Report No. 160
2.2. Attention not drawn towards the material words in clause (k) of section 10 in cases before the Supreme Court.-
In Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645 (decided by a Constitution Bench), the broad scheme of the Act was considered in paras. 189 and 190. After noticing the relevant clauses in section 10 of the Act, the Court observed:-
"Section 3 of the Act provides for the establishment to the Council while section 10 specifies the functions of the Council. Apart from directing generally that the Council shall take all such steps as it may think fit for ensuring coordinate and integrated development of technical education and maintenance of standards, the Act specifically empowers the council, inter alia to "(j) fix norms and guidelines for charging tuition and other fees: (k) grant approval for starting -new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned, and (n) take all necessary steps to prevent commercialisation of technical education."
It is true, there is no express provision in the Act which says that no engineering college or any other college or institution imparting technical education shall be established except with the permission of the Council. But this may be for the reason that such a power was intended to be exercise by the Council itself if it thinks necessary to do so. We are of the opinion that the vast powers conferred upon the Council by section 10, including those specified above, do extend to and entitle it to issue and order to the above effect. It can also say that even in the existing institutions, no new course, faculty or class shall be opened except with its approval."
Unfortunately, no adequate focus and consideration was endowed upon the words in consultation with the agencies concerned occurring at the end of clause (k) of section 10 probably for the reason that in that case the Court was merely-concerned with examining the general scheme of the Act and the facts of the cases before the Court did not call for an examination of the aforesaid words occurring in clause (k) of section 10.
In State of Tamil Nadu v. Adhiyaman Educational & Research Institute, (1995) 4 SCC 104, the two-Judge Bench of the Supreme Court examined at length the scheme and sweep of the Act as well as the scheme and ambit of two State enactments, namely, Tamil Nadu Private Colleges (Regulation) Act, 1976 (and the rules made thereunder) and the Madras University Act, 1923 (and the rules and statutes made thereunder). The Court held that the Act is relatable to and has been enacted under and in pursuance of Entry 66 of List 1 and Entry 25 of List III of the Seventh Schedule to the Constitution.
The Court also found that the aforesaid two Tamil Nadu enactments were relatable to Entry 25 of List III and accordingly held that in so far as the said enactments occupy the field occupied by the Act, the State enactments are void and inoperative by virtue of Article 254 of the Constitution of India. It was pointed out that the said enactments had not obtained the assent of the President as contemplated by clause (2) of the said article. The observations made in para. 27 of the judgment (page 124) are relevant and are being extracted out below, dealing with the conflict between T.N. Private Colleges (Regulation) Act and the Act:-
"27. The provisions of the State Act enumerated above show that if it is made applicable to the technical institutions, it will overlap and will be in conflict with the provisions of the Central Act in various areas and, in particular granting approval for starting new technical institutions and for introduction of new courses or programmes What is further, the primary object of the Central Act, as discussed earlier, is to provide for the establishment of an All India Council for Technical Education with a view, among others to plan and coordinate the development of technical education system throughout the country and to promote the qualitative improvement of such education and to regulate and properly maintain the norms and standards in the technical education system which is a subject within the exclusive legislative field of the Central Government as is clear from Entry 66 of the Union List in the Seventh Schedule.
All the other provisions of the Act have been made in furtherance of the said objectives. They can also be deemed to have been enacted under Entry 25 of List 111. This being so, the provisions of the State Act which impinge upon the provisions of the Central Act are void and, therefore, unenforceable."
While examining the conflict between the Act and the Madras University Act, the Court made the following observations in para. 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 entrusted with the power, particularly granting approval for starting new technical institutions or introducing new courses or programmes 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 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 conditions 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."
Unfortunately again, in this decision too, no proper focus was endowed upon the last words in clause (k) of section 10, namely- "in consultation with the agencies concerned". Evidently, they were not specifically brought to the notice of the Court while considering the issue of power to grant approval for the establishment of a technical institution.
It may be noted that according to the Act, the power and function of the Council to grant approval for starting new technical institutions and for introduction of new courses or programmes is not absolute or exclusive; the Act contemplates this power being exercised "in consultation with the agencies concerned". The "agencies concerned" must necessarily include the University which has to grant affiliation and the State Government wherever there is a State enactment governing or touching upon the grant of approval for starting new technical institutions and for introduction of new courses or programmes.