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CASE NO.: Appeal (civil)  976-978 of 1999

PETITIONER: Govt. of A.P. & Anr.                                             

RESPONDENT: J.B. Educational Society & Anr., etc.                    

DATE OF JUDGMENT: 23/02/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: JUDGMENT With

CIVIL  APPEAL  No. 3026 OF 1999 K.G. BALAKRISHNAN, J.

       These appeals are filed by the State of Andhra Pradesh  challenging the decision of the Division Bench of the High Court of  Andhra Pradesh in Writ Appeal Nos. 1571 of 1997; 84 of 1998;  and  85 of 1998.  By the impugned Judgment, the Division Bench partly  confirmed the judgment of the learned Single Judge and held that  Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982 (in  short  "the A.P. Act") is void and inoperative and the State  Government had no legislative competence to pass such a legislation  as the State provision was in the field already occupied by the  enactment made by the Parliament, namely, All India Council of  Technical  Education Act, 1987 (hereinafter being referred to "AICTE  Act").    It was held that in view of Section 10 of the AICTE Act with  regard to  establishment of technical institutions in general,   the said  special enactment legislated by the Parliament would prevail over the  A.P. Act to the extent of its repugnancy.

       The Writ Petitioners are the private educational institutions.   They wanted to establish engineering colleges in the State of Andhra  Pradesh.  They applied to the authorities under the AICTE Act and  approval was granted to them for the academic year 1997-98 by the  AICTE Council.  These Writ Petitioners made applications under Section  20 of the Act for permission to establish the institution. The permission  was rejected on the ground that the Writ Petitioners had been seeking  permission to establish colleges in the places where already there were  number of colleges and that the State Government was not satisfied  about the educational needs of that locality.  In that view of the  matter, permission was declined.  Aggrieved by the same, the Writ  Petitions were filed.

       A.P. Act is a consolidating and amending Act made by the State  Legislature with the object of reforming, organising and developing  educational system in the State and to provide for matters connected  therewith or incidental thereto.  This legislation had received the  assent of the President.  Under Section 19 of the A.P. Act, educational  institutions are classified into three categories, namely, State  institutions, local Authority institutions and Private institutions and  granting of permission for the establishment of educational institutions  is governed by Section 20.  This Section was amended by  Act No. 27  of 1987 wherein it was provided that  no educational institutions shall  be established except in accordance with the provisions of the Act. The  State Government is authorised to appoint by notification a competent  authority for such area as may be specified in the notification.  Sub- Section (1) of Section 20 provides that the competent authority

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appointed by the State Government shall from time to time, conduct a  survey for the purpose of identifying the educational needs of the  locality under its jurisdiction and thereafter it shall issue notification  through the local newspapers calling for applications from the  educational agencies desirous of establishing educational institutions.   Educational agency means any body of persons including that of  religious or linguistic minority entrusted with the establishment and  maintenance of a private educational institution of a minority  educational institution, as the case may be.  Any educational agency  applying for  such permission shall satisfy the concerned authority that  there is need for providing educational facilities to the people in the  locality.  There are some other requirements mentioned in sub-Section  (3) of Section 20 and those conditions have to be fulfilled by the  educational agency for applying of permission for establishing an  educational institution.  Section 20 of the A.P. Act reads as follows:-

"PERMISSION FOR ESTABLISHMENT OF EDUCATIONAL  INSTITUTIONS:  

(1) The competent authority shall, from time to time, conduct  a survey as to identify the educational needs of the locality  under its jurisdiction, and notify in the prescribed manner  through local news papers calling for applications from the  educational agencies desirous of establishing educational  institutions.

(2) (a) In pursuance of the notification under sub-section (1)  any educational agency including local authority or registered  body or persons intending to \026 (a)     establish an institution imparting education; (b)      xxxxxxxxxxxxxxxx (c)  xxxxxxxxxxxxxxxx (d)  xxxxxxxxxxxxxxxx

(3) Any educational agency applying for permission under  sub-section (2) shall \026 (a)     before the permission is granted, satisfy the  authority concerned, - (i) that there is need for providing educational facilities  to the people in the locality; (ii) & (iii) (b) & (c) xxxxxxxxxxxxxxxxxxxxx

(4) On and from the commencement of the Andhra Pradesh  Education (Amendment) Act, 1987 no educational institution  shall be established except in accordance with the provisions  of the Act."

       The source of legislation of the A.P. Act is traced to Entry 25 of  the Concurrent List which is to the following effect:-

"Education, including technical education, medical  education and universities, subject to the provisions  of Entries 63, 64, 65 and 66 of List I; vocational and  technical training of labour."

       AICTE Act was enacted by the Parliament by virtue of the powers  under Entry 66 of the Union List wherein exclusive power is vested  with the Central Government with regard to  technical education.   AICTE Act was enacted with the object of regulating and coordinating  the development of technical education throughout the country and  also for establishment of proper and uniform norms and standard of  technical education in India.  Under Section 3,  the Central  Government shall appoint a Council called All India Council of Technical

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Education and under Section 10 of the Act, the Council has the  following powers and functions:-

"10 (1) it shall be the duty of the Council to take all such  steps as it may think fit ensuring coordinated and  integrated development of technical education and  maintenance of standards and for the purpose of  performing its functions under this Act, the council may \026

(a) undertake survey in the various fields of technical  education,  collect data on all related matters and make  forecast of the needed growth and development in  technical education;

(b) coordinate the development of technical education,  collect data on all related matters and make forecast of  the needed growth and development in technical  education;

(c) allocate and disburse out of the Fund of the Council  such grants on such terms and conditions as it may  think fit to  i.      technical institutions and ii.     universities imparting technical education in  coordination with the commission;

(d) promote innovations research and development in  established and new technologies, generation, adoption  and adaptation of new technologies to meet  developmental requirements and for overall  improvement of educational processes.

(e) create schemes for promoting technical education  for women, handicapped and weaker sections of the  society.

(f) promote an effective link between technical  education system and other relevant systems including  research and development organizations industry and  the community;

(g) evolve suitable performance appraisal systems for  technical institutions and universities imparting  technical education, incorporating norms and  mechanisms for enforcing accountability;

(h) formulate schemes for the initial and in service  training of teachers and identify institutions or centres  and set up new centres for offering staff development  programmes including continuing education of teachers;

(i) lay down norms and standards for courses, curricula,  physical and instructional facilities, staff pattern, staff  qualifications, quality instructions, assessment and  examinations;

(j) fix norms and guidelines for charging tuitions and  other fees;

(k) grant approval for starting new technical institutions  and for introduction of new courses or programmes in  consultation with the agencies concerned;

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(l)  advice the central government in respect of grant of  character to any professional body or institution in the  field of technical education conferring powers, rights  and privileges on it for the promotion of such profession  in its field including conduct of examination and  awarding of membership certificates;

(m) lay down norms for granting autonomy to technical  institutions;

(n) take all necessary steps to prevent  commercialisation of technical education;

(o) provide guidelines for admission of students to  technical institutions and universities imparting  education;

(p) inspect or cause to inspect any technical  institutions;

(q) withhold or discontinue grants in respect of courses,  programmes to such technical institutions which fails to  comply with the directions given by the council within  the stipulated period of time and take such other steps  as may be necessary for ensuring compliance of the  directions of the council;

(r) take steps to strengthen the existing organizations,  and to set up new organizations to ensure effective  discharge of the council’s responsibilities and to create  positions of professional, technical and supporting staff  based on requirements;

(s) declare technical institutions at various levels and  types offering course in technical education fit to  receive grants;

(t) advise the commission for declaring any institution  imparting technical education as a deemed university;

(u) set up a Nations Board of Accreditation to  periodically conduct evaluation of technical institutions  or programmes on the basis of guidelines, norms and  standards specified by it and to make recommendation  to it, or to the council or to the commission or to other  bodies regarding recognition or de-recognition of the  institution or the programme;

(v) perform such other functions as may be prescribed.

       From the provisions of the Act, it is clear that the purpose of the  enactment was proper planning and coordinated development of   technical education system throughout the country and promotion of  qualitative improvement of such education and other allied matters. In  Unni Krishnan Vs. State of AP 1993(1) SCC 645, this Court  emphasized the importance of such a central Council for the promotion  of qualitative improvement of technical education.  By virtue of Section  23 of the AICTE Act, the Council is competent to frame regulations and  the regulations are called "All India Council for Technical Education  (Grant of Approval) for starting new technical institutions, introduction  of courses or programmes,  approval of intake capacity of seats for the  courses or programme Regulations, 1994."   Under Regulation 9,  several committees are formed, namely, Expert Committee, State

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Level Committee, Central Task Force, etc. While the Expert Committee  is constituted by the Council in consultation with the Chairman of the  Regional Committee and consists of other representatives of the State  Level Committee,  the State Level Committee constituted under sub- regulation 4 of  Regulation 9 considers the recommendations of the  State Government and others mentioned in Sub-Regulation 4 and  submits its recommendations to the Central Task force, constituted  under sub-regulation 5 of Regulation 9. If there is any disagreement  between the recommendations made by the State Government,  University or Regional Committee, the Central Task Force shall invite  representatives of the respective agencies for further consultations  before making final recommendations.

       The petitioners in the Writ Petitions contended that in view of   Section 10 of the AICTE Act, no permission of the State Government  under Section 20 of the Act was required as the field is completely  covered by the AICTE Act.  It was argued that once the approval was  granted by the Council, the State Government cannot refuse  permission on the ground that the proposed educational institution  may not subserve the educational needs of the locality.  The learned  Counsel for the State, on the other hand, contended that Section 20 of  the AP Act and Section 10 of the AICTE Act operate in different fields,  there is no conflict between these provisions and that  they are not  repugnant to each other and the decision of the Division Bench is  erroneous.  It was also contended by the appellant’s Counsel that the  State Legislature has legislative competence to pass the enactment  and that, in view of  Entry 25 of the Concurrent List, the State alone  would be competent to say whether an institution should be  established in an area to serve the educational needs of that locality.   

       The legislative powers of the Parliament and the State  Legislatures are governed by Article 246 to 255 of Part II of the  Constitution.  Article 246 reads as follows:-

"Subject-matter of laws made by Parliament and by  the Legislature of States. \026 (1) Notwithstanding  anything in clauses (2) and (3), Parliament has exclusive  power to make laws with respect to any of the matters  enumerated in List I in the Seventh  Schedule (in this  Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament,  and, subject to clause (1), the Legislature of any state  also, have power to make laws with respect to any of the  matters enumerated in List III in the Seventh Schedule (in  this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of  any State has exclusive power to make laws for such State  or any part thereof with respect to any of the matters  enumerated in List II in the Seventh Schedule (in this  Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect  to any matter for any part of the territory of India not  included [in a State] notwithstanding that such matter is a  matter enumerated in the State List. "

The Parliament has exclusive power to legislate with respect to any  of the matters enumerated in List I, notwithstanding anything  contained in clauses (2)  and (3) of Article 246.  The non-obstante  clause under Article 246(1) indicates the predominance or supremacy  of the law made by the Union legislature in the event of an overlap of  the law made by Parliament with respect to a matter enumerated in  List I and a law made by the State legislature with respect to a matter  enumerated in List II of the Seventh Schedule.

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There is no doubt that both Parliament and the State legislature are  supreme in their respective assigned fields.   It is the duty of the Court  to interpret the legislations made by the Parliament and the State  legislature in such a manner as to avoid any conflict.   However, if the  conflict is unavoidable, and the two enactments are irreconcilable,  then by the force of the non-onbstante clause in Clause (1) of Article  246, the Parliamentary legislation would prevail notwithstanding the  exclusive power of the State legislature to make a law with respect to  a matter enumerated in the State List.

With respect to matters enumerated in the List III (Concurrent  List), both the Parliament and the State legislature have equal  competence to legislate.   Here again, the courts are charged with the  duty of interpreting the enactments of Parliament and the State  legislature in such manner as to avoid a conflict.   If the conflict  becomes unavoidable, then Article 245 indicates the manner of  resolution of such a conflict.

Thus, the question of repugnancy between the Parliamentary  legislation and the State legislation can arise in two ways.   First,  where the legislations, though enacted with respect to matters in their  allotted sphere,  overlap and conflict.   Second, where the two  legislations are with respect to matters in Concurrent List and there is  a conflict.   In both the situations, Parliamentary legislation will  predominate, in the first, by virtue of the non-obstante clause in  Article 246(1), in the second, by reason of Article 245(1).  Clause (2)  of Article 245 deals with a situation where the State legislation having  been reserved and having obtained President’s ascent prevails in that  State; this again is subject to the proviso that the Parliament can  again bring a legislation to override even such State legislation.

       It is in this background  that  the provisions contained in the two  legislative enactments have to be scrutnised.  The provisions of the  AICTE Act are intended to improve the technical education and the  various authorities under the Act have been given exclusive  responsibility to coordinate and determine the standards of higher  education.  It is a general power given to evaluate, harmonise and  secure proper relationship to any project of national importance.  Such  a coordinate action in higher education with proper standard is of  paramount importance to national progress. Section 20 of the AP Act  does not in any way encroach upon the powers of the authorities  under the Central Act.  Section 20 says that the competent authority  shall, from time to time, conduct a survey to identify the educational  needs of the locality under its jurisdiction notified through the local  newspapers calling for applications from the educational agencies.   Section 20(3)(a)(i) says that before permission is granted, the  authority concerned must be satisfied that there is need for providing  educational facilities to the people in the locality.  The State authorities  alone can decide about the educational facilities and needs of the  locality.  If there are more colleges in a particular area, the State  would not be justified in granting permission to one more college in  that locality.  Entry 25 of the Concurrent List gives power to the State  Legislature to make laws regarding education,  including technical  education.  Of course, this is subject to the provisions of Entry 63, 64,  65 and 66 of List I.  Entry 66 of List I to which the legislative source is  traced for the AICTE Act deals with the general power of the  Parliament for coordination, determination of standards in institutions  for higher education or research and scientific and technical  educational institutions and Entry 65 deals with the union agencies and  institutions for professional,  vocational and technical training,   including the training of police officers, etc.  The State has certainly  the legislative competence to pass the legislation in respect of  education including technical education and Section 20 of the Act is  intended for general welfare of the citizens of the State and also in

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discharge of the constitutional duty enumerated under Article 41 of the  Constitution.

       The general survey in  various fields of technical education  contemplated under Section 10(1)(a) of the AICTE Act is not  pertaining to the educational needs of any particular area in a State.   It is a general supervisory survey to be conducted by the AICTE  Council, for example, if any IIT is to be established in a particular  region, a general survey could be conducted and the Council can very  much conduct a survey regarding the location of that institution and  collect data of all related matters.  But as regards whether a particular  educational institution is to be established in a particular area in a  State, the State alone would be competent to say as to where that  institution should be established.  Section 20 of the AP Act and Section  10 of the Central Act operate in different fields and we do not see any  repugnancy between the two provisions.  

This Court in  M. Karunanidhi v. Union of India, (1979) 3  SCC 431 at page 499  held thus:  

"It is well settled that the presumption is always in favour  of the constitutionality of a Statute and the onus lies on  the person assailing the Act to prove that it is  unconstitutional Prima facie, there does not appear to us  to be any inconsistency between the State Act and the  Central Acts. Before any repugnancy can arise, the  following conditions must be satisfied:

1.      That there is a clear and direct inconsistency  between the Central Act and the State Act.

2.      That such and inconsistency is absolutely  irreconcilable.

3.      That the inconsistency between the provisions of  the two Acts is of such a nature as to bring the  two Acts into direct collision with each other and a  situation is reached where it is impossible to obey  the one without disobeying the other."

This Court also referred to the earlier decisions including Deep Chand  Vs. State of U.P. (1959 Supp (2) SCR 8, at p. 43), wherein various  tests to ascertain the question of repugnancy between the two  statutes were indicated and, inter alia, it was held that repugnancy  between two statutes may be ascertained by considering, whether  Parliament intended to lay down an exhaustive code in respect of the  subject matter replacing the Act of the State Legislature.  Reference  was made to  Megh Raj Vs. Allah Rakhia AIR 1942 FC 27,  wherein it  was observed that if the paramount legislation does not purport to be  exhaustive or unqualified,  there is no inconsistency and it cannot be  said that any qualification or restriction introduced by another law is  repugnant to the provision in the main or paramount law. This court  also referred to T.S. Baliah Vs. T.S. Rangachari (1969) 3 SCR 65  wherein it was, inter alia,  observed that before coming to the  conclusion that there is a repeal by implication, the court must be  satisfied that the two enactments are so inconsistent that it becomes  impossible for them to stand together.

In Kanaka Gruha Nirmana Sahakar Sangha Vs.  Narayanamma, (2003) 1 SCC 228, this court after quoting Article  254 held:

"The language of the aforesaid article is crystal clear  and it inter alia provides [subject to the provisions of  clause (2)] that \026

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9. (a)if any provisions of law made by the legislature  of a State is repugnant to any provision of a law  made by Parliament, which Parliament is competent  to enact, then the law made by Parliament whether  passed  before  or after  the  law  made   by the  legislature of   the    State   shall,   to   the   extent  of repugnancy, be void;or   

(b)if any provision of a law made by the legislature  of a state is repugnant to any provision of an  existing law with respect to one of the matters  enumerated in the Concurrent List, then the existing  law shall prevail and the law made by the legislature  of the State shall, to the extent of repugnancy, be  void."

10. "There cannot be any doubt that the article gives  supremacy to the law made by the Parliament, which  Parliament is competent to enact, but for application  of this article, firstly, there must be repugnancy  between the State law and the law made by  Parliament. Secondly, if there is repugnancy, the  State legislation would be void only to the extent of  repugnancy. If there is no repugnancy between the  two laws, there is no question of application of  Article 254 (1) and both Acts would prevail."

In T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8  SCC 481, Justice Khare, as he than was, on the question of  transposition of subject "Education" from List II to List III and its  effects, held :

"It may be remembered that various entries in three  lists of the Seventh Schedule are not powers of legislation  but field of legislation. These entries are mere legislative  heads and demarcate the area over which the appropriate  legislatures are empowered to enact law. The power to  legislate is given to the appropriate legislatures by Article  246 and other articles. \005\005\005.Thus the function of entries in  three lists of the Seventh Schedule is to demarcate the  area over which the appropriate legislatures can enact  laws but does not confer power either on Parliament or the  State Legislatures to enact laws. It may be remembered,  by transfer of the entries, the character of the entries is  not lost or destroyed."          Justice B.N. Kirpal, the then Chief Justice of India, on the  question of admissions in private unaided professional colleges held  that:  

       "\005. It must be borne in mind that unaided  professional institutions are entitled to autonomy in their  administration while, at the same time, they do not forego  or discard the principle of merit. It would, therefore, be  permissible for the university or the Government at the  time of granting recognition, to require a private unaided  institution to provide for merit-based selection while, at  the same time, giving the management sufficient  discretion in admitting students. This can be done through  various methods. For instance, a certain percentage of the  seats can be reserved for admission by the management  out of those students who have passed the common  entrance test held by itself or by the State/university and

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have applied to the college concerned for admission, while  the rest of the seats may be filled up on the basis of  counseling by State agency. This will incidentally take care  of poorer and backward sections of the society. The  prescription of percentage of this purpose has to be done  by the Government according to the local needs and  different percentages can be fixed for minority unaided and  non-minority aided and professional colleges. The same  principles may be applied to other non-professional but  unaided educational institutions viz. graduation and  postgraduation non-professional colleges or institutions."

        In Islamic Academy of Education Vs. State of Karnataka  (2003) 6 SCC 697 at 770 , it was held as under:

"Local Needs would vary from State to State. Even  development of a backward area may be a local need. The  absence of a good educational institution in a particular  area may be a local need. State may, in pursuit of its  policy for the development of the people, consider it  expedient to encourage entrepreneurs for establishing  educational institutions in remote and backward areas for  the benefit of the local people.  Local needs, therefore,  cannot be defined only with reference to the State as a  unit. For good reasons the State may not like to establish  professional colleges or institutions only in their capitals."

    In Jaya Gokul Educational Trust vs. Commissioner-cum- Secretary Higher Education & Ors (2000) 5 SCC 231, and in  Government of A.P. & Anr. Vs. Medwin Educational Society &  Ors.  (2004) 1 SCC 86, similar views were expressed by this Court.

 The educational needs of the locality are to be ascertained and  determined by the State.  Having regard to the regulations framed  under the AICTE Act, the representatives of the State have to be  included in the ultimate decision making process and having regard to  the provisions of the Act, the Writ Petitioners would not in any way be  prejudiced by such provisions in the A.P. Act.  Moreover, the decision,  if any, taken by the State authorities under Section 20(3)(a)(i) would  be subject to judicial review and we do not think that the State could  make any irrational decision about granting permission.  Hence, we  hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10  of AICTE Act and it is constitutionally valid.

       In the result, we set aside the judgment of the Division Bench  and the appeals are allowed accordingly.   There will be no order as to  costs.