http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: P.KASILINGAM & ORS

       Vs.

RESPONDENT: P.S.G. COLLEGE OF TECHNOLOGY & ORS

DATE OF JUDGMENT24/03/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) SAWANT, P.B.

CITATION:  1995 AIR 1395            1995 SCC  Supl.  (2) 348  JT 1995 (3)   193        1995 SCALE  (2)387

ACT:

HEADNOTE:

JUDGMENT: S.C..AGARWAL, J.: 1.   These  appeals  raise  the common  question  whether  a private engineering college is governed by the provisions of the  The Tamil Nadu Private Colleges (Regulation) Act,  1976 (hereinafter refereed to as ’the Rules) made under the  Act. Third question has arisen in the context of P S.G.College of Technology and Polytechnic, (hereinafter referred to as  the ’College) in three writ petitions (Writ petitions Nos. 2604, 3130 and 3205 on 1981)before the Madras High Court.  By  its judgement  dated  December 23, 1982, the High  Court,  while dismissing  Writ  petitions Nos. 2604 and 3130 of  1981  and allowing Writ petitions No. 3205 of 1981. has held that  the Act  and  the  Rules do not apply  to  the  College.   These appeals  are directed against the said judgment of the  High Court. 2.   On  January  31, 1976 the President of India  issued  a Proclamation under Article 356 of the Constitution of India, in relation to the State of Tamil Nadu, declaring inter alia that  the  powers of the Legislature of the State  shall  be exercisable  by  or  under  the  authority  of   Parliament. Parliament  under  Article 357 (1)-(a) of  the  Constitution enacted  the  Tamil Nadu State  Legislature  (Delegation  of Powers)  Act, 1976 whereby it conferred on the President  of India  the powers of the Legislature of the State  of  Tamil Nadu  to make laws in relation to State of Tamil  Nadu.   In exercise  of the said powers the President of India  enacted the Act to provide for the regulation of private colleges in the State of Tamil Nadu.  Chapter 11 (Sections 3 to 10) make provisions  for establishment, permission  to  establishment and  management  of the private colleges.   In  Chapter  III (Sections 11 to 14) provision is made for college  committee and its constitution and functions.  Chapter IV (Sections 15 to  24)  deals with the terms and conditions of  service  of teachers  and  other persons employed in  private  colleges. Chapter V (Sections 25 to 32) relates to control of  private

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

colleges.   Other  provisions are contained  in  Chapter  VI (Accounts,  Audit,  Inspection and Furniture),  Chapter  VII (General   Provisions  regarding  Appeal  and   Revisional), Chapter  VIII  (Penalties  and  procedure)  and  Chapter  IX (Miscellaneous) 3.   In  exercise of thee powers conferred by Section 53  of the Governor of Tamil Nadu has maid the Rules.  Rule 3 makes provision for the application for permission to establish  a college and prescribes the form 196 (Form 2) for such an application.  Rule 4 provides for grant of  permission by State Government.  Rule 7 makes  provision for  payment  of grants to the college for  the  purpose  of teaching,  construction of buildings, purchase  of  building site, play ground, furniture, books and appliances.  Rule  8 relates  to Constitution of committee.  Rule 11 to  15  deal with  the conditions of service, etc. of teachers and  other persons  in  college.   Rule 16  appertains  to  closure  of private colleges. 4.   On March 18, 1981 the Governing Body of the     College passed a resolution whereby it     was resolved that the Act and the Rules do    not   apply   to   the   College.     P. Kasilingam,  as lecturer in the Electrical  Electronics  and Communication  Engineering  in  the College,  filed  a  Writ Petition  (Writ  petition  No.  2604  of  1981)  wherein  he challenged  the  validity  of the  said  resolution  of  the Governing  Body of the College.  In the said  Writ  Petition the  said petitioner challenged the power of the College  to advertise  on  All  India Basis and  call  applications  for filling  up  vacancies  in  faculty  positions  in   various departments.   The case of the said petitioner was  that  in view  of  Rule 11 (4) (i) and (ii) it is incumbent  on  ’the part of the College to consider the claims of all  qualified teachers  in the College while making promotions and  making of direct recruitment to promotional posts could arise  only when none of the qualified teachers in the College is  found qualified  for promotion.  The said petitioner claimed  that he  is qualified for promotion from the post of Lecturer  to the  post  of  Assistant  Professor  in  the  Department  of Electrical,  and Electronics Engineering or Electronics  and Communication  Engineering and’ that without  promoting  him the  causing  of all India advertisement for filing  up  the vacancies was illegal.  Another Writ Petition [Writ Petition No.  3130  of 1981] was filed by number of teachers  in  the College  wherein  they  challenged  the  resolution  of  the Governing  Body of the College dated March 18, 1981.   As  a counter to these writ petitions the College filed a Writ Pe- tition  [Writ  Petition  No. 3205 of 1981]  wherein  it  was asserted that the professional and technical colleges,  like the College, are not included within the purview of the  Act and the Rules and that the Central Government as well as the State  Government have both proceeded on the basis that  the provisions  of  the  Act and the Rules  do  not  cover  such professional colleges. 5.At this stage it would be relevant to mention that the All India  Council  for Technical Education [AICTE]  was  estab- lished by the Government of India by a Government resolution in 1945 as a national expert body to advise the Central  and the   State   Governments  for  ensuring   the   coordinated development  of  technical  education  in  accordance   with approved  standards.   Till the enactment of the  All  India Council for Technical Education Act, 1987, whereby the AICTE was  established was a statutory body, the AICTE  was  func- tioning as a non-statutory body.  Keeping in view the scheme of  financial assistance of the Government of India for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

development  of technical education and the  recommendations made  by  the  Government  of  India  in  that  regard,  the Government of Madras, by GO No. 1174 dated July 4, 1957, set up a State Board of Technical Education and Training for the State  of  Madras [Now State of Tamil Nadu]  to  advise  the State  Government on general programme as well  as  specific individual schemes necessary for bringing about  coordinated development of Technical Edu- 197 cation and Training in the State at all levels.  By the said order   the  Government  of  Madras  also  constituted   the Directorate  of Technical Education as a separate unit  with the  Chief  Engineer, Public Works Department  (General  and Buildings)   as   the  ex-officio  Director   of   Technical Education.   The  Director of Technical Education  has  been entrusted  with the duties that were being performed by  the Director  of  Public  Instruction  in  respect  of  all  the Colleges  of  Engineering  and Technology  in  Madras  State including  Government Institutions as well as Aided  Private Institutions.   In addition, he has been entrusted with  the following duties: -               "(a)  To  supervise  and  direct  the   imple-               mentation  of  all  schemes  included  in  the               Second  Five  Year  Plan  for  expansion   and               improvement of the College of Engineering  and               Technology as well as Polytechnics;               (b)   To verify the fulfillment by all  Insti-               tutions   of   the  Conditions   attached   to               grant-in-aid   received  by  them   from   the               Government  of  India and/or  from  the  State               Government;               (c)   To initiate proposals for expansion  and               improvement   of   Technical   Education   and               Training  at all levels for the  consideration               by  the  Board  of  Technical  Education   and               Training  and  to  supervise  and  direct  the               implementation  of all recommendations by  the               Government; and               (d)   To maintain liasion between the Board of               Technical Education and Training of the  State               and the Southern Regional Committee of the All               India Council of Technical Education." 6.  In  discharge of his duties the  Director  of  Technical Education   submits  proposals  for  starting  new   Private Engineering  Colleges in Tamil Nadu to the State  Government for approval. 7.   In 1967 the Director of Technical Education, under  the Authority  of the State Government, issued the  Grant-in-Aid Code   of   the  Madras   Technical   Education   Department [hereinafter   referred  to  as  the   Grant-in-Aid   Code’] containing   rules  for  sanctioning  Grant-in-aid  to   all recognised technical educational institutional under private management.   Article 3 of the Grant-in-Aid Code  lays  down that  the  said rules shall apply to all  private  technical educational  institutions  recognised or  to  be  recognised hereafter  by the Government or any authority authorised  by the Government in this behalf from time to time.  Article  5 specifies  the  grants  may be  (i)  Technical  grants,  for teaching   which  are  recurring,  and  (ii)  Building   and equipment   grants,  for  the   construction,   enlargement, improvement and purchase of institutional buildings and  for purchase  of furniture, apparatus, chemicals and  appliances or  books  for  institutional libraries and  of  the  plant, materials, equipment and tools requires for laboratories and workshops,  which  are nonrecurring.  In Chapter II  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Grant-in-Aid Code the conditions of aid are laid down  which include  the  constitution  of the  Governing  Council,  its functions,  meetings,  endowments, selection  of  staff  and their conditions of service and admission of students,  etc. Article 21 in the said Chapter provides that "no new  course shall be started or intake to the approved courses increased without the prior approval of (1) the All-India Council  for Technical  Education and its Southern Regional Committee  or (2)  the Central Government in the Ministry of Education  or (3) the Govern- 198 ment/Director as the case may be." Chapter III of the Grant- in-Aid  Code deals with non-recurring grant  for  Buildings, while  Chapter IV deals with nonrecurring grants for  books, furniture and equipments and Chapter V deals with  recurring grants.   The  Director of Technical Education  is  the  au- thority  who has been entrusted with the enforcement of  the provisions of the Code. 8.   We may briefly refer to the relevant provisions of  the Act and the Rules. 9.   In  sub-section (3) of Section 1 of the Act it is  laid down  that  the Act applies to all  private  colleges.   The expression  "private college" is defined in sub-section  (8) of Section 2 as follows: -               "Private college", means a college  maintained               by  an educational agency and approved by,  or               affiliated  to,  a  university  but  does  not               include a college-               (a)established    or    administered     or               maintained  by the Central Government  or  the               Government  or  any  local  authority  or  any               university; or               (b)giving, providing or imparting religious               instruction   alone,   but   not   any   other               instructions.  "               Section 3 of the Act lays down: -               "New  private college to  obtain  permission.-               Save  as otherwise expressly provided in  this               Act,  no person shall, without the  permission               of  the  Government and except  in  accordance               with  the  terms and conditions  specified  in               such  permission, establish, on or  after  the               date of commencement of this Act, any  private               college:               Provided  that it shall also be  necessary  to               obtain  affiliation  of  such  college  to   a               university." 10.Section  4 requires that the educational agency of  every private  college proposed to be established on or after  the date  of  the  commencement  of  this  Act  shall  make   an application  to the Government for permission  to  establish such  college  and  it provides the  requirements  for  such application.   Section  5  makes  provision  for  grant   of permission by the State Government and under Section 6  such permission  is  deemed to have been granted  in  respect  of private college in existence immediately before commencement of  the Act on receipt of a statement under sub-section  (3) of Section 4. 11.In  the  Rules  the expression "College"  is  defined  in clause (b) of Rule 2 as under:-               "College " means and includes Arts and Science               College,  Teachers Training College,  Physical               Education College, Oriental College, School of               Institute  of  Social Work and  Music  College               maintained  by  the  educational  agency   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

             approved by, or affiliated to the  University.               " 12.The expression "Director" defined in clause (d) of Rule 2 to  mean the Director of Collegiate Education who  has  been assigned  various functions in relation to private  colleges under  the  Rules.   ’Mere is no reference  to  Director  of Technical Education in the Rules. 13.Before the High Court the State of Tamil Nadu as well  as the Union of India, who had been impleaded as respondents in Writ  Petition  No. 3205 of 1981 filed by the  College,  had taken  the  stand that the College was not  covered  by  the provisions of the Act and the Rules.  The stand of the 199 State  in  these appeals is,  however,  completely  opposite inasmuch  as  it has been contended on behalf of  the  State that  private  professional  colleges  imparting   technical education fall within the ambit of the Act and the Rules. 14.Before  we  proceed further we may briefly  refer  to  an earlier  Writ Petition No. 2756 of 1976 filed by  Kasilingam in   the  High  Court.   An  enquiry  was  pending   against Kasilingam  and  during  the pendency of  the  said  enquiry Kasilingam is alleged to have given a letter of  resignation on March 19, 1976 with a request that he be relieved of  his duties  from the College after six months from the  date  of that  letter.  This letter was accepted by the Principal  of the  College  who agreed to relieve Kasilingam  with  effect from September 19, 1976 but an order was issued on April  5, 1976   relieving  Kasilingam  with  immediate   effect   and enclosing a cheque for the salary payable to Kasilingam  for the remaining portion of the six months period.   Kasilingam submitted  a  memorandum  to  the  Governor  of  Tamil  Nadu complaining that the letter of resignation given by him  was not voluntary but was a result of coercion and threat.  This memorandum to the Governor was endorsed to the University of Madras for consideration.  It was dismissed by Syndicate  of the  Madras University on May 15, 1976 on the ground,  among others,   that  no  appeal  would  lie  to  the   Syndicate. Thereupon  Kasilingam filed Writ Petition No. 2756  of  1976 praying  for the issue of a writ of certiorari to quash  the order  of the University.  In the said Writ Petition it  was contended that having regard to the definition of  "College" occurring  in  the Rules the professional colleges  are  not included  and, therefore, the provisions of the Act and  the Rules would not apply to the College and the University  was the   competent  authority  to  deal  with  the  appeal   of Kasilingam.   The said contention was rejected by a  learned single  Judge  on the view that the expanded  definition  of "private College" as laid down in sub-section (8) of Section 2 cannot be abridged or curtailed by the Rules and that  the definition  of  "College"  occurring  in  the  Rules  is  an inclusive  definition of colleges.   Thereafter,  Kasilingam filed an appeal to the Government which was forwarded to the Additional Director of Technical Education for conducting an enquiry  and  submitting a report and after  receiving  such report  the  Government  allowed  the  appeal  and  directed reinstatement.  The College filed a Writ Petition No. 16  of 1979  against the said order of the Government and the  High Court  by order dated October 1, 1979 allowed the said  writ petition  on  merits and set aside the order of  the  State, Government.   Kasilingam filed an appeal [Civil  Appeal  No. 493  of  1980] against the said decision of the  High  Court which  was allowed by this Court and the order of the  State Government  to reinstate Kasilingam in service was  restored and the matter was remitted to the Government  to decide  as to whether Kasilingam is entitled to all arrears of pay  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

allowances upon his reinstatement in service. 15.Before  the High Court it was urged that the decision  in Writ  Petition  No. 2756 of 1976 holding  that  professional colleges are included in the definition of "private college" contained  in  sub-section  (8)  of Section  2  of  the  Act operates as res-judicata.  The said contention was  rejected by  the  High Court on the view that the  judgment  in  Writ Petition  No. 2756 of 1976 was one of dismissal of the  writ pe- 200 tition  and  the College could not be said to  be  a  person aggrieved  by  the judgment and that neither  die  Union  of India  nor the Government of Tamil Nadu were parties to  the Writ  Petition.  According to the High Court the conduct  of the  College  in  not questioning the  jurisdiction  of  the Government in entertaining the appeal on the ground that the Act  and the Rules are not applicable and fighting the  case on  merits at the subsequent stages could not in any way  be considered  as  a conduct which would preclude  the  College from agitating the question of the validity or applicability of the Act and the Rules. 16.On  an examination of the provisions of the Act  and  the Rules  as well as the Grant-in-Aid Code the High  Court  has held  that  professional private colleges  are  outside  the ambit of the Act and the Rules.  Referring to the definition of "private college" as contained in Section 2(8) of the Act and  the definitions of "College" as contained in Rule  2(b) and "Director" in Rule 2(b) the High Court has observed               "It is true that the Rules could not  restrict               the  application of the Act.  But we  are  not               reading the Rules as restricting the operation               of  the  Act, but as an instance  of  how  the               authorities who are to enforce the  provisions               of  the  Act have understood and  applied  the               provisions, keeping in view the intentions  of               the   Legislature.   All  along  the   Central               Government and the State Government were  pro-               ceeding  on the basis that the Act is not  are               professional institutions."               "The  understanding   of the State  Government               and  its  officers,  who  are  the   competent               persons  to enforce the Act and the Rules,  on               the applicability of the Act and the Rules  to               professional   and  technical  applicable   to               engineering       ring     colleges      which               institutions, though the Act had been in force               for a few years. only, could, in our  opinion,               justifiably   invoked  in   interpreting   the               provisions  of  the Act and the Rules  on  the               principle of ’communis error facit jus’." 17.The High Court has also held that the Central  Government had issued directions and instructions relating to technical educational  institutions  which are  referable  to  matters covered by Entry 66 of List I in the Seventh Schedule to the Constitution  in respect of which Parliament alone  has  the power  to  make  laws and that the  Union  Government  could exercise  its executive powers in respect of  those  matters even  in the absence of law made by the Parliament and  that power  of the State Legislature to make laws in  respect  of matters  falling under Entry 25 of List III of  the  Seventh Schedule being subject to the power conferred on  Parliament under Entry 66 of List I, the State Legislature had no power to   enact  a  law  governing  professional  and   technical educational  institutions  and, therefore, the Act  and  the Rules  could  not apply to professional and  technical  edu-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

cational institutions. 18.The said view of the High Court has been assailed  before us by the appellants in these appeals, viz., the members  of the teaching staff of the College as well as by the State of Tamil  Nadu.   Shri  P.P. Rao, the  learned  senior  counsel appearing  on behalf of the State of Tamil Nadu,  has  urged that  private colleges are covered by the Act and the  Rules and  the wide amplitude of the Act cannot be,  curtailed  by the  provisions contained in the Rules.  Shri Rao  has  also urged  that the matters dealt with in the Act do not  relate to  co-ordination  and  determination of  standards  in  in- stitutions for higher education for research 201 and  scientific and technical institutions  and,  therefore, the  Act  cannot  be said to be law in  respect  of  matters failing under Entry 66 of List I and that it relates to mat- ters failing under Entry 25 of List III. 19.We will first deal with the contention urged by Shri  Rao based  on  the provisions of the Act and the Rules.   It  is nodoubt true that in view of clause (3) of Section 1 the Act applies  to all private colleges.  The expression  "college" is,  however,  not  defined  in  the  Act.   The  expression "’private  college"  is defined in Clause (8) of  Section  2 which  can, in the absence of any indication of  a  contrary intention,  cover  all colleges including  professional  and technical  colleges.  An indication about such an  intention is, however, given in Rules wherein the expression "college" has  been defined in Rule 2(b) to mean and include Arts  and Science   College,  Teachers  Training   College,   Physical Education College, Oriental College, School of Institute  of Social  Work  and  Music  College.   While  enumerating  the various  types of colleges in Rule 2(b) the Rule making  au- thority    has   deliberately   reframed   from    including professional and technical colleges in the said  definition. It  has been urged that in Rule 2(b) the  expression  "means and  includes"  has  been  used  which  indicates  that  the definition is inclusive in nature and also covers categories which are not expressly mentioned therein.  We are unable to agree.   A  particular expression is often  defined  by  the Legislature  by  using  the word ’means’ or  the  word  ’in- cludes’.  Sometimes the words ’means and includes’ are used. The use of the word’ ’ indicate that "definition is a  hard- and-fast  definition. and no other meaning  can be  assigned to  the  expression that is put down  in  definition."  [See Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and Reclamation  Corpn.   Ltd.  v.  Presiding  Officer,   Labour Court,(1990  (3) SCC 682, at p. 717].  The  word  ’includes’ when used, enlarges the meaning of the expression defined so as  to  comprehend  not only such  things  as  they  signify according  to  their natural import but  also  those  things which  the  clause declares that they  shall  include.   The words ’means and includes’, on the other hand, indicate  "an exhaustive  explanation  of  the  meaning  which,  for   the purposes  of the Act, must invariably be attached  to  these words  or expressions."’ [See : Dilworth v  Commissioner  of Stamps,   (1899  AC  99  at  pp.  105-106  (Lord   Watson);1 Mahalakshmi  Oil Mills v. State of Andhra Pradesh, (1989)  1 SCC 164, at p. 169].  The use of words ’means and  includes’ in  Rule 2(b) would, therefore, suggest that the  definition of "college" is intended to be exhaustive and not  extensive and would cover only the educational institutions failing in the categories specified in Rule 2(b) and other  educational institutions arc not comprehended.  In so far as engineering colleges  am con there exclusion may be for the reason  that the opening and running of the private engineering  colleges

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

are controlled through the Board of Technical Education  and Training   and  the  Director  of  Technical  Education   in accordance with the directions issued by the AICTE from time to time.  As noticed earlier the Grant-in-Aid Code  contains provisions which, in many respects, cover the same field  as is  covered  by  the Act and the  Rules.   The  Director  of Technical Education has been entrusted with the functions of proper implementation of those provisions.  There is nothing to   show  that  the  said  arrangement  was   not   working satisfactorily so as to be 202 replaced  by the system sought to be introduced by  the  Act and  the  Rules.   Rule 2(d), on the other  hand,  gives  an indication  that  there  was no  intention  to  disturb  the existing arrangement regarding private engineering  colleges because  in that Rule the expression ’Director"  is  defined top  mean the Director of Collegiate Education The  Director of   Technical  Education  is  not  included  in  the   said definition indicating that the institutions which are  under the control of Directorate of College Education only are  to be   covered  by  the  Act  and  the  Rules  and   technical educational institutions in the State of Tamil Nadu which am controlled by the Director of Technical Education arc not so covered. 20.  The  Rules  have  been made in exercise  of  the  power conferred by Section 53 of the Act.  Under Section 54(2)  of the  Act  every rule made under the Act is  required  to  be placed  on  the table of both Houses of the  Legislature  as soon as possible after it is made.  It is accepted principle of  statutory construction that "rules made under a  statute arc  a  legitimate  aid to construction of  the  statute  as Contemporanea Expositio " [See : Craies on Statute Law,  7th Edition pp. 157-158; Tata Engineering and    Locomotive Company Ltd. v. Gram Panchayat  Pimpri Waghere. 1977 (1) SCR 306,  at  p.  317].  Rule 2(b) and Rule  2(d)  defining  the expression "College" and "Director" can, therefore, be taken into   consideration   as   contemporanea   exposition   for construing the expression "private college" in Section  2(8) of the Act.  Moreover, the Act and the Rules form part of  a composite scheme.  Many of the provisions of the Act can  be put  into  operation only after the relevant  provisions  or form  is  prescribed in the Rules.  In the  absence  of  the Rules  the Act cannot be enforced. If it is held that  Rules do not apply to technical educational institutions the  pro- visions  of  the Act cannot be enforced in respect  of  such institutions.   There  is,  therefore, no  escape  from  the conclusion  that professional and technical educational  in- stitutions  are excluded from the ambit of the Act  and  the High Court has rightly taken the said view.  Since we  agree with  the  view  of the High  Court  that  professional  and technical  educational institutions are not covered  by  the Act  and  the Rules, we do not consider it necessary  to  to into  the  question whether the provisions of the  Act  fall within  the ambit of Entry 25 of List III and do not  relate to Entry 66 of List I. 21.  Shri Sitaramaiah, the learned senior counsel  appearing for  the  appellant in Civil Appeal No. 10002 of  1983,  has urged that ,Rule 11 which relates to conditions of  service, etc., of teachers and other persons in college is  referable to Section 17 of the Act and there is nothing in Section  17 and  Rule  11 to indicate that they are  confined  in  their application  to  colleges other than  technical  educational institutions and that there is no reason why the  conditions of  service of teachers in technical education  institutions should not be governed by Rule 11. We find no substance   in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

this  contention.   Once  it  is  found  that  on  a  proper construction   the  Act  and  the  Rules  do  no  apply   to professional  and  technical educational  institutions  then none of the provisions of the Rules, including Rule 11,  can be  said to apply to professional and technical  educational institutions and it is not Possible to say that some  of the provisions  of the Rules we applicable while others  do  not apply to such institutions. 22.For the reasons aforementioned we 203 do  not  find any merit in these appeals and  the  same  are accordingly dismissed. No order as to costs. 204