Govt.
of A.P. & Anr Vs. J.B. Educational Society & Anr, Etc [2005] Insc 126 (23 February 2005)
K.G.
Balakrishnan & B.N. Srikrishna
With
CIVIL APPEAL No. 3026 OF 1999 K.G. BALAKRISHNAN, J.
These
appeals are filed by the State of Andhra Pradesh challenging the decision of the Division Bench of the High
Court of Andhra Pradesh in Writ Appeal Nos. 1571 of 1997; 84 of 1998; and 85 of
1998. By the impugned Judgment, the Division Bench partly confirmed the
judgment of the learned Single Judge and held that Section 20(3)(a)(i) of the
Andhra Pradesh Education Act, 1982 (in short "the A.P. Act") is void
and inoperative and the State Government had no legislative competence to pass
such a legislation as the State provision was in the field already occupied by
the enactment made by the Parliament, namely, All India Council of Technical
Education Act, 1987 (hereinafter being referred to "AICTE Act"). It
was held that in view of Section 10 of the AICTE Act with regard to
establishment of technical institutions in general, the said special enactment
legislated by the Parliament would prevail over the A.P. Act to the extent of
its repugnancy.
The
Writ Petitioners are the private educational institutions.
They
wanted to establish engineering colleges in the State of Andhra Pradesh. They applied to the authorities
under the AICTE Act and approval was granted to them for the academic year
1997-98 by the AICTE Council. These Writ Petitioners made applications under
Section 20 of the Act for permission to establish the institution. The
permission was rejected on the ground that the Writ Petitioners had been
seeking permission to establish colleges in the places where already there were
number of colleges and that the State Government was not satisfied about the
educational needs of that locality. In that view of the matter, permission was
declined. Aggrieved by the same, the Writ Petitions were filed.
A.P.
Act is a consolidating and amending Act made by the State Legislature with the
object of reforming, organising and developing educational system in the State
and to provide for matters connected therewith or incidental thereto. This
legislation had received the assent of the President. Under Section 19 of the
A.P. Act, educational institutions are classified into three categories,
namely, State institutions, local Authority institutions and Private
institutions and granting of permission for the establishment of educational
institutions is governed by Section 20. This Section was amended by Act No. 27
of 1987 wherein it was provided that no educational institutions shall be
established except in accordance with the provisions of the Act. The State
Government is authorised to appoint by notification a competent authority for
such area as may be specified in the notification. Sub- Section (1) of Section
20 provides that the competent authority appointed by the State Government
shall from time to time, conduct a survey for the purpose of identifying the
educational needs of the locality under its jurisdiction and thereafter it
shall issue notification through the local newspapers calling for applications
from the educational agencies desirous of establishing educational
institutions.
Educational
agency means any body of persons including that of religious or linguistic
minority entrusted with the establishment and maintenance of a private
educational institution of a minority educational institution, as the case may
be. Any educational agency applying for such permission shall satisfy the
concerned authority that there is need for providing educational facilities to
the people in the locality. There are some other requirements mentioned in
sub-Section (3) of Section 20 and those conditions have to be fulfilled by the
educational agency for applying of permission for establishing an educational
institution. Section 20 of the A.P. Act reads as follows:- "PERMISSION FOR
ESTABLISHMENT OF EDUCATIONAL INSTITUTIONS:
(1)
The competent authority shall, from time to time, conduct a survey as to
identify the educational needs of the locality under its jurisdiction, and
notify in the prescribed manner through local news papers calling for
applications from the educational agencies desirous of establishing educational
institutions.
(2) (a)
In pursuance of the notification under sub-section (1) any educational agency
including local authority or registered body or persons intending to
(a) establish
an institution imparting education;
(b) xxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxx (d) xxxxxxxxxxxxxxxx
(3)
Any educational agency applying for permission under sub-section (2) shall
(a) before
the permission is granted, satisfy the authority concerned, -
(i) that
there is need for providing educational facilities to the people in the
locality;
(ii)
& (iii) (b) & (c) xxxxxxxxxxxxxxxxxxxxx
(4) On
and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987
no educational institution shall be established except in accordance with the
provisions of the Act." The source of legislation of the A.P. Act is
traced to Entry 25 of the Concurrent List which is to the following effect:-
"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." AICTE Act was enacted by the
Parliament by virtue of the powers under Entry 66 of the Union List wherein
exclusive power is vested with the Central Government with regard to technical
education.
AICTE
Act was enacted with the object of regulating and coordinating the development
of technical education throughout the country and also for establishment of
proper and uniform norms and standard of technical education in India. Under Section 3, the Central
Government shall appoint a Council called All India Council of Technical Education
and under Section 10 of the Act, the Council has the following powers and
functions:- "10 (1) it shall be the duty of the Council to take all such
steps as it may think fit ensuring coordinated and integrated development of
technical education and maintenance of standards and for the purpose 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;
(b) coordinate
the development of technical education, collect data on all related matters and
make forecast of the needed growth and development in technical education;
(c)
allocate and disburse out of the Fund of the Council such grants on such terms
and conditions as it may think fit to i. technical institutions and ii. universities
imparting technical education in coordination with the commission;
(d) promote
innovations research and development in established and new technologies,
generation, adoption and adaptation of new technologies to meet developmental
requirements and for overall improvement of educational processes.
(e) create
schemes for promoting technical education for women, handicapped and weaker
sections of the society.
(f) promote
an effective link between technical education system and other relevant systems
including research and development organizations industry and the community;
(g) evolve
suitable performance appraisal systems for technical institutions and
universities imparting technical education, incorporating norms and mechanisms
for enforcing accountability;
(h) formulate
schemes for the initial and in service training of teachers and identify
institutions or centres and set up new centres for offering staff development programmes
including continuing education of teachers;
(i) lay
down norms and standards for courses, curricula, physical and instructional
facilities, staff pattern, staff qualifications, quality instructions,
assessment and examinations;
(j) fix
norms and guidelines for charging tuitions and other fees;
(k) grant
approval for starting new technical institutions and for introduction of new
courses or programmes in consultation with the agencies concerned;
(l)
advice the central government in respect of grant of character to any
professional body or institution in the field of technical education conferring
powers, rights and privileges on it for the promotion of such profession in its
field including conduct of examination and awarding of membership certificates;
(m)
lay down norms for granting autonomy to technical institutions;
(n) take
all necessary steps to prevent commercialisation of technical education;
(o) provide
guidelines for admission of students to technical institutions and universities
imparting education;
(p) inspect
or cause to inspect any technical institutions;
(q)
withhold or discontinue grants in respect of courses, programmes to such
technical institutions which fails to comply with the directions given by the
council within the stipulated period of time and take such other steps as may
be necessary for ensuring compliance of the directions of the council;
(r)
take steps to strengthen the existing organizations, and to set up new
organizations to ensure effective discharge of the council's responsibilities
and to create positions of professional, technical and supporting staff based
on requirements;
(s) declare
technical institutions at various levels and types offering course in technical
education fit to receive grants;
(t) advise
the commission for declaring any institution imparting technical education as a
deemed university;
(u)
set up a Nations Board of Accreditation to periodically conduct evaluation of
technical institutions or programmes on the basis of guidelines, norms and
standards specified by it and to make recommendation to it, or to the council
or to the commission or to other bodies regarding recognition or de-recognition
of the institution or the programme;
(v) perform
such other functions as may be prescribed.
From
the provisions of the Act, it is clear that the purpose of the enactment was
proper planning and coordinated development of technical education system
throughout the country and promotion of qualitative improvement of such
education and other allied matters. In emphasized the importance of such a
central Council for the promotion of qualitative improvement of technical
education. By virtue of Section 23 of the AICTE Act, the Council is competent
to frame regulations and the regulations are called "All India Council for
Technical Education (Grant of Approval) for starting new technical
institutions, introduction of courses or programmes, approval of intake
capacity of seats for the courses or programme Regulations, 1994." Under
Regulation 9, several committees are formed, namely, Expert Committee, State
Level Committee, Central Task Force, etc. While the Expert Committee is
constituted by the Council in consultation with the Chairman of the Regional
Committee and consists of other representatives of the State Level Committee,
the State Level Committee constituted under sub- regulation 4 of Regulation 9
considers the recommendations of the State Government and others mentioned in
Sub-Regulation 4 and submits its recommendations to the Central Task force,
constituted under sub-regulation 5 of Regulation 9. If there is any
disagreement between the recommendations made by the State Government,
University or Regional Committee, the Central Task Force shall invite
representatives of the respective agencies for further consultations before
making final recommendations.
The
petitioners in the Writ Petitions contended that in view of Section 10 of the
AICTE Act, no permission of the State Government under Section 20 of the Act
was required as the field is completely covered by the AICTE Act. It was argued
that once the approval was granted by the Council, the State Government cannot
refuse permission on the ground that the proposed educational institution may
not subserve the educational needs of the locality. The learned Counsel for the
State, on the other hand, contended that Section 20 of the AP Act and Section
10 of the AICTE Act operate in different fields, there is no conflict between
these provisions and that they are not repugnant to each other and the decision
of the Division Bench is erroneous. It was also contended by the appellant's
Counsel that the State Legislature has legislative competence to pass the
enactment and that, in view of Entry 25 of the Concurrent List, the State alone
would be competent to say whether an institution should be established in an
area to serve the educational needs of that locality.
The
legislative powers of the Parliament and the State Legislatures are governed by
Article 246 to 255 of Part II of the Constitution. Article 246 reads as follows:-
"Subject-matter of laws made by Parliament and by the Legislature of
States.
(1)
Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power
to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the "Union
List").
(2)
Notwithstanding anything in clause (3), Parliament, and, subject to clause (1),
the Legislature of any state also, have power to make laws with respect to any
of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the "Concurrent List").
(3)
Subject to clauses (1) and (2), the Legislature of any State has exclusive
power to make laws for such State or any part thereof with respect to any of
the matters enumerated in List II in the Seventh Schedule (in this Constitution
referred to as the "State List").
(4)
Parliament has power to make laws with respect to any matter for any part of
the territory of India not included [in a State] notwithstanding that such
matter is a matter enumerated in the State List. "
The
Parliament has exclusive power to legislate with respect to any of the matters
enumerated in List I, notwithstanding anything contained in clauses (2) and (3)
of Article 246. The non-obstante clause under Article 246(1) indicates the
predominance or supremacy of the law made by the Union legislature in the event
of an overlap of the law made by Parliament with respect to a matter enumerated
in List I and a law made by the State legislature with respect to a matter
enumerated in List II of the Seventh Schedule.
There
is no doubt that both Parliament and the State legislature are supreme in their
respective assigned fields. It is the duty of the Court to interpret the
legislations made by the Parliament and the State legislature in such a manner
as to avoid any conflict. However, if the conflict is unavoidable, and the two
enactments are irreconcilable, then by the force of the non-onbstante clause in
Clause (1) of Article 246, the Parliamentary legislation would prevail
notwithstanding the exclusive power of the State legislature to make a law with
respect to a matter enumerated in the State List.
With
respect to matters enumerated in the List III (Concurrent List), both the
Parliament and the State legislature have equal competence to legislate. Here
again, the courts are charged with the duty of interpreting the enactments of
Parliament and the State legislature in such manner as to avoid a conflict. If
the conflict becomes unavoidable, then Article 245 indicates the manner of
resolution of such a conflict.
Thus,
the question of repugnancy between the Parliamentary legislation and the State
legislation can arise in two ways. First, where the legislations, though
enacted with respect to matters in their allotted sphere, overlap and conflict.
Second, where the two legislations are with respect to matters in Concurrent
List and there is a conflict. In both the situations, Parliamentary legislation
will predominate, in the first, by virtue of the non-obstante clause in Article
246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245
deals with a situation where the State legislation having been reserved and
having obtained President's ascent prevails in that State; this again is
subject to the proviso that the Parliament can again bring a legislation to
override even such State legislation.
It is
in this background that the provisions contained in the two legislative
enactments have to be scrutnised. The provisions of the AICTE Act are intended
to improve the technical education and the various authorities under the Act
have been given exclusive responsibility to coordinate and determine the
standards of higher education. It is a general power given to evaluate, 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 AP Act does not in any way
encroach upon the powers of the authorities under the Central Act. Section 20
says that the competent authority shall, from time to time, conduct a survey to
identify the educational needs of the locality under its jurisdiction notified
through the local newspapers calling for applications from the educational
agencies.
Section
20(3)(a)(i) says that before permission is granted, the authority concerned
must be satisfied that there is 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 Entry 63, 64, 65 and
66 of List I. Entry 66 of List I to which the legislative source is traced for
the AICTE Act deals with the general power of the Parliament for coordination,
determination of standards in institutions for higher education or research and
scientific and technical educational institutions and Entry 65 deals with the
union agencies and institutions for professional, vocational and technical
training, including the training of police officers, etc. The State has
certainly the legislative competence to pass the legislation in respect of
education including technical education and Section 20 of the Act is intended
for general welfare of the citizens of the State and also in discharge of the
constitutional duty enumerated under Article 41 of the Constitution.
The
general survey in various fields of technical education contemplated under
Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of
any particular area in a State.
It is
a general supervisory survey to be conducted by the AICTE Council, for example,
if any IIT is to be established in a particular region, a general survey could
be conducted and the Council can very much conduct a survey regarding the
location of that institution and collect data of all related matters. But as
regards whether a particular educational institution is to be established in a
particular area in a State, the State alone would be competent to say as to
where that institution should be established. Section 20 of the AP Act and
Section 10 of the Central Act operate in different fields and we do not see any
repugnancy between the two provisions.
This
Court in M. Karunanidhi v. Union of India, (1979) 3 SCC 431 at page 499 held
thus:
"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 and 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 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 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 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.
Narayanamma,
(2003) 1 SCC 228, this court after quoting Article 254 held:
"The
language of the aforesaid article is crystal clear and it inter alia provides
[subject to the provisions of clause (2)] that
9.
(a)if any provisions 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 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 the 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 Acts would prevail." SCC 481, Justice Khare, as he than
was, on the question of transposition of subject "Education" from
List II to List III and its effects, held :
"It
may be remembered that various entries in three lists of the Seventh Schedule
are not powers of legislation but field of legislation. These entries are mere
legislative heads and demarcate the area over which the appropriate
legislatures are empowered to enact law. The power to legislate is given to the
appropriate legislatures by Article 246 and other articles. .Thus the function
of entries in three lists of the Seventh Schedule is to demarcate the area over
which the appropriate legislatures can enact laws but does not confer power
either on Parliament or the State Legislatures to enact laws. It may be
remembered, by transfer of the entries, the character of the entries is not
lost or destroyed." Justice B.N. Kirpal, the then Chief Justice of India,
on the question of admissions in private unaided professional colleges held
that:
".
It must be borne in mind that unaided professional institutions are entitled to
autonomy in their administration while, at the same time, they do not forego or
discard the principle of merit. It would, therefore, be permissible for the
university or the Government at the time of granting recognition, to require a
private unaided institution to provide for merit-based selection while, at the
same time, giving the management sufficient discretion in admitting students.
This can be done through various methods. For instance, a certain percentage of
the seats can be reserved for admission by the management out of those students
who have passed the common entrance test held by itself or by the
State/university and have applied to the college concerned for admission, while
the rest of the seats may be filled up on the basis of counseling by State
agency. This will incidentally take care of poorer and backward sections of the
society. The prescription of percentage of this purpose has to be done by the
Government according to the local needs and different percentages can be fixed
for minority unaided and non-minority aided and professional colleges. The same
principles may be applied to other non-professional but unaided educational
institutions viz. graduation and postgraduation non-professional colleges or
institutions." (2003) 6 SCC 697 at 770 , it was held as under:
"Local
Needs would vary from State to State. Even development of a backward area may
be a local need. The absence of a good educational institution in a particular
area may be a local need. 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 as a unit. For good reasons the State may not like
to establish professional colleges or institutions only in their
capitals." In Jaya Gokul Educational Trust vs. Commissioner-cum- Secretary
Higher Education & Ors (2000) 5 SCC 231, and in Ors. (2004) 1 SCC 86,
similar views were expressed by this Court.
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
AICTE Act and it is constitutionally valid.
In the
result, we set aside the judgment of the Division Bench and the appeals are
allowed accordingly. There will be no order as to costs.
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