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Kongu Engineering College v. The State of Tamil Nadu, rep - Writ Petition No.13090 of 2002 and Writ Petition No. 13296 of 2002  RD-TN 430 (3 July 2002)
In the High Court of Judicature at Madras
The Honourable Mr.Justice R.Jayasimha Babu
The Honourable Mr.Justice E.Padmanabhan
Writ Petition No.13090 of 2002 and Writ Petition No. 13296 of 2002
W.P.No. 13438, 13555, 13976, 13992, 14092, 14146, 14147, 14148
14152, 14182, 14217, 14371, 14440, 14450 14594, 14647, 14740, 14763, 14764,
14797, 14798, 14833, 14834, 14835, 14994, 14999, 15000, 15033, 15270, 15332,
15419, 15585 20396 and 20397 of 2002.
Kongu Engineering College,
represented by its Correspondent
Erode. Petitioner in
15033 of 2002
The Association of Managements
of Private College, represented
by its President Dr.M.Aruchami Petitioner in WP
Coimbatore. No.13296 of 2002
Velammal College of Management
& Computer Studies,
represented by its Director
Dr.S.N.Soundara Rajan, Chennai. Petitioner in
WPs.No.13438 & 15585 of 2002
All India Islamic Foundation,
represented by its Secretary,
P.S.M. Seyed Abdul Khadir,
Crescent Engineering College,
Vandalur, Chennai. Petitioner in WP
No.13555 of 2002
Jaisakthi Educational Trust,
represented by its
Chennai. Petitioner in WP
No.13976 of 2002
Sapthagiri Educational Trust,
represented by its
Secretary M.Vasu, Chennai. Petitioner in WP
No.13992 of 2002
The Muslim Educational Asscn.
of Southern India,
represented by its
S.C.M.Jamaldeen, Chenani. Petitioner in WP
No.14092 of 2002
Jeeva Educational Trust,
represented by its
Founder & Chairman E.V.Velu,
Chennai. Petitioner in WP
No.14146 of 2002
Sri Swaminathanaidu Educational
Trust, represented by Founder
& Managing Trustee R.S.Munirathinam
Chennai. Petitioner in WP
No.14147 of 2002
Educational Trust, represented
by its Chair Person
Manjula Muniratnam, Chennai. Petitioner in WP
No.14148 of 2002
Trust, represented by its
Thiruvannamalai. Petitioner in WP
No.14152 of 2002
Thiagarajar School of Management,
represented by its Director
Pamban Swamy Nagar, Madurai. Petitioner in WP
No.14217 of 2002
Maharaja Engineering College,
represented by its
Coimbatore. Petitioner in WP
No.14182 of 2002
Jeppiaar Educational Trust,
represented by its
Secretary & Correspondent,
Chennai. Petitioner in WP
No.14371 of 2002
P.K.R. Arts College for Women,
represented by its Secretary
Gobichettipalayam, Erode Dist. Petitioner in WP.
No.14440 of 2002
Kongu Arts & Science College,
represented by its Correspondent,
Nanjapuram, Erode. Petitioner in WP
No.14450 of 2002
Sri Venkateswara Educational
& Health Trust, represented
by its Secretary A.Krishnan,
Chennai. Petitioner in WP
No.14594 of 2002
of Engineering & Technology,
represented by its Correspondent
Kovaipudur, Coimbatore. Petitioner in WP
No.14647 of 2002
Kumaraguru College of Technology,
represented by its Chairman
Dr.N.Mahalingam, Pollachi. Petitioner in WP
No.14740 of 2002
P.S.G. College of Arts & Science,
represented by it's Secretary,
Peelamedu, Coimbatore. Petitioner in WP
No.14763 of 2002
P.S.G. College of Technology,
represented by the Chairman
of its Governing Council,
Peelamedu, Coimbatore. Petitioner in WP
No.14764 of 2002
Mohamed Sathak Trust,
represented by its Chairman,
Dr.S.M.Hamid Abdul Quader,
Chennai. Petitioner in
14798 of 2002
Dr.MGR Engineering College,
sponsored by M/s.Kannammal
Educational Trust. Petitioner in WP
No.14833 of 2002
Poomanam Institute of Management
Studies and Computer Application
sponsored by Ganesh Charitable
Trust, represented by its
Director S.Ganesan, Chennai. Petitioner in WP
No.14834 of 2002
S.N.R. Sons Charitable Trust,
represented by S.Chandran,
Chief Executive, Coimbatore. Petitioner in WP
No.14835 of 2002
K.L.N.Sourashtra College of
represented by its
Madurai. Petitioner in WP
No.14994 of 2002
Sri Muthukumaran Educational
Trust, represented by its
Chennai 78. Petitioner in WP
No.14999 of 2002
Meenakshi Ammal Educational
Trust, represented by its
Chennai. Petitioner in WP
No.15000 of 2002
Vel's College of Science,
represented by its Chairman
Ishari Ganesh, Chennai. Petitioner in WP
No.15270 of 2002
Angammal Educational Trust,
represented by its Secretary,
Tiruchengodu, Namakkal Dist. Petitioner in WP
No.15332 of 2002
represented by its Chairman
T.R.Pachamuthu, Chennai. Petitioner in WP
No.15419 of 2002
R.Harsh Petitioner in WP
No.20396 of 2002
Milan Lee Mathew Petitioner in WP
No.20397 of 2002
The State of Tamil Nadu, rep. Sole Respondent in
by Secretary to Government, WPs.No.13976, 14371,
Higher Education Department, 14450, 14740, 14999,
Fort St. George, 15000, 15033, 15332,
Chennai 9. 15419 of 2002;
Respondent 1 in WPs
13438, 13555, 13992,
14092, 14146, 14147,
14148, 14152, 14182,
14217, 14440, 14594,
14647, 14763, 14764,
14797, 14798, 14833
to 14835, 14994,
15270, 15585, 20396,
20397 of 2002; &
Tamil Nadu Engineering Admission
Anna University, Chennai 600 025. Respondent 2 in WP
No.15270 of 2002 &
Respondent 4 in WP
No.14594 of 2002
The Director of Technical Education,
Government of Tamil Nadu,
Guidy, Chennai. Respondent 2 in WPs
13438, 13555, 13992,
14092, 14146, 14147,
14148, 14152, 14182,
14217, 14440, 14594,
14647, 14763, 14764,
14797, 14798, 14833
to 14835, 14994,5585,
of 2002; &
Respondent 3 in WP.
No.15270 of 2002
The All India Council for Technical
Education, represented by its
Advisor (E & T), I.P. Estate,
New Delhi. Respondent 3 in WPs.
20396, 20397 of 2002
Respondent 4 in WPs.
Respondent 5 in WPs.
No.14217, 14833 to
14835 of 2002
The All India Council for Technical
Education, Southern Regional Office,
Sashtri Bhavan, 26 Haddows Road,
Nungampakkam, Chennai 6. Respondent 6 in WP.
No.14217 of 2002
The Anna University,
represented by its Registrar,
Guindy, Chennai. Respondent 3 in WPs.
14092, 14147, 14148,
14152, 14217, 14797,
14798, 14833 to
14835, 14994 of 2002
Respondent 4 in WPs.
20396, 20397 of 2002
Velammal College of Management
and Computer Studies, rep.
by its Director,
Ambattur - Red Hills Road,
Chennai 600 066. Respondent 5 in WPs.
No.20396 and 20397 of 2002
The Director of Collegiate Education,
Tamil Nadu Text Book Society Bldng.,
College Road, Chennai 600 006. Respondent 3 in WP.
No.13296 of 2002
Co-ordination Committee for
Common entrance examination
for admission into MCA and
MBA courses, Anna University,
Chennai 600 025. Respondent 4 in WP
14797, 14833 to
14835, 14994 of 2002
Respondent 5 in WP.14798 of 2002
University of Madras,
represented by its Registrar,
Chennai 600 005. Respondent 4 in WP
No.14798 of 2002
Writ Petitions filed under Article 226 of the Constitution of India
praying for the issue of writ of certiorarified mandamus to call for the
records comprised in G.O. Ms.No.108 Higher Education (11) Department on the
file of the first respondent dated 09.04.2002 and the advertisement followed
and to quash the same and consequently forbear the respondents from adopting
the single window system of admission for MBA and MCA courses to the
petitioners colleges. Writ petition No.14 092 of 2002 is filed with the
prayer that the said G.O. is inapplicable to minority institutions. Writ
Petition No.15270 of 2002 is filed seeking to quash also the letter of the
Secretary of Tamil Nadu Engineering Admission Co-ordination committee in
letter No.300/EA4/2 002 besides the prayer to quash the G.O.NO.1 08. Writ
Petition No.155 85 of 2002 is filed for the issue of writ of certiorari to
call for the records of the respondents relating to the order in G.O.
Ms.No.112 Higher Education dated 18.04.2002 and quash the same so far it
relates to the petitioner.
For petitioners in
WPs.No.14146 to 14148
and 14152 of 2002 : Mr.Rajeev Dhawan, Senior Counsel for
For petitioners in
WPs. No.13090, 13555, 13976 14371, 14450, 14740, 15033 of 2002 :
Mr.R.Krishnamoorthy, Senior Counsel for Mr.V.Ayyathurai
For petitioner in WPs. No.14833 to 14835/2002 : Mr.Mohan Parasaran,
Senior Counsel for
For petitioner in WP. No.13296 of 2002 : Mr.P.Haridoss,
Senior Counsel for Mr.K.Shakespear
For petitioners in WPs. No.13438, 14797 & : Mr.K.Doraiswami,
14798, 15585 of 2002 Senior Counsel for
For petitioner in WPs. No.13992, 20396 and 20397 of 2002 :
For petitioner in WP. No.14092 of 2002 : Mr.Habibulla Basha,
Senior Counsel for
Mr.K.Ilias Ali For petitioner in WP. No.14217 of 2002 :
For petitioner in WP. No.14182 of 2002 : Mr.V.Sanjeevi
For petitioner in WP. No.14440 of 2002 : Mr.Paul
For petitioner in WP. No.14594 of 2002 : Mr.R.Natarajan
For petitioner in WP. No.14647 of 2002 : Mr.S.Kadarkarai
For petitioner in WPs. No.14763 and 14764 of 2002 :
For petitioner in WP.No.15270 of 2002 : Mr.A.Jinasenan
For petitioner in WP.No.14994 of 2002 : Mr.B.R.Ramesh Bapu
For petitioner in WPs. No.14999, 15000, 15332 & 15419 of 2002
For Respondent in : Mr.N.R.Chandran
WPs.No.13976, 14371, 14450, Advocate General
14740, 14999, 15000, 15033, assisted by Special Government Pleader ( E)
15332,15419/2002 Mr. V.Rajasekaran
For Respondents 1 and 2 in WPs.No. 13090, 13438,13555, 13992, 14092, 14146
to 14148, 14152, 14182, 14217, 14440,14594, 14647, 14763, 14764,
14797, 14798, 14833 to 14835, 14994,15585,20396 & 20397/2002
For Respondents 1 to 3
in WP.No.13296 of 2002 : Mr.N.R.Chandran
assisted by Special Government Pleader ( E)
Respondents 1 & 3 in
WP. No.15270 of 2002 :
For Respondent 4 in WPs. No.13296, 13992, 20396 & 20397 of 2002;
For Respondents 3 an 4 in WPs.No.13438, 14217, 14594, 14797, 14833 to
14835, 14994 of 2002;
For Respondent 3 in WPs. No.14092, 14146 to 14148, 14152
For Respondents 3 & 5 in WP.No.14798 of 2002; :
Mr.G.Masilamani, For Respondent 2 in Senior Counsel
WP.No.15270 of 2002
For Respondent 3 in WPs.No.13992, 20396 & 20397 of 2002; For
Respondent 4 in WPs.14092, 15270/2002; For Respondents 5 & 6 in WP.
No.14217 of 2002; For Respondent 5 in WPs.14833 to 14835/2002 :
Mr.R.Santhanam, Senior Central
Government Standing Counsel
For Respondent 4 in WP No.14798 of 2002 : Standing
Counsel for University of
For Respondent 5 in Wps.20396 & 20397/2002 :
Mr.K.Doraiswami, Senior Counsel
for M/s.Muthumani Doraiswami
R.Jayasimha Babu, J.
Self-financing technical institutions, as also self-financing Arts and Science colleges offering Master of Business Administration ( MBA) and Master of Computer Application (MCA) courses with the approval of All India Council for Technical Education (AICTE) such approval having been granted under the All India Council for Technical Education Act 1987, (Central Act No.52 of 1987) (Act) and who are affiliated to one or the other of six Universities University of Madras, Anna University, Madurai Kamaraj University, Periyar University, Bharathiar University, and Bharathidasan University, have in these writ petitions questioned the legality and reasonableness of two Tamil Nadu Government Orders in G.O. Ms. No.108 (Higher Education (J1) Department) dated 09.04.2002 and G.O. Ms.No.112 (Higher Education (J1) Department) dated 18.04.2002.
2. The Government Order No.108 dated 09.04.2002 sets out that the Government had been informed by the Director of Technical Education ( DTE) that the candidates desirous of pursuing the MBA and MCA courses will have to apply to each institution separately and consequently end up spending huge amounts for the application forms; that the institutions in the State offering these courses are affiliated to different Universities adopting different syllabi; that it is desirable to conduct a common entrance examination; and that task may be entrusted to the Anna University. The order proceeds to direct that `the single window system of admission be followed for admission of students to MBA and MCA courses in Government, Government aided, and self financing Engineering and Arts and Science colleges from this academic year 2002-03'. That order also directs that the Co-ordination Committee constituted for Engineering admissions be directed to co-ordinate and allot candidates through counselling for MBA and MCA.
3. The Government Order No.112 dated 18.04.2002 sets out that, consequent to the issue of G.O. Ms.No.108 dated 09.04.2002, the DTE had proposed a fee structure which the Government had accepted, and which fee structure would be in force till the Committee constituted by the Government under G.O. Ms. No.1 09 dated 09.04.2002 recommends a suitable fee structure for the MBA and MCA. That order also states that NRI and minority quota seats for MBA and MCA be fixed as in the case of Undergraduate Engineering courses and fees for NRIs be fixed as for payment category together with Development charges of 1000 US Dollars.
4. The fee fixed under that order for 'free seats' in the MBA course which course is of two year duration is Rs.12,000/- per year plus a development charge of Rs.5,000/-, and for 'payment seats' Rs.48,000 /- per year plus development charges of Rs.10,000/-. For the MCA course, which is a three year course, the fee for the 'free seats' is Rs.10,000/- per year plus development charge of Rs.5,000/-, and for 'payment seats' Rs.40,0 00/- plus development charge of Rss.10,000/-.
5. There is wide variation in the scale of fee that is being presently charged by these self financing institutions for these two courses. Fee for the MCA course ranges from a low of Rs.2,130/- per year to Rs.1,00,000/- per year. The average of the fees charged for the MCA course in sixty six institutions in respect of which data had been furnished by the petitioners is Rs.25,533/- per semester, the fee per year being Rs.51,065/-, and for the course Rs.1,53,195/-.
6. The fee now being charged in these institutions for the MBA course ranges from Rs.15,000/- per year to Rs.75,000/- per year. The fee for the course thus ranges from Rs.30,000/- to Rs.1.50 lakh.
7. The number of institutions in this State offering AICTE approved courses is 127 for the MBA course and 189 for the MCA course. These figures are from the AICTE for the academic year 2001-02. The total number of seats, in these institutions for MBA is 8180 full time and part time and 1200 in Distance Education, and for the MCA 9705. For the academic year 200 2-03 540 more seats appear to have been added for the MBA and 1000 more seats for the MCA.
8. The number of institutions offering MBA course in the country as a whole for the academic year 2002-03, according to the data furnished by AICTE, is 819 and the total number of seats, 65,102. The number of institutions in the country offering MCA course is 865 and number of seats is 40,792.
9. There is no uniformity among the States and Union Territories with regard to conduct of a common entrance test and the regulation of fees for these courses. While in some States such a test is held, in many States it is not held. The tabulation furnished by the AICTE shows that common entrance tests are held in 12 States/Union Territories for MCA and for MBA in 14 States/Union Territories.
10. The Government of Tamil Nadu has asserted a right to introduce a single window system, hold a common entrance test, and fix the ceiling on fee to be charged for these courses for the first time by issuing the impugned orders. For the MBA 6518 applicants and for the MCA 7793 applicants have applied for the common entrance test. The seats available for these courses in the State exceed the number of applicants for the common test.
11. Though AICTE has not so far held an all India entrance test, at the instance of the Central Government it is currently examining the feasibility of holding an all India Entrance test from the academic year 2003-04.
12. Norms and Standards to be observed by the institutions offering these courses have been fixed by AICTE in exercise of it's powers under Section 10(j) of the AICTE Act. The entry qualification prescribed by it for entry into a post graduate programme in Management is any bachelor's degree recognised by Association of Indian Universities. The selection of candidates is required to be done on the following basis: (a) An All India Written Admission Test to assess applicants attitude and preparedness as given in Annexure I. (b) Previous Academic Records/Work Experience, and (c) Performance in group discussion and interview. Note : 1.Scores obtained in the All India Written test would have a minimum weightage of 50. 2.Universities may have their own admission test for the institutions affiliated. 3.If admission is not done on the basis of All India Written Test, it is essential to stipulate minimum requirement of 50 aggregate marks in the qualifying bachelors degree if the screening is done at the local/state/ regional level.
13.Annexure I referred to in (a) above reads as under: 1.All management schools should advertise their programmes in local and national dailies the notice for admission. 2.All management institutions shall supply the applicants with an information brochure about the institute and the programme, which must provide accurate, clear and authentic facts. The brochure should have precise information about the fee structure and other charges, faculty, infrastructure, and academic activities. No management institute will be allowed to receive the charge in any form which are not mentioned in the brochure. 3. The selection process can be divided into two parts: (i)Written test (ii) Group discussion/Interview
3.1 Written test in general should measure career aptitude, language, mastery and business awareness of the applicants. A written test should be conducted with utmost care and the whole process must be documented by a Management school. All the schools should subscribe to All India Tests such as MAT (Management Aptitude Test) being conducted by Indian Institutes of Management etc. 3.2 Candidates who have been screened through the written test should be called for interview and group discussions. The purpose of the interview, in general should be to measure aptitude, subject knowledge, business awareness, communication and problem solving ability. However these aspects are only suggestive. Interview should be made as objective as possible. There should be two to three interviewers in an interview board. The group discussion generally aims at measuring communication ability, social behaviour, leadership, persuasiveness etc., of the candidates. 3.3 Work experience should also be given adequate weightage in the selection process. 3.4 Management schools should have freedom to decide class composition in terms of applicants academic background so that the class has balanced composition. 4. The whole admission process should be documented and all relevant information should be preserved atleast for two years by a managment school. The admission process, as a principle, should be kept as transparent as possible."
14. Admission Qualifications and Selection Procedure prescribed by AICTE for the MCA course as set out in it's publication 'Norms and Standards', is as under:
"4.0 Admission Qualifications Since almost all sectors of industry, commerce, administration are in need of professionals for their computerisation programme the MCA programme which is targeted to some managerial functions has to necessarily be designed in such a manner that candidates with minimum mathematical background upto 10+2 level and first degrees in any of the disciplines may be able to benefit from this programme. The minimum qualifications for MCA programme is prescribed as a bachelor's degree of minimum three years duration in any discipline but with mathematics knowledge of 10+2 level."
5.0 Selection Procedure "The admission of the candidate to various programmes in computer science, engineering and application should be determined through merit and an admission test should be conducted by State Government/ Autonomous institution/universities. The admission test for computer programme should test candidates for mathematical ability and logical reasoning. In the admission for MCA programme, the mathematical component should be of the level of 10 +2 examination and components of logical reasoning at the level of Bachelor's degree examination. The selection to MCA course should be on All India basis as per AICTE norms for admission."
15. These two courses, as stated in the affidavit of the Director of the Southern Regional Office of the AICTE "...are totally different post graduate degree programmes and separate norms were fixed by the AICTE. The duration of the course, curricula, and the entry qualification of the candidate are totally different for both the MBA and the MCA programmes."
16. Approval of the AICTE for these courses, whether run by Engineering colleges or management institutions or Arts & Science Colleges was being granted by the AICTE under the AICTE (Grant of approval for starting new technical institutions, introduction of courses or programmes, and approval of intake capacity for seats for the courses or programmes) Regulations,1994 framed by the AICTE under Section 23(1) of the Act till that Regulation was amended in 1997 and these courses and all postgraduate engineering courses were excluded from the scope of the Regulations.
17. The AICTE Act, 1987 was enacted to provide for the establishment of AICTE with a view to proper planning and co-ordinated development of the technical education system throughout the country, promotion of qualitative improvement of such education in relation to planned quantitative growth, the regulation and proper maintenance of norms and standards in the technical education system, and for matters connected therewith. The Act came into force with effect from 28.03.1988. The Council constituted under the Act consists of 51 members of whom eight are nominees of the State Government/Union Territories. 'Technical Education' is defined in Section 2(g) as meaning " programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette declare." 'University' is defined in Section 2(i) as "a University defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 (3 of 1956), and includes an institution deemed to be University under Section 3 of that Act." 'Technical Education' is defined in Section 2(h) as "an institution, not being a University, which offers courses or programmes of technical education and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions."
18. Section 10 of the AICTE Act sets out the functions of the Council constituted under the Act. Section 10(1) empowers the Council to take "all steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards." As provided in Section 10 for the purpose of performing it's functions under the Act, the Council may, inter alia, (a) ............... (b) co-ordinate the development of technical education in the country at all levels. (c) ............... (d) ............... (e) ............... (f) ............... (g) evolve suitable performance appraisal system for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability. (h) ................ (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 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. (l) ................ (m) ................ (n) take all necessary steps to prevent commercialisation of technical education. (o) provide guidelines for admission of students to technical institutions and Universities imparting technical education. (p) ................ (q) ................ (r) ................ (s) ................ (t) ................ (u) set up a National 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) .................. (emphasis supplied)
19. Section 13 of the AICTE Act deals with the Boards of studies. The Council is required to establish five Boards of Studies, namely, All India Board of Vocational Education; All India Board of Technical Education; All India Board of Under-graduate Studies in Engineering and Technology; All India Board of Post-graduate Education and Research in Engineering and Technology; and All India Board of management studies. The Council may establish other Boards of studies if it chooses to do so.
20. Section 14 provides for Regional Committees for North, South, East and West. Under Section 14(3) the regional committees are required to advise and assist the Council to look into all aspects of planning, promoting and regulating technical education within the region. Section 18 of the Act requires the Council to submit an annual report to the Central Government which shall be laid before both Houses of Parliament.
21. Section 20 provides that, "The Council shall in the discharge of it's functions and duties under the Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time." Subsection (2) to Section 20 provides that the decision of the Central Government as to whether the question is one of policy or not, shall be final. Section 21 empowers the Central Government to supersede the Council in certain circumstances including failure to comply with the directions issued to the Council under Section 20.
22. Section 22 empowers the Central Government to make rules by notification in the official gazette to carry out the purposes of the Act. Section 23 confers power on the Council to make regulations not inconsistent with the Act or the Rules generally to carry out the purposes of the Act. The Regulations are required to be notified in the official gazette. Rules and regulations framed under the Act are, by Section 24 of the Act, required to be placed before Parliament.
23. The Act provides for separate Boards of Studies for postgraduate education in Engineering and Technology. MCA course would fall within it's purview. The Board of Management Studies covers undergraduate as well as postgraduate studies in Management. MBA course falls within the purview of that Board. MCA is not a course in Management.
24. Though the Council is vested with the power to frame regulations covering, inter alia, the matters covered by Section 23(2)(a) to ( e) of the AICTE Act, it does not mandate that the Council should discharge it's functions under Section 10 of the AICTE Act only by framing Regulations under Section 23. When it is intended that the power given to the Council should be exercised only by way of Regulations, it has been explicitly so stated, as in Section 14(4) which requires that the constitution and functions of the Regional Councils as also the regions for which they may be established 'shall be prescribed by regulations'.
25. The functions of the Council extend to laying down norms and standards for courses providing for admission of students, and fixing norms and guidelines for charging tuition and other fees vide Section 10(1 )(i), (j) and (o) of the AICTE Act.
26. While, laying down norms and guidelines, clearly falls within the scope of Entry 66 of List I of Schedule VII to the Constitution, and thus within the exclusive legislative competence of Parliament, laying down norms and guidelines for charging tuition fees would fall within Entry 25 of List III of the same Schedule, as fee fixation cannot be regarded as part of the standard setting for higher education. Admissions also would substantially fall outside Entry 66 of List I and fall within Entry 25 of List III except to the extent the norms of admission have a direct impact on standards of education. The Supreme Court in the case of Preeti Srivastav vs. State of M.P., 1997(7) SCC 120 at paragraph 36 has, inter alia, observed that, "It would not be correct to say that the norms for admission have no connection with the standards of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education."
27. Education as a field of legislation is enumerated in Entries 63 to 66 of List I and Entry 25 of List III of Schedule VII to the Constitution. By the 42nd amendment to the Constitution Entry 11 in List II was deleted, and that field made part of Entry 25 of list III. The power of Parliament to enact law in the field of education is vast and can cover any and every aspect or area of education. In respect of matters falling within Entries 6 3 to 66 of List I the power is exclusive subject to the limited exceptions recognised by the apex Court, while in respect of matters falling within Entry 2 5 of List III the Union's power when exercised, has primacy.
28. The power of the State to enact law or exercise executive power in the field covered by Entry 25 of List III is generally limited to the area left uncovered by Union law. Any legislation or executive action of the States in this field has to be consistent with Union law. In the event of there being repugnancy between the Central law and that of the State, the repugnant State law can prevail in that State over the Central law only if the State law had been reserved for the consideration of the President and had received his assent, as provided in Article 254 of the Constitution. However, such a repugnant State law enacted with the previous assent of the President will prevail only till Parliament enacts a law in the same field.
29. The AICTE Act, as held by the the Supreme Court in the case of State of Tamil Nadu vs. Adhiaman Educational & Research Institute, 19 95(4) SCC 104, at paragraph 27 of the judgment, "....can also be deemed to have been enacted under Entry 25 of List III". Admissions to, as also fees chargeable for courses falling within the scope of ' technical education' as defined in Section 2(g) of the AICTE Act, are clearly matters with respect to which Parliament has legislated.
30. The State of Tamil Nadu, subsequent to the enactment of the AICTE Act, enacted a law prohibiting the collection of capitation fee in educational institutions, being the Tamil Nadu Educational Institutions ( Prohibition of Collecting of Capitation Fees) Act, 1992 (Tamil Nadu Act 57 of 199 2). That Act had been reserved for the assent of the President, and the Presidential assent was obtained on 27th October 1992.
31. A Constitution Bench of the Supreme Court in the well known case of Unni Krishnan JP vs. State of Andhra Pradesh, AIR 1993 SC 2178 considered a challenge to the validity of this Act as also similar Acts enacted by the States of Andhra Pradesh, Karnataka, and Maharashtra. The Court after approving the legislative policy behind these enactments, and after noticing the provisions of the AICTE Act at paragraph 156, as also of the University Grants Commission Act, and the Indian Medical Council Act, observed at page 2246 of the Report, that, " It is the discretion in the matter of admission that is at the root of the several ills complained of", and proceeded to formulate a scheme "to give effect to the said legislative policy".
32. The scheme formulated in Unni's case made the regulation of admission to self-financing professional colleges an integral part of regulation of fees. The Court, in the concluding part of the scheme framed by it at paragraph 170 stated the rationale for it thus, "The theoretical foundation for our method is that a candidate/ student who is stealing a march over his compatriot on account of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause (2) of this scheme." Clause 2 of that scheme provided that, "At least, 50 of the seats in every professional college shall be filled by the nominees of the Government/University, as the case may be, hereinafter referred to as 'free seats'...The remaining 50 (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed therefor".
33. State Governments were directed, in paragraph 6(a) of the Scheme framed in Unni's case "......to forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges as the case may be." That direction was to be effective only till the statutory bodies under the Central laws acted. In paragraph 6(c) of the Scheme it is provided that, " Until the Central government U.G.C., I.M.C. and A.I.C.T.E. issue orders/regulations in this behalf, the Committee referred to in the subpara (a) of this para shall be operative, In other words, the working and orders of the Committee shall be subject to the orders/regulations, issued by Central Government U.G.C., I. M.C. or A.I.C.T.E., as the case may be." State Governments were also, under the scheme in Unni's case, named as competent authority competent to allot students to various professional colleges in the State.
34. The scheme framed in Unni's case appears to have been framed for undergraduate professional courses in certain fields, though extendable to other courses, and that was also the submission by all the counsel appearing for parties.
35. The ratio of Unni's case was stated by the Court at paragraph 1 74 of the judgment, "We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort of the State and that what applies to the main activity applies equally to the supplemental activity as well."
36. Though the apex Court in the case of Unni observed that, "It would be highly desirable if this scheme is given a statutory shape by incorporating it in rules that may be framed under these enactments", 'these enactments' being the State enactments including Tamil Nadu Act 57 of 1992, the State has not so far incorporated that scheme in any statutory Rule.
37. About an year after the apex Court delivered the judgment in the case of Unni, the AICTE in GSR 476(E) after referring to Sections 1 0(o) and (j) as also Section 23 of the Act and in exercise of the powers therein, framed 'All India Council for Technical Education ( norms and guidelines for admission in professional colleges) Regulation 1 994.' Regulation 2 which deals with the application reads thus: "These regulations shall apply to a professional college imparting diploma, degree or equivalent courses in engineering, technology, architecture, town planning, management, pharmacy, electronic, computer science, applied arts and crafts and such other programmes or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare; but shall not apply to Universities, University departments or colleges, government colleges, aided colleges of the Central Government or State Government, Indian Institutes of Technology, Indian Institutes of Management, Regional Engineering Colleges, and such Technical Institutes which are fully funded by the Central Government, a State Government, the Council, or as the case may be, the University Grants Commission and any full or part-time postgraduate courses or programmes in any discipline other than management." 38. The Regulation thus excludes postgraduate courses, whether part time or full time, in all disciplines other than Management. MCA course is clearly not covered by this Regulation, while MBA is. The Regulation incorporates the schem at had been formulated by the apex Court in Unni's case.
39. Regulation 7 deals with fee and provides for fee determination by a State Level Committee. Regulation 7(2) provides that the Council shall constitute a Standing Committee for each State to fix ceiling on the fees chargeable for individual courses by a professional college or class of professional colleges. The constitution of the Committee is also set out. The Committee, by sub-regulation (4) of Regulation 7 is required to give an opportunity to the professional colleges to place relevant materials. The fee is to be fixed once in three years or at longer intervals. The items to be taken note of by the Committee for determining the tuition fee and other fees to be charged by a professional college, is set out in the Annexure to the Regulations.
40. Regulation 8 deals with the procedure for allotment of seats. Regulation 8(1) bars the professional colleges from calling for applications for admission separately or individually and requires the competent authority, namely, the Government or University or any other authority as may be designated by the Government or the University to allot students for admission to professional colleges in a State or Union Territory. Subregulation (4) of Regulation 8 appears to empower the Management institutions to admit students directly after conducting an entrance test including an aptitude test. Regulation 8(4) reads thus: "The admissions to management courses shall be on the basis of an entrance test including aptitude test or interview to be conducted by a professional college or for a group of professional colleges as the professional college or the group of professional colleges may determine."
41. The procedure contemplated in the other parts of Regulation 8 have not been so far been applied to the management courses by the AICTE, and the State of Tamil Nadu and has not so far conducted a common entrance test for any of the management courses, whether undergraduate or postgraduate.
42. Regulation 10 makes a special provision for minority institutions, which are permitted to fill 50 of the free as also the payment seats, from among candidates belonging to the minority community on the basis of merit. Regulation 9 gives freedom to professional colleges to provide for reservation of seats in accordance with the Rules of the Central or State Governments as the case may be.
43. After these Regulations were framed, the AICTE while granting or extending approval for the MBA/MCA courses, incorporated therein the following paragraph: "The admission will be made in accordance with Regulations notified by the AICTE vide GSR 476(E) dated 20.05.1994 based on the Hon'ble Supreme Court Judgments dated 04.02.1993 with regard to WP (C) No.607 of 1992 in the case of Unni Krishnan JP and other etc. vs. State Government of Andhra Pradesh and others, etc. and later judgment. No Management/Institute/Trust or Society shall announce admissions directly under any circumstances. Any action contrary to this provision taken by the Institute will make it liable to be derecognised."
44. The AICTE, we have been informed by it's counsel, has incorporated such a paragraph in all letters of sanction/extension issued to all the undergraduate colleges, and had included the same in the letters of approval/sanction sent to the institutions running MBA and MCA courses as well.
45. The AICTE has placed before the Court, letters of approval issued by it to some of the institutions for the MBA as also the MCA programmes, such letters having been issued after 05.07.2001 in which approval is given for the course for the academic year 2001-02, "with a specific condition that admission shall be made through the Central Counselling by the Government of Tamil Nadu only." It also states that that approval is valid for the academic year 2001-02 and cannot be extended for the next year 2002-03.
46. Despite those conditions incorporated by AICTE in the letters of approval/extension all of which incidentally are addressed to the Secretary to the Education Department of the State Government with a request to monitor the work of the Institution and only a copy being sent to the concerned institutions, it is admitted by the State as also by AICTE that those conditions have not so far been enforced, the State not having held any Central Counselling for the academic year 2 001-02 or earlier years. At the time of hearing of these writ petitions, letters of extension of approval for the current academic year were said to be in the process of being issued by the AICTE to the petitioners and other institutions to whom the AICTE had given approval for previous academic year.
47. Three years after the scheme was framed by the apex Court in the case of Unni, the apex Court in the case of T.M.A.Pai Foundation vs. State of Karnataka, 1996 (5) SCC 8, observed thus: " We must express our distress at the inaction of the authorities pursuant to para 6 of the Scheme aforementioned. Though a period of more than three years have passed by since the decision in Unni Krishnan, [(1993) 1 SCC 645], the authorities mentioned in the said paragraph have not come forward with a workable, realistic and just fee structure, with the result that year after year, this Court is practically being forced to fix the fee on a tentative basis. Fixing the fees is not the function of this Court. It is the function of the Government, the affiliating universities and the statutory professional bodies like, University Grants Commission, Indian Medical Council and All India Council for Technical Education. At least now, we expect the authorities concerned to move in the matter with promptitude and evolve an appropriate fee structure. While doing so, it is made clear, they shall not feel shackled by the Orders made by this Court from time to time relating to fee structure. It shall be open to them to evolve such fee structure as they think appropriate, in such terms, and subject to such conditions as they feel are in the interests of the student community, the private professional colleges as also in public and national interest. We hope and trust that the fee structure to be evolved by them would take into consideration the ground realities and would be realistic and practical from the point of view of all concerned. In particular, we request the Central Government, including the Ministry of Education (Ministry of Human Resource Development), to take immediate steps to convene a meeting of all the authorities concerned as contemplated by para 6 of the Scheme and ensure that a proper fee structure is evolved for the medical, dental and engineering colleges throughout the country. It shall be open to the authorities to fix separate fee structure for each of the States, if such a course is warranted. It may also be open to the authorities to fix different fee structure having regard to the location of the colleges, to wit, a college in the city of Bombay may be allowed a different level of fees than a similar college (with similar facilities) situated in a rural area. To reiterate, the Central Government and the authorities concerned shall be free to evolve the fee structure in such appropriate manner as they think just and equitable to all concerned. We hope and trust that this would be done within a period of three months from today and the matter brought to the notice of this Court forthwith. We wish to make it clear that with effect from the Academic Year 1997-98, it shall be the responsibility of the authorities aforesaid to prescribe the fee payable in these colleges."
48. In that order it was also noticed by the Court that so far as the modification of the scheme framed in Unni's case is concerned, that may have to be done by a larger Bench. We were informed by counsel that the matter has already been referred to a larger Bench and is pending consideration.
49. Pursuant to the directions given by the apex Court, on August 9 , 1996 in the case of TMA Pai Foundation, the Central Government, according to it's Resolution dated 18th March 1997 which resolution has been published in the gazette of India in F.20-43/96-Desk(U) captioned as 'Resolution', 'Policy on Fee Fixation in Private Unaided Educational Institutions imparting Higher and Technical Education including Management Education', at paragraph 5 has convened a meeting of State Higher and Technical Education Ministers on 10th December 1996 wherein it was decided that self-contained policy directions could be issued applicable to sectors of education, falling within the purview of the Ministry of Human Resource Development, namely Higher and Technical Education. In that paragraph it is stated that, "The meeting noted that while the AICTE had notified its regulations and the UGC was in the process of doing so, uniform policy directions were still needed to be laid down by the Government to cover all aspects of relevance in determining rates of fee." 50. Paragraph 6 of the Policy Resolution sets out that the " President of India is pleased to approve the policy on Fee determination in Private Unaided institutions in the Higher and Technical Education sectors, formulated on the basis of the broad principles arrived at in the meetings of the officials of the State Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu and also endorsed in the meetings of the Ministers of State Governments for Higher and Technical Education. The policy is laid down in succeeding paras:" The policy so laid down in paragraph 6.1 sets out the general principles to be followed in determining a fee structure, which "in order to be fair has to be fair to all concerned, namely the students and their guardians, the management, faculty members and employees."
51. Paragraph 6.2 deals with applicability. The policy guidelines will apply to the three classes mentioned in (a), (b), and (c) referred to therein. Sub-clause (a) refers to "Self financing institutions imparting technical education as defined under the AICTE Act, 1987 (Act 52 of 1987) including institutions imparting postgraduate education in Management whether by awarding degrees or otherwise." Subclause (b) refers to 'Colleges, affiliated to the Universities, operating on 'no grant-in-aid' basis; and sub-clause (c) refers to institutions which are deemed to be Universities.
52. Paragraph 6.3 of the policy resolution titled 'Admissions" reads thus: "In the scheme in Unni Krishnan, the manner and method of admissions form part and parcel of the fee determination procedures. The admission procedure incorporated in that scheme will, therefore, apply to the institutions covered under the present policy. As the UGC Act does not empower the Commission to issue regulations relating to ' Admissions', the judgment in Unni Krishnan and the present Resolution will be construed as enabling the Commission to make suitable provisions relating to admissions in accordance with the scheme in Unni Krishnan."
53. Paragraph 6.4 deals with determination of fee for technical education which fee is to be determined by a State Level Committee consisting of a Vice Chancellor of one of the Universities to be nominated by the State Government concerned as the Chairperson; the Secretaries incharge of the Technical Education and Finance Departments of the State Government concerned or their nominees and three experts, one each in Economics, Cost Accountancy, and Institutional Finance to be nominated the AICTE, as members; and the Director of Technical Education of the State concerned as the Member-Secretary. The composition of the State Level Committee to decide the fee chargeable for the affiliated colleges operating on 'No basis is similar except that the Finance Officer of one of the Universities to be nominated by the State Government is also to be a member of the Committee.
54. The procedure to be adopted by the committee constituted under 6.4 is set out in 6.5 of the policy. Sub-clause (c) of 6.5 provides that, "each Committee will be free to device its own procedure. The procedure will however, compulsorily includ ving opportunity to the institutions concerned to furnish such material as they consider relevant; The Committee will also have power to call for such information and details as it considers relevant. ........" Sub-clause (d) provides that "Fee once determined shall be in force for three years, and that 'the Committee may determine different rates of fee for institutions falling different classes, if a classification is justified on intelligible and objective criteria. In particular the Committees will be free to fix different rates for institutions located in rural areas. 55. Fee determination is dealt with in 6.6. It provides that fee will have two broad categories - Tuition fee and Development fee. The items to be covered by tuition fee are set in 6.6(b). It is also provided therein that keeping those parameters in view, 'suitable rates will be fixed for holders of 'free', 'payment', and 'NRI/Foreign Students' categories.
56. Paragraph 6.6 (e) provides thus: "Development Fee may be at flat rates to be determined every three years by the AICTE and UGC as the case may be. Different rate may be prescribed for 'payment', 'Free/ Merit', and Foreign/NRI' seat holders. These bodies could also classify institutions in different categories for the purposes of prescribing different slabs provided such categorisation is based on intelligible and objective criteria." Paragraph 6.6 (g) which is relevant reads thus: "As the fee chargeable will be notified by the relevant Committee, it will be duty of the Statutory body concerned to communicate the rate of Development Fee to such bodies well in advance to enable the appropriate Committee to suitably incorporate such rates in their Notification. The UGC/AICTE will take into account the views and suggestions of the private institutions, the State Governments and interested members of Public while determining these rates."
57. The method by which the Committee is required to notify the fee is stipulate in 6.8 (a) of the policy which reads thus: "Fee once fixed will be valid for a period of three years. Fee will be payable in advance for a semester. Each Committee will notify for general information the total fee payable per semester in the month of December every year, for the next year, in two News papers having wide circulation in the State concerned. This exercise shall be carried out annually notwithstanding the fact that the rates once fixed will be in force for three years.
58. After stating in Paragraph 7 that the policy be incorporated in Regulations of UGC and AICTE, in paragraph 8 of the policy it is " Resolved further that for the above purposes this resolution be deemed to be instructions issued by the Central Government to the University Grants Commission under sub-section (1) of Section 20 of the UGC Act, 1956 and under sub-section (1) of Section 20 of the AICTE Act, 1987 ."
59. Any direction given by the Central Government on policy matters to the AICTE under Section 20 of the Act is binding on the AICTE. It is common ground of all the parties before us that the policy resolution of the Government binds not only AICTE, but also the petitioner institutions and the State, and that the AICTE is bound to given effect to that policy.
60. AICTE has not so far determined the development fee payable by the students of MBA and MCA courses in the institutions in Tamil Nadu offering such courses. We are informed by the counsel for AICTE that the exercise has not even commenced.
61. The files relating to the impugned orders produced by the learned Advocate General show that the exercise relating to the constitution of a State Level Committee for the purpose of fee fixation for the undergraduate technical courses for the academic year 2002-03 and for the two academic years following, it had commenced on 22.05.2001 with the letter of Director of Technical Education addressed to the Secretary to Government. A photo copy of the Government of India policy resolution dated 18.03.1997 had also been sent to the Secretary along with that letter and the need for publishing the fee structure in the gazette before the end of 2001 had also been made known to the Secretary. The Government, thereafter, took necessary steps and the AICTE by it's letter dated 19.10.2001 issued by it in exercise of it's powers under Regulation 7(2) of 1994 Regulations read with the policy resolution of the Government of India reconstituted the State Level Committee by nominating to that Committee three experts.
62. On 06.02.2002 the Director of Technical Education, after referring to a telephonic conversation with the Minister for Education, had written to the Secretary, Higher Education Department about the advisability of introducing a common entrance test for the MBA and MCA. A final decision thereon was not taken till the day of the issue of the the impugned Government Order on 09.04.2002. The AICTE, however was not asked at that time or subsequently to initiate necessary steps for determining the amount of the development fee that can be charged for the MBA and MCA courses.
63. It was only on 09.04.2002, more than five months after the AICTE had constituted the Committee, the State Government proceeded to constitute a State Level Committee with the composition set out in the AICTE's letter of 19.10.2001. That was done by the Government under G.O. Ms. No.106 dated 09.04.2002. On the same day, i.e. On 09.04.200 2 another G.O. Ms. No.107 was issued, wherein it was stated that that State Level Committee will also look into the fixation of fee for the Government and Government aided institutions imparting technical education. Thereafter, the Director of Technical Education on his own recommended on 13.04.2002 a fee structure for the MCA and MBA, even before the State Level Committee had commenced it's work and without the AICTE having determined the Development Fee. G.O. Ms. No.112 dated 18.04.2002 which is one of the Government orders impugned, came to be issued thereafter reproducing therein the fee recommended by the Director of Technical Education on his own for the MBA and MCA courses.
64. Learned Senior Counsels Shri R.Krishnamurthy, Shri Rajeev Dhawan, Shri Habibullah Badsha, Shri Doraiswami, Shri Mohan Parasaran, and learned advocate Mrs.Saraswathi made the submissions for the petitioners. The principal submissions were very ably made by Shri Rajeev Dhawan, whose arguments were adopted and supplemented by the other counsel. The case for the State was presented by the learned Advocate General Shri N.R.Chandran. The Anna University which is to conduct the common entrance test in the event of the Government Orders being upheld, was represented by Shri G. Masilamani, learned Senior Counsel.
65. Though the arguments covered a wide area and Shri Dhawan has filed before us elaborate written submissions, we consider it sufficient for the purpose of the case to focus our attention on the principal questions which arise for determination in the light of the stand taken by the State that the State has executive power to act independently of the AICTE and conduct a common entrance test as also fix the fees for these courses, and in the alternative, the State has the power to conduct the test and fix the ceiling on fees under the policy Resolution of the Government of India of 18th March, 1997 which makes the admission scheme set out in the case of Unni Krishnan applicable to all institutions offering technical courses approved by the AICTE. The faint plea of the State that the scheme framed in Unni's case by itself is a source of power to the State was not seriously pursued.
66. The principal questions which require our consideration are: first, as to whether the State can act independently of the AICTE and hold the common entrance test for AICTE approved MBA and MCA seats in the State and proceed to regulate the fees for these courses in exercise of it's executive powers under Article 162 of the Constitution of India, and if not whether the Policy resolution of the Central Government dated 18th March 1997 confers such a power on the State Government; second, as to whether the fee fixation and conduct of the entrance test form integral parts of the single window scheme and if so, whether the holding of the common entrance test without complying with the requirements of the policy resolution with regard to the time, method, and manner of fixation of the fees, is permissible in law; third, as to whether the petitioners have a fundamental right under Article 19 (1)(g) of the Constitution to run self-financing institutions and if such a right exists, whether the impugned State action has direct impact on that right, and if so is not sustainable by reason of Article 19(6); fourth, as to whether the impugned orders are unsustainable by reason of relevant factors having been ignored and irrelevant factors having been taken into account; and fifth, as to whether the constitutional rights of linguistic or religious minority institutions are violated by the impugned orders.
67. The executive power of the States under Article 162 of the Constitution, as held by the Supreme Court in the case of Rai Sahib Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549 .."do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already." In that case, the apex Court also held that, "The executive function comprises both the determination of the policy as well as carrying it into execution." The width of the State's executive power is therefore co-extensive with the width of it's legislative powers. The necessary consequence is that if the State cannot legislate in a particular field, it cannot also exercise executive power in that field. Article 256 further obligates the States to so exercise their executive power as to ensure compliance with laws made by Parliament and any existing laws which apply in that State.
68. Education as a legislative field is covered by Entries 63 to 66 of List I, and Entry 25 of List III of Schedule VII to the Constitution. Areas not covered by these Entries in List I being the Union list, fall within the scope of Entry 25 in the concurrent list, being List III. Even with respect to matters not covered by Entries 63 to 66 of List I, the State cannot make a law repugnant to the Central law with respect to those matters except with the previous assent of the President, and the law so made must yield to the Central law that may subsequently be made in relation to matters covered by such State law, as provided in Article 254 of the Constitution.
69. In the case of The Gujarat University vs. Krishna Ranganath Mudholkar, AIR 1963 SC 703, which was decided prior to the 42nd amendment which, inter alia, shifted the contents of Entry 11 of List II to Entry 25 of List III, a six Judges Bench of the Supreme Court inter alia held thus: "Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 6 6 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament."
70. It was also observed in paragraph 22 of that judgment thus: "Item 11 of List II and item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap : but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II."
71. The Apex Court further observed in paragraph 24 of that judgment thus: "The fact that the Union has not legislated, or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects coordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid."
72. Thus with respect to matters covered by Entry 66 of List I including those aspects common to that Entry and Entry 25 of List III, State law trenching upon that field would be invalid even if Parliament has not legislated in that field. To the extent admissions are covered by Entry 66 of List I, the State would have no executive or legislative power to regulate admissions, except when in pith and substance the State's legislative or executive action falls outside the entry in the Union list, and the encroachment on the Union's powers is only incidental. However, subsequent decision of the apex Court in the case of Preeti Srivastav vs. State of Madhya Pradesh, 1999 (7) SCC 1 20 has recognised a power in the States to specify standards higher than those set by Central law.
73. In the case of Osmania University Teachers Association vs. State of Andhra Pradesh, AIR 1987 SC 2034 the three Judge Bench of the Supreme Court held that Andhra Pradesh Commissionerate of Higher Education Act is beyond the State legislative competence as it covered the same field as the UGC Act which had been enacted under Entry 66 of List I of Schedule VII to the Constitution. The Court quoted the observations of Shah, J in the case of Gujarat University vs. Krishna Ranganath AIR 1963 SC 703 wherein Shah, J., speaking for the majority view of the Constitution Bench observed : "If a subject of legislation is covered by Items 63 to 66 even if it otherwise falls within the larger field of education including Universities (Entry 25 of List II) power to legislate on that subject must lie with the parliament."
74. In the case of Jaya Gokul Education Trust vs. Commissioner, 2 00 0 (5) SCC 231 a two Judge Bench of the apex Court while holding that grant of approval for establishment of technical institutions is governed solely by the AICTE Act and State action in that field would be without jurisdiction, also held that the State cannot have a policy contrary to the Central Act.
75. In the case of State of Madhya Pradesh vs. Nivedita, 1981 (4) SCC 296, as also in the case of Ajay Kumar Singh vs. State of Bihar, 1 994 (4) SCC 401 it was held that Entry 66 of List I by itself does not have any bearing on the selection of candidates from amongst candidates who are eligible for such admission and that the States have the power to regulate selection. However, the Constitution Bench, in the case of Preeti Srivastav vs. State of Madhya Pradesh, 1999 (7) SCC 1 20 disagreed with the view that standards come in after the selections are made, and that Entry 66 of List I does not take in selection of candidates or regulation of admissions to institutes of higher education.
76. In the case of Preeti Srivastav, the Constitution Bench after noting that education is now in the concurrent list, the Union can legislate on admission criteria also, held that if it does so '....the State will not be able to legislate in this field except as provided in Article 254."
77. Subsequently, a three Judge Bench of the apex Court in the case of Veterinary Council of India vs. Indian Council of Agricultural Research, 2000(1) SCC 750, following the decision in the case of Preeti, held that power to regulate 'standards of education' includes the power to regulate admissions.
78. A limited area in which the States can act in matters concerning admission even when standards are set by the Central law was recognised in the case of Preeti. The Court in that case observed, "ofcourse, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher education courses." The Court at paragraph 37 observed,
" While considering the standards of education in any college or institution, the caliber of students who are admitted to that institution or college cannot be ignored. If the students are of a high caliber, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the caliber of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the caliber of the students as on the caliber of the teachers and the availability of adequate infrastructural facilities."
79. In the case of Unni Krishnan, AIR 1993 SC 2178, the power of the State to regulate admission when such regulation is integral to the scheme of regulation of fees intended to prevent commercialisation of education was recognised.
80. The decisions of Six Judge Bench of the apex Court in the case of Gujarat University, AIR 1963 SC 703, as also the decisions of the constitution Benches in the case of Unni Krishnan, AIR 1993 SC 2178, and in the case of Preeti, 1999(7) SCC 120, e to be reconciled and read harmoniously despite the difficulty in doing so.
81. The scheme framed in Unni's case while directing the Central Government, the UGC, the AICTE and IMC to fix the ceiling on fees, does not require those bodies to conduct the common entrance test or allot the candidates to the professional colleges against free seats and payment seats. That task is left to the Government/University or other authority as is competent to allot students for admission to various professional colleges in the given State. The entrustment of that task to the State appears to be based on the premise that States may select even where admission has been legislated upon by the Centre - the view expressed in the case of Nivedita Jain, 1981 (4) SCC 296, which view was followed later in the case of Ajay Kumar Singh, 1994 (4 ) SCC 401. That view was expressly overruled in the case of Preeti, 1999(7) SCC 120. The limited power of the States recognised in the case of Preeti is only the power to set a higher standard than the one prescribed by the Central law, although in the case of Chitralekha vs. State of Mysore, AIR 1964 SC 1823, it had been held that State Government has power to prescribe machinery and criteria for admission. The decision in Unni, however is binding though it is awaiting consideration by a larger Bench of the apex Court.
82. The general rule is that matters falling within the Union list cannot be encroached upon by the States even when the Centre has not legislated upon these matters. In the field of higher education as recognised in Preeti's case, it is permissible for the States to add to, and set a standard higher than the one prescribed by the Centre. Having regard to the scheme in Unni's case admissions including admission to institutions of higher education may also be regulated by States under a State statute prohibiting capitation fees, when such regulation is integral to a scheme of regulation of fees intended to prevent commercialisation of education.
83. The impugned orders do not even pretend to raise the standards set by the Central law. They clearly do not add to or raise the standards. The State also cannot resort to it's executive power in a field covered by the State statute, namely the Tamil Nadu Act 57 of 199 2. Moreover, the fixation of ceiling on fees having been dealt with in the AICTE Act and the policy Resolution of the Central Government, the State cannot act in a manner inconsistent with that policy. The executive power of the State under Article 162 of the Constitution, which was heavily relied upon by the learned Advocate General, cannot sustain the impugned orders.
84. The policy resolution of 18th March 1997 which has also been gazetted, no doubt, is a policy with regard to fee fixation. That policy was formulated on the basis of the broad principles arrived at at the meetings of the Governments of Tamil Nadu, Andhra Pradesh, Maharashtra and Karnataka, as also endorsed in the meetings of the Ministers of the State for Education. The policy was framed pursuant to the direction given by the Supreme Court in the case of TMA Pai Foundation, which directions were meant to secure the proper implementation of the directions, which had already been given in the case of Unni Krishnan.
85. That policy was formulated after taking into account the fact that though regulations were framed by AICTE subsequent to the judgment in the case of Unni, despite the regulations so framed, uniform policy directions were still needed to be laid down by the Government....... "to cover all aspects of relevance in determining the rates of fee." The policy was made applicable to deemed Universities despite the fact that the deemed Universities had not been referred to and had not been expressly included in the scheme in Unni Krishnan's case. The applicability of the policy as set out in paragraph 6.2 covers all self-financing institutions imparting technical education, and specifically includes institutions imparting postgraduate education in management, whether by awarding degrees or otherwise.
86. The provisions of paragraph 6.3 of the Policy Resolution which deal with admission must therefore to be understood in that background. The directions given by the Supreme Court to Central Government to frame the policy was with a view to more effectively secure the working of the scheme in Unni. The exercise carried out by the Central Government was in aid of the scheme and was not de hors the scheme. It is therefore rightly stated in the policy that the manner and method of admission form part and parcel of fee determination procedure in the scheme of Unni and that the admission procedure laid down therein will apply to the institutions covered by the policy.
87. To the extent the Policy Resolution is inconsistent with the regulations already framed by the AICTE, the policy resolution must prevail, as the power of the Central Government in the matter of issuing of policy directions under Section 20 of the AICTE Act is a superior power to that of the power to frame regulations possessed by the Council. The Council is duty bound to give effect to and implement the policy directions. 88. The effect of the Policy resolution is to bring in all technical education within the purview of the policy. Though management education had been excluded in Regulation 8(4) of the Regulations framed by AICTE in 1994, in view of the specific reference to the management education in the policy resolution, Regulation 8(4) of the 1994 Regulations would cease to have effect on and after the date of the policy Resolution and the scheme incorporated in the Regulations would become applicable to the management course as well, whether undergraduate or postgraduate. The Regulations that had been framed by the AICTE were framed pursuant to the directions in Unni's case.
89. So far as MCA course is concerned, though that course was not covered by 1994 Regulations that course is clearly covered by the policy resolution. Regulation of the fee for the courses covered by the Resolution necessarily involves regulation of admission procedure as well, and the admission procedure set out in the Regulations which has been framed in accordance with the scheme laid down in Unni's case, will apply to the MCA course as well.
90. The State Government is the implementing authority so far as the scheme of admission is concerned, and it can play that role subject to the other parts of the scheme being complied with. The fixation of fee is also to be done at the State level by a State Level Committee, composition of which is set out in paragraph 6.4 of the Resolution. The fee to be fixed for the courses consists of two components - tuition fee and development fee. In so far as the development fee component is concerned, it is required to be determined by the AICTE. It is only when the fee is determined in accordance with the scheme which requires such determination to be made by the month of December, and wide publicity being given thereto well before the commencement of the academic year, that the admission procedure prescribed in the Regulations can be made operative. The scheme contemplates the fee determination being made by the State Level Committee after giving opportunity to the institutions to furnish materials. While framing the scheme different rates of fee for institutions falling in different classes is required to be done. Institutions located in rural areas are recognised in the policy as falling in a different class.
91. In this case, the State has not performed it's role under the policy Resolution read with the admission procedure set out in the AICTE Regulations of 1994, in accordance with the terms of that policy and the Regulations. Though a State Level Committee has been constituted, AICTE has not even initiated steps to fix the development fee for these courses, for the institutions in the State. The fee cannot be fixed by the State Level Committee until that is done. The State Level Committee itself is required to hear the institutions and classify them on a proper basis which also has not been done. The Director of Technical Education clearly has no authority to fix the fees much less as an adhoc measure and he cannot arrogate to himself the powers of the State Level Committee and of AICTE on the ground that the determination made by him and adopted by the State Government is to be operative till it is properly determined by the State Level Committee.
92. The State has put the cart before the horse in issuing the notification for the common entrance test even before completing the exercise for fee determination. It was very necessary for that exercise to have been completed first, particularly because the single window procedure is sought to be introduced for the first time in the State for these courses. The students have been asked to appear for the examination without the fee payable by them having been fixed in accordance with the scheme and the institutions are being asked to accept the students allotted by the State without being able to collect a fair fee determined in accordance with the general principles laid down in the policy.
93. The timing as also the contents of the impugned notifications do not conform to the requirements of the Policy Resolution, and despite the State having the power under that policy Resolution subject to the State acting in accordance therewith, the impugned notifications which do not conform to the requirements of the Policy Resolution read with the Regulations, cannot be regarded as a valid exercise of power under the Policy, and will have to be struck down.
94. The State has no independent power to hold a common entrance test for admission as the conduct of such test is a matter for regulation for the AICTE which empowers the AICTE under Section 10 of the AICTE Act to lay down guidelines for admissions. Any test will have to be within the frame work of Regulations and the Policy laid down by the Central Government and the AICTE. Though the State Government has been recognised as competent to conduct the test for admission to MCA course in the Norms prescribed by the AICTE, the object of the impugned notification is not to merely test the ability of the students coming from different backgrounds for determining their suitability for undergoing the MCA course.
95. The object of the proposed test goes beyond, and is intended to allot students to different institutions compelling them to accept the students so allotted thereby taking away the discretion vested in the institutions to decide on the student composition for the course. If the object of the State is limited to holding a test to assist the colleges only to screen and eliminate those who do not measure up to the standard required to be met, for the students to benefit from the course, the holding of such a test for MCA would be permissible as the AICTE in the Norms and Standards prescribed by it has recognised the State Government as being competent to hold admission test for determining the merit of the students. But that is not the limited objective of the proposed common entrance test.
96. The second impugned order issued by the State clearly shows that the holding of the common entrance test is with a view to make allotment to the colleges and compelling them to accept the students allotted by the State, to classify the seats into 'payment seats' and ' free seats' and fix a ceiling on the fees for these seats. The two impugned orders form integral part of the single window system, and on account of the State's failure to comply with the Policy and the Regulations, both orders cannot be sustained.
97. The petitioners have asserted a fundamental right to carry on the occupation of running self-financing educational institutions. Such a claim was considered by the Supreme Court in the case of Unni Krishnan. The Court therein, after holding that the establishment and running of educational institutions can neither be a trade nor business, nor could it be a profession within the meaning of Article 19(1)( g) of the Constitution, for the purpose of the case before it proceeded on the assumption that "a person or body of persons has a right to establish an educational institution in this Country'. The Court further observed that 'this right, we must make it clear, is not an absolute one, it is subject to such law as may be made by the State in the interest of the general public. In the same case it was also held by the Court that there is no fundamental right to affiliation, recognition or approval for the institution or the courses run by it. It was further held that imposition of conditions such as those forming part of the scheme framed in Unni Krishnan may not only be, but are required to be imposed on such institutions while granting affiliation, recognition or approval.
98. Assuming as the Supreme Court did, in the case of Unni Krishnan, that the petitioners have a right under Article 19(1)(g) of the Constitution to establish and maintain self-financing educational institutions, the impugned orders of the Government do not take away that right. What is sought to be done by the impugned orders is to regulate the fee as also the admissions which cannot be regarded as having a direct impact on the establishment and maintenance of the institutions. The fact that the impugned orders are not part of enacted legislation cannot therefore be regarded as violative of Article 19(1)(g) read with Article 19(6) of the Constitution.
99. The AICTE Act, the Regulations framed thereunder and also the Policy Resolution and Norms and Standards prescribed by the Central Government bind the petitioners and actions taken in accordance with the Act, Regulations, Policy and Norms do not violate any fundamental right of the petitioners, as all restrictions so imposed form part of the conditions subject to which approval is given, or required to be given by the ACITE for the courses run by the petitioner institutions.
100. It was submitted by the counsel for the petitioners that the impugned orders have taken into account irrelevant factors and ignored relevant factors and are therefore clearly unsustainable. The reference made in the G.O. Ms. No.108 to students having to apply to large number of institutions incurring expenditure thereon if a common entrance test is not held, cannot be said to be a irrelevant factor, as enabling the large body of students seeking admissions to these courses to undergo a uniform test after which they will be considered for admission to not merely one college, but to any of the institutions in the State subject to their merit ranking, is sufficient to justify the holding of a common entrance test, if it is otherwise permissible. Such a justification gets strengthened when such a test is to be held for the MBA and MCA courses, the eligibility criteria for which permit students coming from taken different disciplines to apply for the course. A uniform test for all such applicants will enable the institutions to have a student body coming from diverse academic disciplines all of whom have demonstrated their fitness and ability for undergoing the MBA or MCA courses.
101. The reference in that impugned order to the syllabi prescribed in different Universities for these courses being different, however, cannot be regarded as relevant factor. That syllabi has no reference to the conduct of the test, as the test itself is uniform and is intended to test the candidate's suitability for undergoing the course with the particular syllabi prescribed by any one of the Universities.
102. If it were to be possible to sustain the Government Order proposing to hold a common entrance test for the MCA on account of it being based on a factor relevant to the holding of such a test, despite the other lacuna, we would have done so. However, the object of the test not being one of merely drawing up a merit list but being actually one intended to allot candidates against free and payment seats subject to reservations, such test may be held only in accordance with Policy Resolution read with the Regulations of 1994. The requirements of that policy and Regulations not having been satisfied by the impugned order for the MBA as also MCA, we cannot sustain that impugned order of 09.04.2002.
103. The impugned order of 18.04.2002 with regard to the ceiling on fee is wholly arbitrary inasmuch as that it merely sets out a recommendation made by one individual and acceptance thereof by the Government without any kind of enquiry, without any material having been gathered and considered, and without any opportunity being given to the affected institutions to place relevant materials before it. The order fixing the fee is arbitrary besides being without any jurisdiction.
104. Some of the petitioner institutions are being run by linguistic and religious minorities. They complain that their rights as minority institutions are violated by the impugned orders. If it were possible to sustain the impugned orders as being part of the scheme in 1 994 Regulations read with policy Resolution of 1997, this complaint would have had to be rejected as the scheme formulated in Unni as subsequently modified in the case of Shahal H. Musaliar vs. State Of Kerala, 1993(4) SCC 112, clearly states that in the minority institutions 50 of the seats in the free as well as in payment categories are permitted to be filled by the concerned institutions from among the persons belonging to that minority in the order of merit and that right has been preserved in the impugned order of 18.04.2002. The two orders, for this, as also other purposes must necessarily be read together. As the impugned orders are being set aside on the ground that they do not comply with the requirements of the Policy Resolution and the Regulations, it is not necessary to examine the larger question regarding the extent of rights of minority institutions, especially when that question is currently being examined by an Eleven Judge Bench of the apex Court. 105. The regulation of admission need not necessarily be linked to the regulation of fees. The two can be independently regulated. Merit ranking can be done by administering uniform test to all applicants as that will ensure the selection of students who are the most meritorious among the applicants, and who are capable of benefiting from the course which they wish to undergo.
106. Fees can be regulated to ensure that it is fair, and not unduly excessive, and the fee so regulated can be collected on an uniform basis from all students wishing to undergo that course. The AICTE Act does not require the linkage of admission with fees. Admissions can be dealt with separately as has been done in the Norms and Standards prescribed by AICTE, which Norms require the applicants for the MBA course to undergo an all India test such as the Management Aptitude Test followed by an interview/group discussion. That will ensure that the students who are ultimately offered admissions have demonstrated their ability to benefit from the course. 107. Though fee can be regulated under that Act, that exercise has not been done by the AICTE independently of regulation of admission. The scheme contained in the regulation framed in the year 1994 was one which incorporated the scheme framed in Unni's case which links admissions with fee. The theoretical foundation for such linkage has been stated by the Court, and has been extracted at paragraph 32 above.
108. Testing need not necessarily be linked with the allotment of the candidates for free seats or payment seats. A test such as the Management Aptitude Test is not intended to serve any such purpose. It is only meant to test the fitness or capacity for undergoing the MBA course. The role envisaged for the State Government in the Norms prescribed by AICTE for MCA, is only to conduct such a test.
109. The Policy Resolution of 1997 of the Central Government has extended the scheme in Unni as incorporated in the 1994 Regulations, to all technical and management courses under the purview of the AICTE. The extension so made is sweeping in it's scope. The consequences of such extension has apparently not been realised by the AICTE as also the Central and Sta te Governments. All postgraduate courses in all technical disciplines and management courses have become subject to the admission linked fee fixation regime contained in the AICTE Regulations of 1994 read with the Policy Regulations of 1997.
110. The ground reality, however is that for several years that scheme has not been implemented for any postgraduate engineering course. For the MCA and MBA courses it had not been implemented in this State as also in several other States. The students cannot be made to suffer on account of the State's failure to take the necessary steps in time. The same state of affairs will have to continue for this academic year as well. The AICTE and State Government or the Universities who are required to monitor the work done by these institutions have not found anything wrong in their working so far. Admissions made or to be made by them after complying with the Norms and standards of AICTE cannot be faulted as the State had not conducted the test in earlier years, and while wanting to conduct it this year, it has not taken the requisite steps in time for determining the fees in accordance with the Policy Resolution. Further, some of the petitioners had completed the admissions before the issue of impugned orders, several of them had held the requisite tests to select the candidates and some had completed the selection process.
111. The unfortunate situation created for the students this year is the result of the negligence and tardy action on the part of the State Government, which has failed to act with the degree of responsibility required of it while dealing with the future of the students who wish to benefit from postgraduate education in business administration and computer application. 112. The AICTE and the Central Government on their part should immediately carry out such amendments as are necessary to the Policy Resolution and the Regulations, and set out clearly therein the courses to which the regulatory regime of centralised admissions and allotment linked to fixation of ceiling on fees is to apply, and thereafter ensure compliance with such regulations by all concerned.
113. The State Government should, for the courses for which it has the responsibility for conducting a common entrance test, draw up a check list and time table for the steps to be taken under the applicable regulations and Policy and strictly act in accordance with the Policy and Regulations and comply with the time frames laid down therein for future years. 114. Although several thousand students have applied for the test, in view of the above legal position and by reason of the acts of omission and commission of the State, the conduct of the test pursuant to the impugned order of 9th April, 2002 is impermissible in law. The fee fixed under the impugned order of 18th April, 2002 being arbitrary and without jurisdiction, the same cannot be given effect to. The fee collected by the Government or the Anna University from the students who have applied for the MBA and MCA shall be refunded to them in full and all the expenses incurred by the Anna University in this regard shall be borne wholly by the State Government. 115. The writ petitions are allowed and the impugned orders of 09.0 4 .2002 and 18.04.2002 are set aside.
(R.J.B.,J.) (E.P.,J.) 03.07.2002 Index : Yes
1. The Secretary to State Government, State of Tamil Nadu, Higher Education Department, Fort St. George, Chennai 9. 2. The Secretary, Tamil Nadu Engineering Admission Co-ordination Committee, Anna University, Chennai 600 025.
3. The Director of Technical Education, Government of Tamil Nadu, Guindy, Chennai.
4. Advisor (E & T), I.P. Estate, The All India Council for Technical Education, New Delhi.
5. The All India Council for Technical Education, Southern Regional Office, Sashtri Bhavan, 26 Haddows Road, Nungampakkam, Chennai 6. 6. The Registrar, The Anna University, Guindy, Chennai. 7. The Director of Collegiate Education, Tamil Nadu Text Book Society Bldng., College Road, Chennai 600 006.
8. The Secretary, Co-ordination Committee for Common entrance examination for admission into MCA and MBA courses, Anna University, Chennai 600 025. 9. The Registrar, University of Madras, Chennai. mf
R.Jayasimha Babu, J.
WP.No.13090 of 2002 & batch
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