25.
Education, including technical education, medical education and universities,
subject to the provisions of Entries 63, 64, 65 and 66 of List I;
vocational
and technical training of labour." Entry 25 is subject, inter alia, to
Entry 66 of List I.
Entry
66 of List I is as follows :
"66.
Coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions." Both the
Union as well as the States have the power to legislate on education including
medical education, subject, inter alia, to Entry 66 of List I which deals with
laying down standards in institutions for higher education or research and
scientific and technical institutions as also coordination of such standards. A
State has, therefore, the right to control education including medical
education so long as the field is not occupied by any Union legislation.
Secondly, the State cannot, while controlling education in the State, impinge
on standards in institutions for higher education. Because this is exclusively
within the purview of the Union Government.
Therefore,
while prescribing the criteria for admission to the institutions for higher
education including higher medical education, the State cannot adversely affect
the standards laid down by the Union of India under Entry 66 of List I.
Secondly,
while considering the cases on the subject it is also necessary to remember
that from 1977, education, including, inter alia, medical and university
education, is now in the Concurrent List so that the Union can legislate on
admission criteria also. If it does so, the State will not be able to legislate
in this field, except as provided in Article 254." In re Hindu Women's
Rights to Property Act {(28) AIR 1941 FC 72} and another (2003 AIR SCW 653), a
bench of which one of us (Hon'ble CJI) was a member, it has been held:
"28......Judicial
system has an important role to play in our body politic and has a solemn
obligation to fulfil. In such circumstances it is imperative upon the Courts
while examining the scope of legislative action to be conscious to start with
the presumption regarding the constitutional validity of the legislation. The
burden of proof is upon the shoulders of the incumbent who challenges it. It is
true that it is the duty of the constitutional Courts under our Constitution to
declare a law enacted by the Parliament or the State Legislature as
unconstitutional when the Parliament or State Legislature had assumed to enact
a law which is void, either from want of constitutional power to enact it or
because the constitutional forms or conditions have not been observed or where
the law infringes the fundamental rights enshrined and guaranteed in Part III
of the Constitution." Submission of Mr. D. Ramakrishna Reddy, the learned
counsel appearing on behalf of the respondent to the effect that the 1988 Act
is a colourable piece of legislation is stated to be rejected. As noticed
hereinbefore the State Act seeks to plug the loopholes pointed out by this
Court in Osmania University Teachers' Association (supra). It seeks to bring
the State Act in conformity with the constitutional parameters.
Educational
& Research Institute and Others (1995) 4 SCC 104 is equally misplaced.
Therein it was found that the Tamil Nadu Private Colleges (Regulation) Act and
Rules framed thereunder as also the Madras University Act entrenches upon
provisions of All Indian Council for Technical Education Act, 1987 and in that
situation it was held:
"30.
A comparison of the Central Act and the University Act will show that as far as
the institutions imparting technical education are concerned, there is a
conflict between and overlapping of the functions of the council and the
University. Under Section 10 of the Central Act, it is the Council which is
entrusted with the power, particularly, to allocate and disburse grants, to
evolve suitable performance appraisal systems incorporating norms and
mechanisms for maintaining accountability of the technical institutions, laying
down norms and standards for courses, curricula, staff pattern, staff
qualifications, assessment and examinations, fixing norms and guidelines for
charging tuition fee and other fees, granting approval for starting new
technical institutions or introducing new courses or programmes, to lay down
norms or granting autonomy to technical institutions, providing guidelines for
admission of students, inspecting or causing to inspect colleges, for
withholding or discontinuing of grants in respect of courses and programmes,
declaring institutions at various levels and types fit to receive grants,
advising the Commission constituted under the Act for declaring technical
educational institutions as deemed universities, setting up of National Board
of Accreditation to periodically conduct evaluation on the basis of guidelines
and standards specified and to make recommendations to it or to the Council or
the Commission or other bodies under the Act regarding recognition or de-recognition
of the institution or the programme conducted by it.
Thus,
so far as these matters are concerned, in the case of the institutes imparting
technical education, it is not the University Act and the University but it is
the Central Act and the Council created under it which will have the
jurisdiction. To that extent, after the coming into operation of the Central
Act, the provisions of the University Act will be deemed to have become
unenforceable in case of technical colleges like the engineering colleges. As
has been pointed out earlier, the Central Act has been enacted by Parliament
under Entry 66 of list I to coordinate and determine the standards of technical
institutions as well as under Entry 25 of List III. The provisions of the
University Act regarding affiliation of technical colleges like the engineering
colleges and the conditions for grant and continuation of such affiliation by
the University shall, however, remain operative but the conductions that are
prescribed by the University for grant and continuance of affiliation will have
to be in conformity with the norms and guidelines prescribed by the Council in
respect of matters entrusted to it under Section 10 of the Central Act."
The said decision ex facie is not applicable in the instant case. The law was
laid down therein in the following terms:
"41.
What emerges from the above discussion is as follows :
(i)
The expression 'coordination' used in Entry 66 of the Union List of the Seventh
Schedule to the Constitution does not merely mean evaluation. It means harmonisation
with a view to forge a uniform pattern for a concerted action according to a
certain design, scheme or plan of development.
It,
therefore, includes action not only for removal of disparities in standards but
also for preventing the occurrence of such disparities. It would, therefore,
also include power to do all things which are necessary to prevent what would
make 'coordination' either impossible or difficult. This power is absolute and
unconditional and in the absence of any valid compelling reasons, it must be
given its full effect according to its plain and express intention.
(ii)
To the extent that the State legislation is in conflict with the Central
legislation though the former is purported to have been made under Entry 25 of
the Concurrent List but in effect encroaches upon legislation including
subordinate legislation made by the Centre under Entry 25 of the Concurrent
List or to give effect to Entry 66 of the Union List, it would be void and
inoperative.
(iii)
If there is a conflict between the two legislations, unless the State
legislation is saved by the provisions of the main part of clause (2) of
Article 254, the State legislation being repugnant to the Central legislation,
the same would be inoperative.
(iv)
Whether the State law encroaches upon Entry 66 of the Union List or is
repugnant to the law made by the Centre under Entry 25 of the Concurrent List,
will have to be determined by the examination of the two laws and will depend
upon the facts of each case.
(v)
When there are more applicants than the available situations/ seats, the State
authority is not prevented from laying down high standards or qualifications
than those laid down by the Centre or the Central Authority to short-list the
applicants.
When
the State authority does so, it does not encroach upon Entry 6 of the Union
List or make a law which is repugnant to the Central law.
(vi)
However, when the situations/seats are available and the State authorities deny
an applicant the same on the ground that the applicant is not qualified
according to its standards or qualifications, as the case may be, although the
applicant satisfies the standards or qualifications laid down by the Central
law, they act unconstitutionally. So also when the State authorities de-recognise
or disaffiliate an institution for not satisfying the standards or requirements
laid down by them, although it satisfied the norms and requirements laid down
by the Central authority, the State authorities act illegally." Thus,
there cannot be any doubt whatsoever that only to the extent of conflict, the
State law has to be struck down and not otherwise.
Before
parting with this case, it is relevant to notice that the respondent herein is
merely a teacher of a university. It is true that he was one of the petitioners
in the earlier writ petition also questioning the validity of the Commissionerate
Act. Both the Central Government as well as the University Grants Commission in
no uncertain terms stated before us that the Act is intra vires, presumably,
because they do not find any conflict between the University Grants Commission
Act and the 1988 Act.
At one
point of time a question arose as to whether having regard to the observations
made by the Division Bench, the matter should be referred to a Constitution
Bench. We do not think so to do inasmuch as the question which falls for
consideration is not as to whether the decision of this Court in Osmania
University is correct or not but really is as to whether the impugned Act in its
present form is in any way in conflict with the Central Act having regard to
the changes effected therein pursuant to the recommendations of the Committee
constituted by the UGC at the instance of the Central Government.
We are
further of the view that the High Court committed a manifest error in striking
down the entire Act without bestowing its consideration to the fact that the
State Act deals with not only higher education but also intermediate education
which in no manner deals with the subject matter of Entry 66 of List I of VII
Schedule of the Constitution of India. We are of the view that the impugned
enactment does not encroach upon the legislation enacted by the Parliament and
the same is a valid piece of legislation.
For
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. These appeals are allowed. In the facts and
circumstances of this case, however, there shall be no order as to costs.
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