THE JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY REGISTRAR versus SANGAM LAXMI BAI VIDYAPEET & ORS. on 29 October 2018

[2018] 14 S.C.R. 103

THE JAWAHARLAL NEHRU TECHNOLOGICALUNIVERSITY REGISTRAR

v.

SANGAM LAXMI BAI VIDYAPEET & ORS.

(Civil Appeal No. 10807 of 2018)

OCTOBER 29, 2018

[ARUN MISHRA AND INDIRA BANERJEE, JJ.]

Telangana Education Act, 1982 – s.20 – Respondent-Collegeapplied to the appellant-University for grant of No ObjectionCertificate (NOC) to start the D.Pharma course in their collegeduring the academic year 2018-2019 – University declined NOCon the ground that as per the Government’s policy and perspectiveplan, NOC was not to be granted for new institutions and newcourses – Challenged by respondent – High Court allowed the writpetition – On appeal, held: s.20 deals with permission for theestablishment of educational institutions – s.20(1) provides thatcompetent authority shall conduct survey to identify the educationalneeds of the locality under its jurisdiction as to how many institutionsare operating in the area and whether there is any further requirementof opening educational institutions/new courses in existing colleges– s.20(3) provides that any educational agency applying forpermission u/s.20(2) shall before the permission is granted, satisfythe authority concerned that there is a need for providing educationalfacilities to the people in the locality – In case there are alreadylarge number of institutions imparting education in the area, thecompetent authority may be justified not to grant the NOC, forpermitting an institution to come up in the area – s.20 intends toprevent the mushroom growth of the institutions/courses – There isalready a paucity of well-qualified teachers in a large number ofinstitutions and the available seats in Pharmacy course in theHyderabad city are remaining vacant every year in spite of thereduction in number of seats – Thus, in the instant case when 30institutions in Hyderabad city are already running Pharmacy course,the refusal to grant NOC by the University was wholly justified –Policy decision of the State Government cannot be said to be illegal– High Court erred in holding that the University was bound toissue NOC – AICTE Act, 1987 – ss.2(g), 23(1) r/w ss.10 and 11.

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AAll India Council for Technical Education (Grant of approvalsfor the Technical Institutions) Regulations, 2016 – Regulation 4.18– If repugnant to Regulations 5.2 and 5.3 of 2017 Regulations –Held: Regulation 4.18 cannot be said to be repugnant to Regulations5.2 and 5.3 of the 2017 Regulations – Jawaharlal Nehru AffiliationProcedure and Regulations, 2017.B

Allowing the appeal, the Court

HELD : 1.1 Section 20 of the Telangana Education Act,1982 deals with permission for the establishment of educationalinstitutions. Section 20(1) provides that competent authority shallCconduct a survey as to identify the educational needs of the localityunder its jurisdiction. Section 20(3) provides that any educationalagency applying for permission under section 20(2) shall beforethe permission is granted, satisfy the authority concerned thatthere is a need for providing educational facilities to the peoplein the locality. The survey is conducted so as to identify theDeducational needs of the locality viz., as to how many institutionsare operating in the area and whether there is any furtherrequirement of opening educational institutions/new courses inexisting colleges. In case there are already a large number ofinstitutions imparting education in the area theEcompetent authority may be justified not to grant the NOC,for permitting an institution to come up in the area.[Para 12][110-H; 111-A; 112-G-H; 113-A]

1.2 The provisions contained in Section 20 of the 1982 Actare wholesome and intend not only to cater to the educationalFneeds of the area but also prevent the mushroom growth of theinstitutions/courses. In case institutions are permitted to run eachand every course that may affect the very standard of educationand may ultimately result in sub-standard education. There isalready a paucity of well-qualified teachers in a large number ofinstitutions and the available seats in Pharmacy course in theGHyderabad city are remaining vacant every year in spite of thereduction in a number of seats. It had not been possible to fill upthe available vacancies due to non-availability of students. Thus,it is apparent that when 30 institutions in Hyderabad city arealready running Pharmacy course, the refusal to grant NOC byHthe University was wholly justified. [Para 13][113-B-D]

1.3 Regulations 5.2 and 5.3 of Jawaharlal Nehru AffiliationProcedure and Regulations, 2017 provide that a new collegeproposing to offer technical education with the University affiliationshall first seek a NOC from the University before applying toAICTE/PCI/any other statutory body. Regulation 5.3 providesthat the permission for starting of new programmes in the existingcolleges shall be considered by the University as per the priority/policy of the State Government if any. The High Court erred inlaw in holding that it was not permissible for the State Governmentto frame such a policy and the University was bound to issueNOC. [Paras 14, 16][113-D-E; 115-G-H]

1.4 The Government of Telangana vide its communicationto the All India Council of Technical Education Regulations(AICTE) had expressed serious concern at the proliferation andestablishment of technical institutions and the unprecedentedexpansion in the intake in all the courses offered by all thetechnical institutions coming within the purview of AICTE. Datawas given in the tabular form including that of the Pharmacy. Itwas pointed out that in the year 2015-16 sanctioned intake inPharmacy was 11490, seats remained vacant were 4035, inacademic session 2016-17 sanctioned intake was 9226, seatsvacant were 1892. [Para 17][116-A-C]

2. The AICTE Act, 1987 defines technical education insection 2(g) to mean programmes of education inter alia inPharmacy also. There is no provision in the said Act to the contraryto curtail the power of the State as well as of University. TheAICTE has framed the Regulations under the Act of 1987 in theexercise of the power conferred under section 23(1) read withsections 10 and 11 of the Act of 1987 called the All India Councilfor Technical Education (Grant of approvals for the TechnicalInstitutions) Regulations, 2016. Regulation 4.18 provides thatthe State Government/UT Administration and the AffiliatingUniversity/Board, as the case may be, shall forward their viewsalong with the perspective plan of the State and then the applicationshall be processed for grant of approval. Regulation 4.18 cannotbe said to be repugnant to Regulations 5.2 and 5.3 of theUniversity, and there is no repugnancy in AICTE Act and Section20 of the Act of 1982. [Paras 18, 19][116-D-F; 117-C]

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A3. The decision taken by the State Government as apparentfrom facts reflected in perspective plan is based on a survey andsupported by the data. Considering the fact that seats are goingabegging. Even in 2017-18 in the Pharmacy course, data has beengiven that among 56 colleges affiliated to the University, 30 werein the city of Hyderabad and out of total 1630 seats, 173 hadBremained vacant. Thus, it is apparent that a large number of seatsremained vacant. Not more than 30 seats can be allotted to oneinstitution. The mushroom growth of educational institutionscannot be permitted. Standard of education cannot becompromised and sacrificed by permitting institutions to comeCup in a reckless manner without there being any requirement forthem at a particular place. The decision of State had been takenin an objective manner and the same is based on the considerationof data and could not be said to be irrational or arbitrary in anymanner whatsoever. The policy decision of the State Governmentcannot be said to be illegal and on that basis, the University hasDtaken the decision in terms of Section 20 of the Act of 1982. Inthe instant case, the matter was about the proposed location andaffiliation, out of 36 Pharmacy colleges in the State of Telanganaand 30 are located in Hyderabad city alone which are more thanadequate in number. Thus, rightly decision has been taken notEto start another new course at the proposed location at Hyderabadcity. [Paras 21, 27 and 30][119-D, H; 120-A; 127-B-C]

Government of Andhra Pradesh v. J.B. EducationalSociety (2005) 3 SCC 212 : [2005] 2 SCR 302 – reliedon.

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State of T.N v. Adhiyaman Educational & ResearchInstitute (1995) 4 SCC 104 : [1995] 2 SCR 1075 ; JayaGokul Education Trust v. Commissioner & Secretary toGovernment of Higher Education Department,Thiruvananthapuram, Kerala (2000) 5 SCC 231 :G[2000] 2 SCR 1234 ; State of Maharashtra v. SantDnyaneshwar Shikshan Shastra Mahavidyalaya(2006) 9 SCC 1 : [2006] 3 SCR 638 ; ThirumurugaKirupananda Variyar Thavathiru Sundara SwamigalMedical Education & Charitable Trust v. State of Tamil Nadu (1996) 3 SCC 15 : [1996] 2 SCR 422 ; RungtaEngineering College, Bhilai v. Chhattisgarh SwamiVivekananda Technical University (2015) 11 SCC 291: [2014] 12 SCR 796 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10807of 2018.

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From the Judgment and Order dated 02.02.2018 of the HighCourt of Judicature at Hyderabad for The State of Telangana and TheState of Andhra Pradesh in W.P. No. 31293 of 2017.

K. Radhakrishnan, Sr. Adv., P. Venkat Reddy, P. Prabhakar,Prashant Tyagi for M/s. Venkat Palwai Law Associates, Advs. for theAppellant.

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V. Giri, Sr. Adv., Mahfooz Nazki, Avinash Tripathi, M. P. Devanath,,Advs. for the Respondents.

The Judgment of the Court was delivered by F

ARUN MISHRA, J.

1. The question involved in the appeal is whether a University isbound to give ‘No Objection Certificate’ (NOC) for opening aneducational institution or for a new course irrespective of educationalneeds of the locality under its jurisdiction. In other words, is the Universitybound to give NOC in a local area irrespective of whether institutionsare required in the area and thereby promote the mushroom growth ofinstitutions?

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2. Respondent no.1 – Sangam Laxmibai Vidyapeeth, is a registeredsociety which has sponsored and manages Bojjam Narasimhulu H

APharmacy College for Women, being Respondent No.2, set up atHyderabad. On 27.7.2017, Respondent No.2 applied to the JawaharlalNehru Technological University (for short, “the University”) for grantof No Objection Certificate (NOC) to start the D.Pharma course intheir college during the academic year 2018-2019. On 19.8.2017, theUniversity declined NOC on the ground that as per the Government’sBpolicy and perspective plan, NOC was not to be granted for newinstitutions and new courses.

3. Respondent No.2 on 26.8.2017 filed an application before thePharmacy Council of India (for short, ‘the PCI’) for grant of approvalfor starting D. Pharma course for the academic year 2018-2019. TheCPCI insisted on the production of NOC certificate from the University.

4. Challenging the communication dated 19.8.2017 of the Universitydeclining NOC and also challenging regulations 5.1, 5.2 and 6 of theJawaharlal Nehru Affiliation Procedure and Regulations, 2017 (hereinafterreferred to as “the 2017 Regulations”), the respondent filed a writ petitionDbefore the High Court.

5. In its counter affidavit filed in the High Court, the Universitycontended that under the provisions of Section 20 of the TelanganaEducation Act, 1982 (hereinafter referred to as “the Act of 1982”),obtaining of NOC as per the All India Council of Technical EducationERegulations (for short, ‘the AICTE Regulations’) and the 2017Regulations, was necessary for starting new courses.

6. The validity of Section 20 of the erstwhile Andhra PradeshEducation Act, which is in pari materia with Section 20 of the Act of1982, has been upheld in Government of Andhra Pradesh v. J.B.FEducational Society, (2005) 3 SCC 212. The said Act stands adoptedin the State of Telangana.

7. The Government of Telangana also filed a counter-affidavitpointing out that Government has taken a policy decision and requestedthe AICTE by a letter dated 29.11.2016 to declare a holiday on theGestablishment of new technical institutions for the academic year 2017-2018 onwards. The policy decision was based upon the detailed studyof a large number of technical institutions running in the State and inparticular Hyderabad, wherein even the available seats were lying vacant,and the addition of more seats and more colleges was bound to adverselyimpact the quality of education and would make them financially unviable.H

Ultimately, the fall in the standards of education may result in the lowemployability of the students. The Government had prepared a perspectiveplan for technical education in the State and communicated the same tothe AICTE. The Perspective Plan had been prepared in consonancewith the provisions contained in Section 20 of the Act of 1982.

8. The High Court by the impugned judgment and order hadallowed the writ application. It has observed that grant of NOC will notenable an institution to start a course. They have several other hurdlesto be cleared for starting D. Pharma. The High Court has held thatRegulations 5.2, 5.3 and 6 of the 2017 Regulations are valid. The viresof the regulations has been upheld. However, the High Court held thatpolicy decision taken by the Government not to allow new courses to bestarted is not in terms of section 20 of the Act of 1982 as the provisiondoes not vest power upon the Government to declare a holiday on theground that a lot of seats are going vacant. The High Court has observedthat in case the seats are going vacant educational institutions willautomatically shut down courses for which there is no demand. Unlessstarting of a course or running of an existing course is economicallyviable, no educational agency would take up the venture. That is theconcern of the educational agency and not of the Government or of theUniversity. The High Court has further observed that uneducatedunemployed may find a course where their energies can be channelizedand it is better to have educated unemployed rather than to have abreed of uneducated unemployed. The perspective plan prepared bythe Government has also been considered. It has been observed thatseats remaining vacant cannot be the sole criterion for refusal of NOC.The enrolment of students in Pharma-D has registered a marginal increaseover the years. The University has been directed to grant NOC.Thereafter, it will be open to the AICTE and PCI to examine theapplication of the petitioner for D. Pharma course and thereafter it willbe open to the University to examine with reference to its own Statutesas to whether petitioner may be granted affiliation or not. Aggrieved bythe same, the appeal has been preferred.

9. It was submitted by the learned senior counsel appearing onbehalf of the appellant-University that there are thirty institutions whichare running pharmacy courses in the city of Hyderabad. The number ofinstitutions is more and it is not possible to cater to the needs of allcolleges as students are not enough. The seats remain vacant in spite of A

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Athe reduction in the number of seats. There is a paucity of the teachersas well. The Government of Telangana after a detailed study has prepareda perspective plan and has forwarded it to the AICTE requesting it notto open new technical courses as there is a mushroom growth of theinstitutions in the city of Hyderabad. Considering the perspective plan,the decision has been taken not to grant NOC by the University in termsBof the provisions contained in section 20 of the Act of 1982 and theRegulations of the University. The High Court has erred in law ininterfering with the policy decision of the State Government on legallyimpermissible grounds.

10. Per contra, learned senior counsel on behalf of the respondentCcontended that it was not open to the Government to frame such a policyof declaring a holiday. It is for the AICTE or the PCI to take intoconsideration the requirements of the area whether institutions have tobe permitted to start a new course. Mainly by the fact that some seatshave remained vacant in the course of Pharmacy, the NOC could notDhave been declined. As it was for the PCI as well as the AICTE to takeinto consideration the various aspects after the issuance of the NOC.Thus, University, as well as the State Government, have exceeded theirpowers. The statistics submitted are not of D. Pharma course but relatesto the other courses of pharmacy. The imposition of the moratorium forthe academic year 2018-2019 is bad in law as it would be open to theEUniversity, after approval is granted by the AICTE and PCI, to examinewhether the institution fulfills its requirements for the purpose of grantof affiliation. In the perspective plan, it is pointed out that there is needto start pharmacy course as imbalance has been created by theestablishment of other technical institutions such as engineering etc. whichFmay not be good for the country’s growth.

11. The pivotal point for consideration is whether the StateGovernment and the University have the power to frame a policy and torefuse the grant of NOC to start a course in Pharmacy in the city ofHyderabad and the decision of the State Government imposing theGmoratorium for the year 2018-19 is without jurisdiction, irrational orarbitrary.

12. Section 20 of the Act of 1982 deals with permission for theestablishment of educational institutions. Section 20(1) provides that acompetent authority shall conduct a survey as to identify the educationalHneeds of the locality under its jurisdiction. Section 20(3) provides that JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAMLAXMI BAI VIDYAPEET [ARUN MISHRA, J.]

any educational agency applying for permission under section 20(2) shallbefore the permission is granted, satisfy the authority concerned thatthere is a need for providing educational facilities to the people in thelocality. Section 20 is extracted hereunder:

“[20. Permission for establishment of educationalinstitutions: - (1) The competent authority shall, from time totime, conduct a survey as to identify the educational needs of thelocality under its jurisdictionand notify in the prescribed mannerthrough the local newspapers calling for applications from theeducational agencies desirous of establishing educationalinstitutions.

(2) In pursuance of the notification under sub-section (1), anyeducational agency including a local authority or registered bodyof persons intending to - (a) establish an institution imparting education; (b) open higher classes in an institution imparting primary education;

(c) upgrade any such institution into a high school; or (d) open new courses (Certificate, Diploma, Degree, Post-Graduate Degree Courses, etc.)

may make an application, within such period in such manner andto such authority as may be notified for the grant of permissiontherefor.

-(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 a need for providing educational facilities to thepeople in the locality ;

(ii) that there is adequate financial provision for continued andefficient maintenance of the institution as prescribed by thecompetent authority ;

(iii) that the institution is proposed to be located in sanitary andhealthy surroundings ;

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(b) enclose to the application, -

(i) title deeds relating to the site for building, playground, and gardenproposed to be provided ;

(ii) plans approved by the local authority concerned which shallconform to the rules prescribed therefor; and B

(iii) documents evidencing availability of the finances needed forconstructing the proposed buildings; and

(c) within the period specified by the authority concerned in theorder granting permission, - C

(i) appoint teaching staff qualified according to the rules made bythe Government in this behalf ;

(ii) satisfy the other requirements laid down by this Act and therules and orders made thereunder failing which it shall becompetent for the said authority to cancel the permission.

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(4) On and from the commencement of the Andhra PradeshEducation (Amendment) Act, 1987, no educational institution shallbe established except in accordance with the provisions of thisAct and any person who contravenes the provisions of this sectionor who after the permission granted to him under this sectionEhaving been cancelled continues to run such institution shall bepunished with simple imprisonment which shall not be less thansix months but which may extend to three years and with finewhich shall not be less than three thousand rupees but which mayextend to fifty thousand rupees :

Provided further that the Court convicting a person under thissection shall also order the closure of the institution with respectto which the offense is committed.”

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(emphasis supplied)

A bare reading of the aforesaid provisions of section 20(1) makesGit clear that the survey is conducted so as to identify the educationalneeds of the locality would definitely include within its ken how manyinstitutions are operating in the area and whether there is any furtherrequirement of opening educational institutions/new courses in existingcolleges, and it is also imperative under section 20(3)(a)(i) that educationalHagency has to satisfy the authority that there is a need for providing educational facilities to the people in the locality. In case there are alreadya large number of institutions imparting education in the area thecompetent authority may be justified not to grant the NOC, for permittingan institution to come up in the area.

13. The provisions contained in section 20 are wholesome andintend not only to cater to the educational needs of the area but alsoprevent the mushroom growth of the institutions/courses. In caseinstitutions are permitted to run each and every course that may affectthe very standard of education and may ultimately result in sub-standardeducation. There is already a paucity of well-qualified teachers in alarge number of institutions and the available seats in Pharmacy coursein the Hyderabad city are remaining vacant every year in spite of thereduction in a number of seats. It had not been possible to fill up theavailable vacancies due to non-availability of students. Thus, it is apparentthat when 30 institutions in Hyderabad city are already running Pharmacycourse, the refusal to grant NOC by the University was wholly justified.

14. Apart from the provisions contained in section 20, when weconsider Regulations 5.2 and 5.3 which clearly provide that a new collegeproposing to offer technical education with the University affiliation shallfirst seek a NOC from the University before applying to AICTE/PCI/any other statutory body. Regulation 5.3 provides that the permission forstarting of new programmes in the existing colleges shall be consideredby the University as per the priority/policy of the State Government ifany. Regulations 5.2 and 5.3 are extracted hereunder:

“5.2 – A new college proposing to offer technical educationwith the University affiliation shall first seek a No ObjectionCertificate (NOC) from the University before applying to AICTE/PCI/other Statutory Body.

5.3 – The permission for establishing Colleges and starting ofnew programs in the existing Colleges shall be considered by theUniversity as per the priority/policy of the state government ifany.”

15. In Government of A.P. & Anr. v. J.B. Educational Society& Anr. (supra), the Court considered the validity of section 20 of theAct of 1982 vis-à-vis section 10 of AICTE Act of 1987 and observedthat the two provisions are not repugnant to each other and they operatein different fields. The object and purpose of two enactments had been A

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Aconsidered by this Court and it observed that if there are more collegesin a particular area, the State would be justified in not granting permissionto one more college in that area. Entry 25 of the Concurrent List givespower to the State Legislature to make laws regarding education, includingtechnical education. The AICTE Act deals with the general power ofParliament for coordination, determination of standards in institutionsBfor higher education or research and scientific and technical educationalinstitutions and Entry 65 of List I deals with the union agencies andinstitutions. The State has the competence to pass such legislation andSection 20 of the Act of 1982 is for the welfare of the State. The Courtobserved:

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“13. It is in this background that the provisions contained in thetwo legislative enactments have to be scrutinized. The provisionsof the AICTE Act are intended to improve the technical educationand the various authorities under the Act have been given exclusiveresponsibility to coordinate and determine the standards of higherDeducation. It is a general power given to evaluate, harmonize andsecure proper relationship to any project of national importance.Such a coordinate action in higher education with a proper standardis of paramount importance to national progress. Section 20 ofthe AP Act does not in any way encroach upon the powers of theauthorities under the Central Act. Section 20 says that theEcompetent authority shall, from time to time, conduct a survey toidentify the educational needs of the locality under its jurisdictionnotified through the local newspapers calling for applications fromthe educational agencies. Section 20(3)(a)(i) says that beforepermission is granted, the authority concerned must be satisfiedFthat there is a need for providing educational facilities to the peoplein the locality. The State authorities alone can decide about theeducational facilities and needs of the locality. If there are morecolleges in a particular area, the State would not be justified ingranting permission to one more college in that locality. Entry 25of the Concurrent List gives power to the State Legislature toGmake laws regarding education, including technical education. Ofcourse, this is subject to the provisions of Entry 63, 64, 65 and 66of List I. Entry 66 of List I to which the legislative source istraced for the AICTE Act deals with the general power of theParliament for coordination, determination of standards inHinstitutions for higher education or research and scientific and JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAMLAXMI BAI VIDYAPEET [ARUN MISHRA, J.]

technical educational institutions and Entry 65 deals with the unionagencies and institutions for professional, vocational and technicaltraining, including the training of police officers, etc. The Statehas certainly the legislative competence to pass the legislation inrespect of education including technical education and Section 20of the Act is intended for the general welfare of the citizens of theState and also in discharge of the constitutional duty enumeratedunder Article 41 of the Constitution.

14. The general survey in various fields of technical educationcontemplated under Section 10(1)(a) of the AICTE Act is notpertaining to the educational needs of any particular area in aState. It is a general supervisory survey to be conducted by theAICTE Council, for example, if any IIT is to be established in aparticular region, a general survey could be conducted and theCouncil can very much conduct a survey regarding the locationof that institution and collect data of all related matters. But asregards whether a particular educational institution is to beestablished in a particular area in a State, the State alone wouldbe competent to say as to where that institution should beestablished. Section 20 of the AP Act and Section 10 of the CentralAct operate in different fields and we do not see any repugnancybetween the two provisions.

21. The educational needs of the locality are to be ascertainedand determined by the State. Having regard to the regulationsframed under the AICTE Act, the representatives of the Statehave to be included in the ultimate decision-making process andhaving regard to the provisions of the Act, the Writ Petitionerswould not in any way be prejudiced by such provisions in the A.P.Act. Moreover, the decision, if any, taken by the State authoritiesunder Section 20(3)(a)(i) would be subject to judicial review andwe do not think that the State could make any irrational decisionabout granting permission. Hence, we hold that Section 20(3)(a)(i)is not in any way repugnant to Section 10 of the AICTE Act andit is constitutionally valid.”

16. In view of the aforesaid decision, the High Court has erred inlaw in holding that it was not permissible for the State Government toframe such a policy and the University was bound to issue NOC. Thedecision of the High Court runs to the contrary, ignores and overlooksthe law laid down in the said decision.

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A17. The Government of Telangana vide its communication dated29.11.2016 to the AICTE had communicated the views of the StateGovernment regarding AICTE approval for the establishment ofeducational institutions for the session 2017-18. After discussing thematter by the Director of Technical Education, Vice-Chancellor of theUniversity and State Council of Higher Education the State GovernmentBhad expressed serious concern at the proliferation and establishment oftechnical institutions and the unprecedented expansion in the intake in allthe courses offered by all the technical institutions coming within thepurview of AICTE. Data was given in the tabular form including that ofthe Pharmacy. It was pointed out that in the year 2015-16 sanctionedCintake in Pharmacy was 11490, seats remained vacant were 4035, inacademic session 2016-17 sanctioned intake was 9226, seats vacantwere 1892.

18. The AICTE Act, 1987 defines technical education insection 2(g) to mean programmes of education inter alia in PharmacyDalso. There is no provision in the said Act to the contrary to curtail thepower of the State as well as of University. The AICTE has framed theRegulations under the Act of 1987 in the exercise of the power conferredunder section 23(1) read with sections 10 and 11 of the Act of 1987called the All India Council for Technical Education (Grant of approvalsfor the Technical Institutions) Regulations, 2016. The technical institutionEis required to seek prior approval of the Council as provided in Regulation4.2. Regulation 4.18 provides that the State Government/UTAdministration and the Affiliating University/Board, as the case may be,shall forward their views along with the perspective plan of the Stateand then the application shall be processed for grant of approval.FRegulation 4.18 is extracted hereunder:

“4.18 The State Government/UT Administration and theAffiliating University/Board shall forward their views on theapplications received under Clause 4.1 as applicable, with validreasons along with the perspective plan of the State,within a periodGof 21 days from the date of receipt of applications which shall betaken into account by the Regional Committee for furtherprocessing for grant of approval. If the application is not processedfurther, the processing fee after a deduction of 50000/- (RupeesFifty thousand only) shall be refunded to the applicant.

JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAMLAXMI BAI VIDYAPEET [ARUN MISHRA, J.]

If the views of the State Government/UT Administration and theAffiliating University/Board are not received within a prescribedtime schedule as mentioned in the Approval Process Handbook, itshall be presumed that they do not have any objection and theCouncil shall proceed further for processing of applications.However, the Council shall consider the previous communications,if any, received from the State Government/UT administration,the Affiliating University/Board against any Institutions.”

(emphasis supplied)

19. Regulation 4.18 cannot be said to be repugnant to Regulations5.2 and 5.3 of the University, and there is no repugnancy in AICTE Actand section 20 of the Act of 1982 as observed by this Court in Governmentof A.P. & Anr. v. J.B. Educational Society & Anr. (supra). Theperspective plan had been prepared by the State of Telangana for 2018-19. In the perspective plan the State Government has pointed out theabstract of courses and seats in the existing engineering colleges for theacademic year 2017-18 and it was mentioned that there was an imbalanceof seats. Following is the extract relied upon by the respondents:

“A perusal of the above Table reveals the fact that the fourprogrammes viz. Information Technology, Computer Science andEngineering, Electronics and Communication Engineering andElectrical and Electronics Engineering together account for 83,290seats of the total Intake of 1,26,855 seats. This accounts for nearly66% of the seats and rests account for about 43,565 seats, whichis 34% of the total intake. This lopsided priority will, in the longrun, have an adverse effect on the growth of infrastructure in thecountry with its attendant consequences.

This imbalance needs to be corrected on a priority basis so thatthe manufacturing and other sectors do not suffer. The courseson demand related to latest Technologies and needs of the Industrysuch as Mining, Textile, Pharmacy, Automobile, Aviation CivilEngineering, and Construction Technology and hence theirenhancement in Intake may be considered in the State, whilekeeping in view of the 14 Thrust Areas as mentioned in Para 5,Page 14 of this Plan. This is also keeping in view that the Pharmacity, Textile hub, Fabcity, ITIR, IT Hubs, etc. are emerging inTelangana State.”

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AAt the same time in the conclusions and recommendations madeby the Government in perspective plan, it has been pointed out that AICTEmay declare a holiday on the establishment of new technical institutionsfor the academic year 2018-19. This holiday applies not only to theestablishment of new engineering colleges but may also be extendedinter alia to B-Pharmacy institutions. It was also pointed out that in caseBthe Pharmacy Council of India has not accorded the approval, AICTEshould not grant approval to the Pharmacy colleges. It was inter aliamentioned in the recommendations that new programmes may besanctioned in Mining, Granite, Textile, Pharmacy, Automobile etc. basedon “new technologies”. However, it was not the case, that course wouldCbe based on new technology. Following is the relevant extract of theconclusions and recommendations made by the State:“6. CONCLUSIONS & RECOMMENDATIONS

Thus, the various concerns that arise from all the above data aresummarized below for the consideration of the All India CouncilDof Technical Education:- Is su eR ecom mendation•Th e A ICTE has been sanctio nin g the •T he A IC TE may thus declare a ho liday Col leges rou tinel y every year w itho ut on th e es tablis hm ent of N ew T echn ical act ually as sessin g the ‘N eed’ of the In stit utio ns from th e Acad emic Y ear State. W ith a m as sive n um ber o f su ch 20 18 -1 9. Th e h olid ay app lies n ot o nly Col leges establish ed in the State, th ere w ith reg ard to the estab lishm ent of N ew is a s ev ere s hortage of q ualified E ngineering C olleg es in the State bu t ETeachi ng faculty , wh ich is s erious ly may also b e extended to B.Pharm acy , affecting the Qu ality o f Ed ucatio n M BA/M CA Institu tio ns.” offered by man y o f these i nstit utio ns. Mo reo ver, it is ob serv ed th at a large nu mb er of seats are falling vacant every year as the to tal nu mb er of seats availabl e is far mo re th an the tak ers. D uring the y ear 2 01 6-17 for i nstance, there are ab out 32 784 seats an d d urin g F20 17-1 8, there are 2 9367 seats that rem ained vacan t i n the E ngin eerin g cou rse (b as ed on the affili ati ons ). W ith p oo r adm issi ons , th e ‘fin ancial viability’ in running several col leges is becom in g a prob lem and thu s m akin g Col leges to offer po or Q uality of Ed ucatio n, w hich is totally un desirabl e. In fact, in several GCol leges, the ad mis sion s d urin g last year an d this year in Engin eerin g an d MC A program mes are ju st sin gle digits. T his situ ati on has l ed to an un healthy com petition amo ng the Col leges for admi ssions b y w oo in g the stu dents wi th all so rts o f false prom ises. This i s hig hly harmful to the Pro fes sio nal Educati onal Sy stem in Hthe State.

“OTHER RECOMMENDATIONS

In view of all the above and to improve the Quality of Educationin Private, Unaided Colleges in the State of Telangana, it isrecommended that:

• New Programmes may be sanctioned such as Mining, Granite,Textile, Pharmacy, Automobile, Civil Eng. Construction Technologybased on New Technologies and the needs of the Industry keepingin view the 14 Thrust Areas mentioned in Para 5 of Page 14 ofthis Plan.”

20. Admittedly it is not a case of new technology to be adoptedfor the proposed course of D-Pharma by the college in question. Thus,the State had put up a moratorium for Pharmacy courses also. It issignificant to note that in the conclusions and recommendations, it wasobserved that AICTE had permitted imbalanced growth of the institutionsin the area which could be avoided. In fact, we see that such an expertbody often ignores such relevant factors which makes action arbitrary.

21. The decision taken by the State Government to impose amoratorium as apparent from facts reflected in perspective plan is basedon a survey and supported by the data. Considering the fact that seatsare going abegging. Even in 2017-18 in the Pharmacy course, data hasbeen given in the SLP that among 56 colleges affiliated to the University,30 were in the city of Hyderabad and out of total 1630 seats, 173 hadremained vacant. Thus, it is apparent that a large number of seatsremained vacant. Not more than 30 seats can be allotted to one institution.In the circumstances, the observation of the High Court that it was forthe institution to worry and consider the viability and it was not for theUniversity or State Government to take same into consideration, iscompletely a flimsy and impermissible reason employed. The mushroomgrowth of educational institutions cannot be permitted. The observationmade by the High Court that unfit institution will automatically shut downthe courses is not the judicious approach warranted in such matters. It isnot only that the requirement of the locality should exist but it has to beensured that only the standard educational institutions should come upand once they come up, they should be able to survive. A large numberof Institutions are not to be opened up to die an unnatural death on theprinciple of survival of the fittest and due to non-availability of teachers/students. Standard of education cannot be compromised and sacrificed A

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Aby permitting institutions to come up in a reckless manner without therebeing any requirement for them at a particular place. There is a need tostrengthen the existing system of education not to make it weak by furthercomplicating the issues by wholly unwarranted approach as the oneadopted by the High Court. It cannot be left at the choice of the institutionto open the course whenever or wherever they desire. The High CourtBhas also erred in observing that the seats remaining vacant could not bethe relevant criteria for refusal of NOC.

22. Mr. V. Giri, learned senior counsel appearing for therespondents as referred to the decision in State of T.N v. AdhiyamanEducational & Research Institute, (1995) 4 SCC 104, to contend thatConce the field is occupied by the AICTE Act enacted under Entry 66List I, the State Legislation falling under Entry 25 List III to the extent itis in conflict with the Central Legislation, would be void. In case ofrepugnancy between legislation made by Parliament and that made bythe State Legislation on a subject covered under List III, the Central DLegislation shall prevail and to that extent, the State Legislation shall bevoid unless it is saved by Article 254(2) of the Constitution. The expressioncoordination used in Entry 66 has been considered by the Court to meanharmonization with a view to forging a uniform pattern for a concertedaction according to a certain design, scheme or plan of development. Itis further observed that whether the State law is repugnant to the CentralEAct under Entry 25 will depend upon the facts of each case. Under theAICTE Act, the Council has been established for coordinated andintegrated development of the technical education system at all levelsthroughout the country. It is required to ensure proper maintenance ofnorms and standards in the technical education system. The norms and

Statutes

Fstandards to be prescribed for the technical education intend to ensurethe growth of technical education in all parts of the country. The normsand standards have to be reasonable, adaptable, attainable andmaintainable by institutions throughout the country. When it comes tosuch a matter, the provisions of the State Act which impinge upon the provisions of the Central Act are void and therefore unenforceable. SoGfar as the matters which fall under Section 10 of the AICTE Act isconcerned, in case of an institute imparting technical education, the CentralAct has to prevail. At the same time, this Court in the aforesaid decisionhas observed that provisions of the University Act regarding affiliationof technical colleges like the engineering colleges and the conditions forHgrant and continuation of such affiliation by the University shall, however, JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAMLAXMI BAI VIDYAPEET [ARUN MISHRA, J.]

remain operative but the conditions for affiliation will have to be inconformity with the norms and guidelines prescribed by the Council inrespect of the matter entrusted to it under Section 10 of the AICTE/Central Act. The Court further observed that so far as technicalinstitutions are concerned, the norms and the standards and therequirements for their recognition and affiliation which may be laid downby the State Government and the University should not be in conflict andinconsistent with those laid down by the Council under the Central Act.

23. In Adhiyaman Educational & Research Institute case(supra), the power of the State Government to grant permission to starta technical institute that is an Engineering College in the State of TamilNadu came up for consideration. College was functioning and a reportwas received from the Director of Technical Education after inspectionregarding lack of infrastructural facilities. The High Power Committeein its report stated that conditions imposed by the Government were notfulfilled. The Director, Technical Education issued a show cause noticeasking the College to explain why the permission granted by theGovernment to start the college should not be withdrawn. The HighPower Committee also resolved to reject the request of the Trust regardingprovisional affiliation for 1989-90. Questioning the same a writ petitionwas filed. It was held that the State Government had no power tocancel the permission granted to the Trust to start the College. It wasrequired to be canceled under the AICTE Act. It was observed thatduty was imposed on the Council for recognizing or de-recognizing anytechnical institution in the country.

24. In Adhiyaman Educational & Research Institute case(supra), question arose as to the power of the State Government and theUniversity respectively to de-recognize and disaffiliate an EngineeringCollege. Considering Entry 66 of List I and Entry 25 of List III, thisCourt observed that coordination and determination of standards ininstitutions for higher education or research and scientific and technicalinstitutions has always remained the special preserve of Parliament.Considering the constitution of Council under the AICTE Act, it was arepresentative body of various States and Union Territories and theCouncil functions are enjoined under Section 10 of the AICTE Act. ThisCourt opined that Council has been established to promote the qualitativeimprovement of education in relation to planned quantitative growth.Norms and standards are set by the Council so as to prevent lopsided or AB

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122 SUPREME COURT REPORTS [2018] 14 S.C.R.

Aan isolated development of technical education in the country.Unnecessarily high norms or standards, say for admission to the technicalinstitution or to pass the examination may not only deprive a vast majorityof the people the benefit of the education and the qualification but wouldalso result in concentrating technical education in the hands of the affluentand elite group and ultimately result in depriving the country of a largeBnumber of otherwise deserving technical personnel. This Court hasconsidered the provisions of the State Act and the provisions of theCentral Act in various areas and in particular allocation and disbursal ofgrants. This Court observed:

“27. The provisions of the State Act enumerated above show thatCif it is made applicable to the technical institutions, it will overlapand will be in conflict with the provisions of the Central Act invarious areas and, in particular, in the matter of allocation anddisbursal of grants, formulation of schemes for initial and in-servicetraining of teachers and continuing education of teachers, layingDdown norms and standards for courses, physical and institutionalfacilities, staff pattern, staff qualifications, quality instructionassessment and examinations, fixing norms and guidelines forcharging tuition and other fees, granting approval for starting newtechnical institutions and for introduction of new courses orprogrammes, taking steps to prevent commercialisation of technicalEeducation, inspection of technical institutions, withholding ordiscontinuing grants in respect of courses and taking such othersteps as may be necessary for ensuring the compliance of thedirections of the Council, declaring technical institutions at variouslevels and types fit to receive grants, the Constitution of the Council and its executive Committee and the Regional Committees to carryout the functions under the Central Act, the compliance by theCouncil of the directions issued by the Central Government onquestions of policy etc. which matters are covered by the CentralAct. What is further, the primary object of the Central Act, asdiscussed earlier, is to provide for the establishment of an All IndiaCouncil for Technical Education with a view, among others, toplan and coordinate the development of technical education systemthroughout the country and to promote the qualitative improvementof such education and to regulate and properly maintain the normsand standards in the technical education system which is a subjectwithin the exclusive legislative field of the Central Government as F

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JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAMLAXMI BAI VIDYAPEET [ARUN MISHRA, J.]

is clear from Entry 66 of the Union List in the Seventh Schedule.All the other provisions of the Act have been made in furtheranceof the said objectives. They can also be deemed to have beenenacted under Entry 25 of List III. This being so the provisions ofthe State Act which impinge upon the provisions of the CentralAct are void and, therefore, unenforceable. It is for these reasonsthat the appointment of the High-Power Committee by the StateGovernment to inspect the respondent-Trust was void as has beenrightly held by the High Court.”

The Court has observed that the State Act which impinges uponthe provisions of the Central Act has to be held to be void. In the case,the issue was of derecognition. The power of the recognition of institutionis squarely reserved under the Central Act i.e., AICTE Act. Thus, itwould have power to derecognition also and for the purpose, the procedurehas been given in the AICTE Act. Thus, in Adhiyaman Educational &Research Institute, the factual situation was totally different. In thatcontext, the discussion has been made about the provisions of Section10 and the provisions of the State Act of Tamil Nadu. The provisions inState Act of 1982 are not repugnant to AICTE Act. The vires ofprovisions and validity of Act of 1982 has not been questioned andotherwise, also there is no room to accept the submission that theprovisions of Section 20 of the Act, 1982 are inoperative.

25. In Jaya Gokul Education Trust v. Commissioner &Secretary to Government of Higher Education Department,Thiruvananthapuram, Kerala, (2000) 5 SCC 231, relied on by therespondents, question arose for consideration whether under Clause 9(7)of the Kerala University First Statute, which provided that Syndicatehas the right to decide about the affiliation to be granted or not afterconsidering the views of the Government. The provisions .which cameup for consideration have been referred to :

“20. The only provision relied on before us by the State Governmentwhich according to its learned senior counsel, amounted to asalutary requirement of ‘approval’ of the State Government, wasthe one contained in Clause 9(7) of the Kerala University FirstStatute. It reads as follows:

(9) Grant of affiliation: - (1)-(6)...

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A(7) After considering the report of the Commission and the reportof the local inquiry, if any, and after making such further inquiryas it may deem necessary, the Syndicate shall decide, afterascertaining the view of the Government also, whether theaffiliation be granted or refused,either in whole or part. In caseaffiliation is granted, the fact shall be reported to the Senate at itsBnext meeting:

It will be noticed that Clause 9(7) of the statute required thatbefore the University took a decision on “affiliation”, it had toascertain the “views “ of the State Government.”

(emphasis supplied)

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As the provisions of Clause 9(7) of the Statute merely requiredthe University to obtain the views of the State Government, that couldnot be characterized as requiring the approval of the State Government.This Court also opined that the question of affiliation was a differentDmatter and was not covered by the Central Act. On considering theprovisions under Clause 9(7) of Kerala University First Statute, this Courtheld that there was no statutory requirement for obtaining the approvalof the State Government even if there was one, it would be repugnant tothe AICTE Act. The decision is based on the provisions of Clause 9(7).

E26. The provisions contained in Section 20 of the Act of 1982involved in the instant case are different and its validity vis-à-vis to AICTEAct has already been upheld by this Court. Apart from that, it has notbeen pointed out that in the exercise of powers under Section 10 ofCentral Act, norms have been fixed by the AICTE as to how manycolleges should function at a particular city/place. Definitely the StateFGovernment and the University, in the absence of any such norms/ruleshaving been framed by the AICTE can always have their say as perapplicable statutory provisions or policy. In the instant case, Section 20of Act of 1982, enables Universities to grant no objection certificateafter considering the local requirement and as no guidelines in this regardGhave been framed by the AICTE, it cannot be said to be an exercise ofpower against the norms fixed by AICTE. Consequently, no repugnancyarises. The mushroom growth of the institutions cannot be permitted,was rightly pointed out in the perspective plan. A large number ofinstitutions have already been permitted to function in the State by theCentral Bodies. It is painful to note that at several places mushroom H

growth of the institutions had been permitted by such bodies in an illegalmanner. In case there is no check or balance and the power is exercisedin an unbridled reckless manner, the sufferer is going to be the standardof education. At the same time, there is a necessity of good institutionswith new technology, but at the same time mushroom growth of thesubstandard institutions cannot be permitted. There has to be arequirement of educational institutions in the locality and that is one ofthe main considerations.

27. The counsel appearing for the respondents were not able topoint out any of the provisions in the AICTE Act and rules for adjudgingrequirement of the locality have been framed by the Council. In theabsence of guidelines or norms framed to check the mushroom growthof the institutions, the university cannot be deprived of considering thesaid aspect. The State Government had also sent a communication toAICTE regarding the alarming increase in the number of technicaleducational institutions in the area in question and imbalanced growth.The decision of State has been taken in an objective manner and thesame is based on the consideration of data and could not be said to beirrational or arbitrary in any manner whatsoever. The policy decision ofthe State Government cannot be said to be illegal and on that basis, theUniversity has taken the decision in terms of Section 20 of the Act of1982.

28. In State of Maharashtra v. Sant Dnyaneshwar ShikshanShastra Mahavidyalaya, (2006) 9 SCC 1, question arose forconsideration as to the power of the Government of Maharashtra as itrefused to issue no objection certificate for starting new BEd college forthe academic year 2005-06 in view of the provisions of National Councilfor Teacher Education Act (NCTE Act). Though the permission wasgranted by the Council under Section 14 of the NCTE Act to start thecollege. This Court held that university was bound to implement a decisionof the NCTE Act and grant affiliation in accordance therewith irrespectiveof the bar under Section 83 of the Maharashtra Universities Act, 1994.This Court also observed that it does not imply that under Sections 82and 83 of the Maharashtra Universities Act, 1994 were null and void.They would not apply to the case but in other appropriate courses. ThisCourt observed that:

“61. Interpreting the statutory provisions, this Court held that byenacting Section 10A, Parliament had made “a complete and A

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Aexhaustive provision covering the entire field for the establishmentof a new medical college in the country”. No further scope is leftfor the operation of the State Legislation in the said field whichwas fully covered by the law made by Parliament. The Court,therefore, held that the proviso to Sub-section (5) of Section 5 ofthe State Act which required prior permission of the StateBGovernment for establishing a medical college was repugnant toSection 10A of the Central Act and to the extent of repugnancy,the State Act would not operate. The Court noted that in the schemethat had been prepared under the Regulations for the establishmentof new medical colleges, one of the conditions for the qualifyingCcriteria laid down was ‘essentiality certificate’ regarding thedesirability and of having the proposed college at the proposedlocation which should be obtained from the State Government.The proviso to Sub-section (5) of Section 5 of the Act, therefore,must be construed only as regards “proposed location”. The‘essentiality certificate’, however, could not be withheld by theDState Government on any ‘policy consideration’ inasmuch as thepolicy and the matter of establishment of new medical collegerested with the Central Government alone.

62. From the above decisions, in our judgment, the law appears tobe very well settled. So far as co-ordination and determination ofEstandards in institutions for higher education or research, scientificand technical institutions are concerned, the subject is exclusivelycovered by Entry 66 of List I of Schedule VII to the Constitutionand State has no power to encroach upon the legislative power ofParliament. It is only when the subject is covered by Entry 25 ofFList III of Schedule VII to the Constitution that there is a concurrentpower of Parliament as well as State Legislatures and appropriateAct can be by the State Legislature subject to limitations andrestrictions under the Constitution.”

29. In Sant Dnyaneshwar Shikshan Shastra MahavidyalayaG(supra) Court further observed that proviso to sub-section 5 of Section 5must be construed with respect to “proposed location”. The essentialitycertificate could not be dealt with by the State Government on any policyconsideration inasmuch as the policy and the matter of establishment ofnew medical college rested with the Central Government alone. In theinstant case, it is mainly with respect to local area i.e., the city of H

Hyderabad which power has been saved by this Court even in theaforesaid dictum.

30. In Thirumuruga Kirupananda Variyar Thavathiru SundaraSwamigal Medical Education & Charitable Trust v. State of TamilNadu, (1996) 3 SCC 15, the provisions of Tamil Nadu Medical UniversityAct, 1987 came up for consideration. The provisions of the Act aredifferent. For the establishment of a Medical College, State EssentialityCertificate and affiliation from University is required. In the instantcase, the matter is about the proposed location and affiliation out of 36Pharmacy colleges in the State of Telangana and 30 are located inHyderabad city alone which are more than adequate in number. Thus,rightly decision has been taken not to start another new course at theproposed location at Hyderabad city. Thus, the said decision is no availto espouse the cause of the respondents.

31. The respondents have also referred to the decision in RungtaEngineering College, Bhilai v. Chhattisgarh Swami VivekanandaTechnical University, (2015) 11 SCC 291, wherein question came upfor consideration with respect to the power of examining authority i.e.,University and State Government, to withdraw provisional affiliation orto decline grant of affiliation. The decision was taken to disapproveprovisional affiliation granted to the college. This Court observed thatthe objections on the basis of which action was taken squarely fall withinthe sweep of one or the other areas which only AICTE has exclusivejurisdiction to deal with. These shortcomings ought to have been broughtto the notice of AICTE to take appropriate action against the college.On facts of the instant case, the decision cannot be applied as it is notthe case of shortcomings.

32. Resultantly, the appeal deserves to be allowed, same is herebyallowed. We quash the impugned judgment and order. No costs.

Divya Pandey

Appeal allowed.

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