Judgement Pronounced by Shivaraj Patil, J.
1. Heard the learned counsel for the parties.
2. In these appeals, in the tight of the contentions raised by the parties, the only question that needs to be answered is, whether Bharathidasan University, Palkalai Perur, Tiruchirappalli in this State of Tamil Nadu, should seek approval of AH India Council for Technical Education to start technical courses in the University or to start a Technical Institute to conduct technical courses. For convenience, hereafter we will refer to the said University as "University" and the All India Council for Technical Education as "Council".
3. Writ Appeal No.1308 of 1998 is filed by the University and Bharathidasan Institute for Engineering and Technology. Writ Appeal No.1309 of 1998 is filed by a student, who was respondent No.4, impleaded in the Writ Petition No.14558 of 1998 and Writ Appeal No.1326 of 1998 is filed by another student, who was not a party in the writ petition, but after seeking leave from this Court in C.M.P.No.14256 of 1998, In these appeals, the appellants are aggrieved by the order of the learned single judge, dated 5.10.1998 passed in Writ Petition No.14558 of 1998.
4. Since the learned single judge has stated in sufficient details the facts leading to the filing of the writ petition, we will state them in brief to the extent they are considered necessary and relevant for the purpose of disposal of this appeal. The council filed the Writ Petition No. 14558 of 1998 seeking a writ of mandamus forbearing the University from running/conducting any Technical Courses and programmes in its Institute of Engineering and Technology (the second respondent in the Writ Petition). It is the case of the council that it was set up in the year 1945 by a Resolution of Government as a National Expert Body to advise the Central and State Governments for ensuring co-ordinated development of technical education in accordance with approved standards. The Council became a statutory body as per (The) All India Council for Technical Education Act, 1987 (for short, "the Act"). Exercising the powers conferred by sub-section (1) of section 23 of the Act, the Council made regulations, called the All India Council for Technical Education (Grant of approval for starting new technical institutions, introduction of courses or programmes and approval of intake capacity of seats for the courses or programmes) Regulations, 1994 (hereinafter referred to as "the Regulations). These Regulations were published in the official Gazette of India Extraordinary Part III-Section 4 on 23.11.1994. As per Regulation 4(1) of the Regulations, no new technical institution or University Technical Department, shall be started; or no course or programme shall be introduced by any technical institution, University including a deemed University or University Department or College; or no technical institutions, Universities or deemed Universities or University Departments or Colleges shall continue to admit students for degree or Diploma courses or programmes; or no approved intake capacity of seats shall be increased or varied, except with the approval of the Council. As per Regulation 4(2), application for grant of approval, under sub- Regulation (1) of the same Regulation, shall be made by Government Institutions, Government-aided Institutions, deemed Universities, University Departments or Colleges or Registered Societies/Trusts in respect of professional colleges. According to the Council, in the light of the Regulations, no Technical Institute/Department shall be started by the University, without its prior approval. It is also stated that all Technical Institutions in Tamil Nadu, including Engineering Colleges, are approved by the Council, although they are affiliated to different Universities. The Council came to know that the University proposed to start a Technical Institution in the name of 'Bharathidasan Institute of Engineering and Technology' represented by the Registrar of the University, without obtaining the prior approval of the Council. The said Institute created its own scheme bypassing the common admission procedure followed by the State of Tamil Nadu. As per the Prospectus issued by the said Institute. l/3rd seats will be free seats and 2/3rd seats will be payment seats, while reserving 5% of seats for NRIs. It prescribed the selection procedure by conducting of an Entrance Examination, Counselling and seat Allotment. Even it prescribed a different fee-structure, in that free seat students will have to pay Rs.9,000 per annum, students in payment seat category will have to pay Rs.35,000 per annum and NRI candidates will have to pay 5000 US $ per annum. The Prospectus has also made provision for sponsored candidates, without specifying their number, who will have to pay Rupees one lakh per annum. Apart from these fees, the Prospectus indicates the collection of amount under other heads, which are not normally charged by the self-financing Engineering Colleges in the State of Tamil Nadu. The Council strongly contended that the University has no jurisdiction to start an Engineering Course, when no approval had been granted by the Council. It is the further case of the Council that even though the Bharathidasan University Act, 1991 contains the provision for affiliation of Technical Institution, in view of the provisions of the AICTE Act, the provisions of the University Act became, to that extent, inoperative and unenforceable. The Supreme Court in various cases has declared the supremacy of the Central Act in such cases; the University is an Autonomous Institute and. therefore, it becomes a Technical Institute within the meaning of Section 2(h) of the Act; the University cannot start a course on the lines of a self-financing institute. The Council also stated in the writ petition that long before the filing of the writ petition, it issued a notice on 22.5.1998 to the Registrar of the University not to proceed with the admission process without its approval. But, ignoring the same, the University initiated steps to start a Technical Institute in the name of the second respondent in the writ petition. Hence, the council was compelled to file the writ petition.
5. When the writ petition came up for admission, the learned single judge ordered Notice of Motion and granted interim injunction restraining the University and its Institute from admitting any student. An Advocate of this Court filed W.M.P.No.22872 of 1998 to implead him in the writ petition stating that he had filed a Writ Petition to serve public interest, questioning the right of the University to admit students without the permission of the council; The Division Bench of this Court dismissed the said Writ Petition stating that since the council is taking necessary action, it was not necessary to entertain the writ petition. The said W.M.P. was allowed and he was ordered to be impleaded as Respondent No.3. A student filed another W.M.P. viz., W.M.P.No.22885 of 1998 for impleading. It was also allowed and she was impleaded as Respondent No.4 who has filed W.A.No.1309 of 1998.
6. With the consent of the learned counsel appearing for the parties, the learned single Judge took up the writ petition itself for final hearing, although the W.M.P. for injunction was posted. After hearing the learned counsel for the parties, by the order dated 5.10.1998, the learned single Judge allowed the writ petition, which order is under challenge in these Writ Appeals.
7. Shri R. Krishnamoorthi, the learned Senior Counsel representing the appellants (The University and its Institute) in Writ Appeal No. 1308 of 1998, at the outset submitted that the limited question that is raised before the learned single judge in the writ petition as well as in the writ appeal is only whether the Body like University, created under a statute, should also seek prior approval of the Council in starting Technical Courses in the University. He submitted that the University has not challenged either the validity of the Regulations or the competency of the Council to frame Regulations by virtue of the power conferred on it under Section 23(1) of the Act. He urged referring to Sections 2(g), (h), (i), Section 10(g), (k), Sections 11, 22 and 23 of the Act that University is excluded from the purview of the Council, so far it relates to seeking of prior approval for starting a Technical Institute as a Department of the University or Technical Courses in the University. He emphasised that Section 2(h) of the Act excludes the University from the meaning of "technical institution'. According to the learned senior counsel, in the Act in the various provisions pointed out above, a distinction is made between University and 'technical institution'. The Legislature advisedly excluded university wherever it intended to exclude from the purview of the Council and seeking of prior approval of the council is one such matter which was excluded. The learned senior counsel submitted that the Regulations framed so as to include the university also in seeking its prior approval for starting a technical institute or a course by the University or in the University, were beyond the power or authority conferred on it under Section 23 of the Act; looking to the various provisions of the Act, it cannot be construed that the Council could make regulations so as. to include University also to seek prior approval to start a Technical Institute or Technical Courses in the University; hence Regulations so framed insisting University to take prior approval of the Council cannot be given effect to. He submitted that the University is bound to follow the provisions of the Act, Rules and Regulations in all other respects to maintain the planned and co-ordinated development of Technical Education, except seeking the prior approval of the Council. According to the learned counsel, if the council intended to include University also to insist seeking prior approval, it can be done only by amending the Act; in view of the provisions of the Act as they are, nothing can be read in them so as to confer power on the council, which otherwise does not possess. In support of these submissions, the learned senior counsel placed reliance on the following judgments:-
1. Hukam Chand v. Union of India, ; 2. Nedurimilli Janardhana Reddy v. Progressive Democratic Students Union, ; 3. General Officer, Commanding-in-Chief v. Subhash Chandra, ; 4. Reference Under Section 48A of the
Criminal Appeal (Northern Ireland) Act, 1968, (No.I of 1975), 1976 (2) All E.R. 937; 5. Mccldowney v. Forde , 1969 (2) All E.R. 1039; 6. Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96; 7. M/s. Oswal Agro Mills Ltd., v. Collector of Central Excise, and 8. Baburam v. State of U.P., .
He also drew our attention to G.P. Singh's 'Interpretation of Statutes', 6th Edition, Page 630.
8. Shri P. Jayaraman, the learned senior counsel for the appellant in W.A.No.1326 of 1998, stated that it is a fight between two authorities, i.e., the council and the University for prestige with an element of ego and in this fight, the students who have taken admission bona fide to study new technical courses started by the University, which were not available anywhere; 70 students who had secured admissions in other technical institutions or Colleges, left the courses and took admission in the Institute of the University hoping for better prospectus. He also argued supporting the argument of shri. R. Krishnamoorthi the learned Senior Counsel, in contending that the University stood excluded from the domain of the Council in the matter of seeking prior approval to start a technical institute or technical course in the University. The learned Senior Counsel also cited a few decisions in support of his submissions.
9. Shri. V. Kathiravan, the learned counsel for the appellant in W.A.No.1309 of 1998, while adopting the arguments of the learned senior counsel made in the other appeals, read section 2(h) of the Act and urged, the University is not a 'technical institution' and in the absence of the Central Government issuing a notification in the Official Gazette declaring the University or the Institute of the University as the 'technical institution', the council has no power to insist the University to take prior approval to start Institute or course.
10. Shri N.R. Chandran, the learned Additional Solicitor- General of India, contended that Bharathidasan University and Bharathidasan Institute of Engineering and Technology are separate entities, as can be seen from the prospectus issued by the said Institute; only University imparting technical education is excluded from the meaning of 'technical institution' and not all the Universities as seen from Section 2(h) of the Act itself, if all the universities in the country are to start Technical Institutions and Technical Courses on their own, without the prior permission of the Council, the very existence of the Council may become meaningless; without challenging the validity of the Regulations, it is not open to the University to take up a stand that it need not seek prior approval of the Council to start a Technical Institute or Technical Courses in the University; the Regulations were very much in force when the courses were started by the University; without challenging the Regulations, the University could not start the technical institute or technical courses in anticipation that the Regulations will be struck down. He further submitted that the act of the University or the students joining the courses cannot be said to be bona fide; even before the starting of the Courses, the council had asked the University not to start the courses, it had also warned the students and published in newspapers stating that the University had no approval of the Council for making admission to the technical courses. Hence, the appellants cannot now plead bona fides in their favour so as to claim sympathy of the Court or to support their claim on the ground of equities. He also submitted that in the light of the Objects and Reasons and reading the provisions of the Act, it is clear that the University also is required to seek prior approval of the Council in the matter of starting new Technical Institute or Technical Courses; Sections 10 and 23(1) of the Act clearly conferred general, power on the Council to frame Regulations so as to include Universities also within the purview of it in the matter of seeking prior approval, that apart for the regulations could be framed in particular in relation to the other matters stated in Section 23(2) of the Act. He submitted that all other Technical Institutions, including the College of Engineering, Anna University, Madras, Madras Institute of Technology-Constituent College of Anna University, Madras, Annamalai University, Annamalainagar, and Jawaharlal Nehru Technological University's College of Engineering, Anantapur, A.P. also had taken the prior approval of the Council to start Technical Courses; even at one stage the Syndicate of the first Appellant (Bharathidasan) University passed a resolution to seek approval of the Council for starting Technical courses; but subsequently, the University did not proceed to seek approval, and started the Technical Institute and admitted the students without approval of the Council; it is not known why the said Resolution of the Syndicate was not given effect to. He relied on the following decisions in support of his submissions:-
1. State of Kerala v. M.K. Kunhikannan Nambiar, ; 2. Yadlapati Venkateswarlu v. State of A.P,. ; 3. State of Tamil Nadu v. Adhiyaman Educational and Research Institute, ; 4. S.K. Singh v. V.V. Giri, ; 5.
D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323; 6. Indian Council for Enviro-Legal Action v. Union of India, ;
7. Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., AIR 1987 SC 1023; 8. S. Gopal Reddy v. State of A.P., ; 9. Medical Council of India v. State of Karnataka, ; 10. Thapar Inst. of Engineering Technology v. State of Punjab, ; 11. Unnikrishnan v. State of A.P., 1993 (1) SCC 648; 12. C.B.S.E. & Anr. v. P. Sunil Kumar & Ors., 1998 (4) SC 572
11. Shri G. Rajagopal, the learned counsel for the respondent R. Ravi in these writ appeals, submitted that when the University cannot give affiliation to any Technical Institution after the Act came into force, it cannot do so for itself; the prospectus issued by the Bharathidasan Institute of Engineering and Technology (the appellant No.2 in W.A.No.1308 of 1998) showed that it is autonomous; Section 2(g) of the Act is more relevant than Section 2(h) of the Act in resolving the controversy. He also read Section 11 of the Act to say that the Council must exercise its power from the beginning in relation to Technical Education and the University cannot be an exception so as to say that it need not seek approval of the council; even Anna Technical University seeks approval for all courses to be started; the Bharathidasan University has got its Engineering Colleges affiliated to it; it is clear from the very prospectus produced that they seek the approval of the Council; no University can start an institute which has the Character of a self-financing college.
12. Shri. R. Krishnamurthi, the learned senior counsel, in reply, submitted that the statutes of the University will be amended in course of time; starting of the Technical Institute by the University as its Department is only the beginning. He submitted even though the validity of the Regulations is not challenged, objections can be taken as and when they are sought to be put against the University. He sought support for this submission from the decisions in Kiran Singh v. Chaman Paswan, and Sunder Das v. Ram Prakash, AIR 1977 SC 1202. He reiterated that the University shall follow all other norms consistent with the Act and the Regulations.
13. Shri P. Jayaraman, the learned senior counsel for the appellant in W.A.No.1326 of 1998, in reply took us through some provisions of (The) All-India Institute of Medical Sciences Act, 1956, (The Indian) Medical Council Act, 1956, (The) Indian Medicine Central Council Act, 1970 and (The) National Council for Teacher Education Act, 1993 to state that in these Acts, there are specific provisions so as to include university in the matter of seeking prior approval or permission of the Council in the matter of starting courses or Colleges by Universities; this being not the position in the Act, it must be taken that the University is not required to take prior approval of the Council. He relied on the following decisions in support of his contentions.
14. We have carefully considered the submissions made by the learned counsel for the parties and in order to appreciate their rival contentions on their relative merits, we will do well in the first place referring to the provisions of the Act having a bearing on the question to be answered, to resolve the controversy that has arisen between the Council and the University, viz., whether the University is also required to take prior approval of the Council to start a technical Institute or technical course in the University in its department. The preamble of the Act reads:
"An act to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith".
Section 2(g) of the Act reads;
" 2, In this Act, unless the context otherwise requires-
(g) technical education means 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''.
Section 2(h) is to the effect, "technical institution" means 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.
Section 10 of the Act, to the extent it is relevant for the present purpose, reads:-
"10. Functions of the Council. It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for me purposes of performing its functions under this Act, the Council may.
(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) co-ordinate the development of technical education in the country at all levels;
(c) allocate and disburse out of the fund of the Council such grant on such terms and conditions as it may think fit to.
(i) technical institutions, and
(ii) Universities imparting technical education in co-ordination with the commissions;
(d)... ... ...
(e)... ... ...
(f)... ... ...
(g) evolve suitable performance appraisal systems 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 instruc-tions, 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 con-cerned;
(l) ...... ......
(m) ...... ......
(n) ...... ......
(o) provided guidelines for admission of students to technical institutions and Universities imparting technical education;
...... ...... ...... ......
Section 11 (1) of the Act reads:
" 11. Inspection:- (1) For the purposes of ascertaining the financial needs of a technical institution or a University or its standards of teaching examination and research, the Council may cause an inspection of any department or departments of such technical institution or University to be made in such manner as may be prescribed and by such person or persons as it may direct."
Section 22(1) and (2), to the extent they are relevant for the present purpose read:
"22. Power to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) ...... ......
(b) the inspection of technical institutions and universities;
(c) ........ .........
(d) ........ .........
(e) ........ .........
Section 23 of the Act, to the extent it is relevant for the present purpose, reads :-
"23. Power to make Regulations: (1) The Council may, by notification in the official Gazette, make regulations not inconsistent with the provisions of this Act, and the rules generally to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-
15. Before examining these provisions of the Act, to appreciate the contentions advanced on behalf of the parties, we think it useful and appropriate to bear in mind the decisions of the Apex Court in interpreting statutes. The Supreme Court in a recent judgment in S. Gopal Reddy v. State of A.P., , while dealing with a case arising out of Dowry (Prohibition) Act, 1961, in paragraph 10 has stated thus:
"10. It is a well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr. Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of 'dowry' punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, 'demand of dowry' as a consideration for a proposed marriage would also come within the meaning of the expression 'dowry' under the Act. If we were to agree with Mr. Rao that it is only the 'demand' made at or after marriage which is punishable under section 4 of the Act, some serious consequences, which the Legislature wanted to avoid, area bound to follow. Take for example a case where the bride-groom or his parents or other relatives make a demand of dowry during marriage negotiations and later on after bringing the bridal party to the bride's house find that the bride or her parents or relatives have not met the earlier 'demand' and call off the marriage and leave the bride's house should they escape the punishment under the Act. The answer has to be an emphatic 'no'. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run countrary to the accepted principles relating to the interpretation of statutes."
In the same judgment it is stated that the Judges will be saved from trouble, if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftman, but he must set to work to find out. the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature. A Judge can and should iron out the creases without altering the material of which the Act is woven.
16. The Apex Court in National Textile Corporation Ltd. v. Sitaram Mills Ltd., in paragraph 39 stated that
"it is a well-known rule of construction that in dealing with such a beneficient piece of legislation, the courts ought to adopt a construction which would subserve and carry out the purpose and object of the Act rather than defeat it."
17. As can be seen from the preamble of the Act, Section 10 and other related provisions, the purpose and object of the Act is the proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. The thrust is on the technical education system throughout the country and not on technical institution alone. The learned senior counsel for the appellants heavily relied on Section 2(h) in support of their defence and claimed that university is not included within the meaning of 'technical institution' and as such, the Regulations insisting upon the University to seek prior approval to start a technical institute or technical course in the University, are beyond the scope of the statute itself, and the Council did not have authority to frame such regulations, so as to bring the university within its jurisdiction and power to ask the university to take prior approval before starting technical course in the University or starting a technical institute. A plain reading of Section 2(g) of the Act shows that 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, are included within the meaning of technical education". The new-courses started by the University in the case on hand certainly come within the meaning of "technical education". A closer reading of section 2(h) of the Act defining ''technical institution" shows that 'technical institution' means an institution which offers courses or programmes of technical education, not being a University, but includes such other institutions as the Central Government may, in consultation with the Council declare as technical institutions. Section 2(i) of the Act defines 'University'. Based on Section 2(h) of the Act, the learned Senior Counsel for the appellant emphasised that a University is not a technical institution. Looking to Section 2(h) and Section 2(i) of the Act, it is clear that the Act contemplates 'technical institution' ' a University imparting technical education' and a 'University'. At various places in the Act, a distinction is made between 'technical institution' and 'University imparting technical education". For instance, Section 10(c)(i) and (ii) of the Act refers to 'technical institutions' and 'Universities imparting technical education in co-ordination with the Commission'; Section 10(o) of the Act, which speaks of providing guidelines for admission of students to 'technical institutions' and 'Universities imparting 'technical education'. 'University' is separately defined under Section 2(i) of the Act. Definition or meaning of the words given in the definition Section are not by themselves determinative of the applicability or non-applicability of the provisions of the Act. Definitions or meanings given of the words in the definition Section should be understood accordingly, wherever the words occur in the Act, unless the context otherwise requires. Section 2(h) of the Act, defining 'technical institution' cannot be read in isolation, so as to exclude applicability of the provisions of the Act and the Regulations to a University. There cannot be a truncated approach in deciding whether prior approval of the Council is required or not for the technical courses to be introduced or a technical institute to be started by a University or in a department of the University merely on the basis of definition of 'technical institution' contained in Section 2(h) of the Act. The purpose and object of the Act sought to be achieved, the entire scheme of the Act and the background in which the enactment was made and the mischief sought to be eliminated are to be analysed and examined to conclude whether the University also is to take prior approval of the Council, in view of the provisions contained in the Act read with the Regulations. Having regard to the object and purpose of the Act and the entire scheme, it is clear that the Council is entrusted with the planned and co-ordinated development of the technical education system throughout the country, without exception to either University or any other institution. As is evident from Section 10 of the Act, it shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under the Act. Further, the Council may 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 and co-ordinate the development of technical education in the country at all levels. When it says 'at all levels', it includes 'at University level' as well, in our opinion. Under Section 11 of the Act, the Council has power to inspect technical institutions or University. Section 22 of the Act has conferred rule making power on Central Government to make rules to carry out the purposes of the Act. Section 22(2) (b) of the Act speaks of the inspection of technical institutions and Universities as well. Section 23 of the Act has conferred power on the Council to make regulations generally to carry out the purposes of the Act. A survey of the provisions of the Act, keeping in view the object and purpose, the status, powers and functions of the Council, in our view, the All India Council for Technical Education (Grant of Approval) for starting technical institutions, introduction of courses or programmes and approval of intake capacity of seats for the courses or programmes (Regulations, 1994) mandating the University also to take prior approval before starting a technical course or a technical institute, are only to supplement the provisions of the Act and subserve the object and purpose of the Act. Saying otherwise, that the University need not take the approval from the Council, would lead to anomalous results and even may defeat the very purpose and object of the Act. i.e., planned and co-ordinated development of technical education in the country.
18. The Full Bench of the Andhra Pradesh High Court in M. Sambasiva Rao v. Osmania University, Hyderabad, 1997 (1) Alt 629, referring to the various provisions of the Act extensively and also to the Regulations and the decisions of the Apex Court in an identical situation, in paragraph 50, has held that Osmania University has to seek prior approval of the Council to start technical course or technical institute as required under Regulation 4 of the Regulations.
19. The learned single Judge, in paragraph 11 of the order under appeal, referring to the recent decision of the Apex Court in Medical Council of India v State of Karnataka, , has stated thus:-
"11. In a recent decision of the Honourable Supreme Court reported in Medical Council of India v. State of Karnataka, the effect of the Regulations under the Act came for consideration. In that case, the Medical Council of India Limited the number of seats to educational institutions. But the State Government passed an enactment which increased the intake. The question was, how far the State enactment can overlap the Regulations of the Medical Council of India. In paragraph 24 of the judgment, it was held thus:-
"The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provisions of the Act even though the State Act may be relatable to Entry 25 or 26 of List III (Concurrent List). Regulations framed under Sec.33 of the Medical Council Act with the previous sanction of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a Regulation falls within the purposes referred under Section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to Clauses (fa) (fb) and (fc) which have been introduced by the Amendment Act of 1993 w.e.f. 27.8.1992 and clauses (j), (k) and (l) of Section 33. It may be stated that the aforesaid decision in supra was
also followed by their Lordships in Medical Council of India v State of Karnataka, , Once it is found that the AICTE Act has occupied the field, the State Government cannot "even legislate on the subject and without the permission of the petitioner, it cannot start a technical institution, no can it admit students for B.E. or other Technical Courses."
20. The Supreme Court in State of T.N. v Adhiyaman Educational and Research Institute, has held that the legislation with regard to co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. It is further held that the expression 'Coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution of India does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development and, therefore, coordination includes power to do all things which are necessary to present what would make coordination either impossible or difficult and this power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. We get substantial support from this decision for the view we are taking, as it deals with the provisions of the very Act. Paragraph 22 of the said judgment reads:-
"22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to derecognise the institutions where norms and standards laid down by and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly, that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner, and that all institutions in the country are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well known, consists of regions and population which are at different levels of progress and development or to put it differently, at differing levels of backwardness. This is not on account of any physical or intellectual deficiency but for want of opportunities to develop and contribute to the total good of the country. Unnecessarily high norms or standards, say for admission to the educational institutions or to pass the examinations, may not only deprive a vast majority of the people of the benefit of the education and the qualification, but would also result in concentrating technical education in the hands of the affluent and elite few and in depriving the country of a large number of otherwise deserving technical personnel. It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centred around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional committees, at present, at least, in four major geographical zones and the constitution and the functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the Stales and the professional "bodies on it which have also representation from different Stales and regions, they have a say in the constitution and functions of these Committees as well. What is further important to note is that the subject covered by this statute is fairly within the scope of Entry 66 of the List I and Entry 25 of List III. Further, these regulations alongwith other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before Parliament. Hence, on the subjects covered by this statute, the State could not make a law under Entry II of the List II prior to Forty-Second Amendment nor can it make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution."
The Apex Court again in paragraph 30 of the same judgment has stated thus:-
"30. A comparison of the Central Act and the University Act will show that as far as the institutions imparting technical education are concerned, there is a conflict between and overlapping of the functions of the Council and the University. Under Section 1.0 of the Central Act, it is the Council which is entrusted with the power, particularly, to allocate and disburse grants, to evolve suitable performance appraisal systems in- cooperating norms and mechanisms for maintaining accountability of the technical institutions, laying down norms and standard for courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions, providing guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declaring institutions at various levels and types fit to receive grants, advising the Commission constituted under the Act for declaring technical educational institutions as deemed universities, setting up of National Board of Accredition to periodically conduct evaluation on the basis of guidelines and standards specified and to make recommendations to it or to the Council of the Commission or other bodies under the Act regarding recognition or de-recognition of the institution or the programme conducted by it. Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the engineering colleges. As has been pointed out earlier, the Central Act has been enacted by Parliament under Entry 66 List I to coordinate and determine the standards of technical institutions as well as under Entry 25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the engineering colleges and the conditions for grant and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act."
Paragraph 41(i) of the said judgment reads:-
"41. What emerges from the above discussion is as follows:-
(i) The expression 'Coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'Coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention,."
There is enough expression and indication in the aforementioned judgment of the Apex Court to say that proper planning and coordinated development of the technical education system throughout the country falls within the domain of the Act and governed by the provisions of the Act, Rules and Regulations made thereunder. We are told that the Rules are not yet made under the Act.
21. The argument that in the absence of specific provision in the Act so as to include University also as coming within the meaning of 'technical institution', unlike in other Acts such as (The) All India Institute of Medical Sciences Act, 1956, (The) Indian Medicine Central Council Act, 1970 and The National Council for Teacher Education Act, 1993, it should be held that the regulations go beyond the provisions of the Act, cannot be accepted in the light of the judgment of the Supreme Court in State of T.N., v. Ananthi Ammal, of the said judgment reads:
Constitution Bench held that Article 14 does not authorise the striking down of the law of one State on the ground that, in contrast with the law of another State on the same subject, its provisions are discriminatory nor does it contemplate the law of the Centre or of a State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two. The sources of authority for the two being different, Article 14 can have no application. In Sant Lal Bharati v State of Punjab, , this was reiterated."
22. It is a crystallised rule of interpretation of Statute that the text and context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object which the statute intended to achieve while interpreting any of the provisions of the Act. We are also not in a position to accept the argument that the Regulations are unenforceable and ineffective on the ground that they go beyond the scope of the provisions of the Act so far they relate to including Universities, insisting upon them to seek prior as approval for starting technical courses or a technical institute. The Supreme Court in Reserve Bank of India v Peerless General Finance and Investment Co. Ltd,. AIR 1987 SC 1023 has expressed that the definition should be looked at as a whole in the setting of the entire Act by reference to what preceded the enactment and the reasons for it and that interpretation of a statute must depend on the text and the context- which are the bases of interpretation. We do better by extracting paragraph 33 of the said judgment, which reads:-
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No pan of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the Court's construction."
With this background, we proceed further in the matter.
23. Section 10 of the Act clearly states that it shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under the Act, the Council may do various things enumerated under Section 10 of the Act in addition to taking all such steps generally as are considered appropriate to achieve the object of the Act. Section 10(k) of the Act says that the Council may grant approval for starting new technical institution and for introduction of new courses or programmes in consultation with the agencies concerned. Introduction of such new courses or programmes, even may be in the University in its department or in a technical institute to be established separately by the University. At any rate, a reading of section 10 of the Act in its entirety does not show that Universities are excluded from the purview of the Council, even in the matter of granting approval for starting the new technical institution or for introduction of new courses or programmes. Section 22 of the Act had conferred power on the Central Government to make Rules, such rules may be made to carry out the purposes of the Act. Under Section 22(2) of the Act, in particular, and without prejudide to the generality of the power under Section 22(1) of the Act, such rules may provide for all or any of the matters stated therein. Section 22(2) (b) of the Act speaks of the inspection of technical institutions and Universities as well. Similarly, Section 23(1) of the Act has given power to the Council to make regulations not inconsistant with the provisions of the Act and the rules, generally to carry out the purposes of the Act. Nothing was shown to us to say that the Regulations are inconsistent with the provisions the Act. On the other hand, the regulations, in our view, advance the purposes of the Act. Under Section 23(2). of the Act, in addition to the regulations made generally under Section 23(1) of the Act, the Council could frame regulations relating to the matters stated therein. In this regard, it is useful to refer to yet another judgment of the Supreme Court in the case of Shiv Kirpal Singh and others v V.V. Giri, . In paragraph 41 of the said judgment, dealing with the words "without prejudice to the generality of the provisions of sub- sec.(1)", the Apex court has stated thus:-
"It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision."
24. Yet in another decision in D.K. Trivedi and Sons v State of Gujarat, AIR 1986 SC 1323, in paragraph 32, it is stated thus:-
"32. There is no substance in the contention that no guidelines are provided in the 1957 Act for the exercise of the rule-making power of the State Governments under S.15(1). As mentioned earlier, S.15(1) is in pari materia with S.13(1). Section 13, however, contains sub-section (2) which sets out the particular matters with respect to which the Central government may make rules "In particulars, and without Prejudice to the generality of the foregoing power," that is, the rule-making power conferred by sub-section (1). It is well settled that where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power and do not in any way restrict the general power. Section 2 of the Defence of India Act, 1939, as amended by S.2 of the Defence of India (Amendment) Act, 1940, conferred upon the Central Government the power to make such rules as appeared to it "to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community." Sub-section (2) of S.2 conferred upon the Central Government the power to provide by rules or to empower any authority to make orders providing for various matters set out in the said sub-section, this power was expressed by the opening words of the said sub- section (2) to be "without prejudice to the generality of the powers conferred by sub-sec.(1)". In King Emperor v. Sibnath Banerji 1945 (72) Ind App 241: AIR 1945 PC 156, the Judicial committee of the Privy Council held at pages 258-9 of IA: at p. 160 of AIR :
"In the opinion of their Lordships, the function of sub- s. (2) is merely an illustrative one; the rule-making power is conferred by sub-s. (1), and the rules which are referred to in the opening sentence of sub-s. (2) are the rules which are authorised by, and made under sub-s.(1), the provisions of sub-s. (2) are not restrictive of sub-s.(1), as, indeed, is expressly stated by the words 'without prejudice to the generality of the powers conferred by sub-s.(1)."
"The above proposition of law has been approved and accepted by this Court in Om Prakash v. Union of India, and Shiv
Kirpal Singh v V.V. Giri, :"
25. In view of this legal position, the Council had the power to frame Regulation 4 of the Regulations under Section 23 (1) of the Act, generally to carry out the purposes of the Act, even to bring Universities within its fold, to apply to seek for prior approval of the Council for starting a technical course or starting a technical institution either separately or in the department of the University. In our view Regulation No.4 is consistent with the purpose and object of the Act in relation to technical system in this country. Hence, it cannot be said that Regulation No.4 goes beyond the scope of the Act and its provisions.
26. Even otherwise, yet there is one more difficulty for the University. These Regulations dated 31st October, 1994, made by the Council were published in the Gazette of India - Extraordinary - on 23rd November, 1994, from which date they came into force. Regulation 4(1) imposed a prohibition and embargo stating that no new technical institution or University technical department shall be started or no course or programmes shall be introduced by any technical institution, University including a deemed University or University department or college, or no technical institutions, Universities or deemed Universities or University departments or colleges shall continue to admit students for Degree or Diploma Courses or programmes; no approved intake capacity of seats shall be increased or varied, except with the approval of the Council. Regulation 4(2) of the Regulations states that 'applications for grant of approval under sub-regulation (1) shall be made by any of the following, namely:-
(i) Government institutions, Government aided Institutions, deemed Univer-sities and University Departments or Colleges.
(ii) registered Societies/Trusts in respect of professional colleges."
These Regulations also provide various other matters relating to procedure, such as, submission of applications, scrutiny of applications etc.
The Council addressed a letter E.No. 711-1- 1/ET/98, dated May 22, 1998 to the Registrar of the University drawing his attention to the advertisement which appeared in "The HIndu" on May 3, 1998 inviting applications for admission to various branches of four Year B.Tech Programme during the year 1998-99 at Bharathidasan Institute of Engineering and Technology and to clause 10(1)(k) of the Act and Regulation 4(1) of the Regulations dated 31st October, 1994. In the said letter, it is clearly stated that the Courses mentioned in the advertisement were not approved by the Council and in view of the Act and its Regulations, the advertisement issued by the University was in gross violation of the Act, to start such an institute without the approval of the Council. Finally, in the said letter, the University was advised t with draw the advertisement with immediate effect, faling which, the Council would take a serious note of it and would take strict action. The University, even long after the coming into force of the Regulations and the letter aforementioned, written by the Secretary to the Council, did not stop at that, but proceeded further in making admissions to the technical courses in the Appellant No.2 Institute of the University, instead of either seeking the approval of the Council or challenging the validity of the Regulations. In State of Kerala v M.K. Kunhikannan Nambiar, , as to what is the effect in the absence of challenge to the validity of an Act or decision or an order or other instrument, is stated in paragraph 8:-
"8. In Halsbury's Laws of England, 4th Edn (Re-issue) Vol.1(1) in para 26, p.31, it is stated, thus:
"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."
"In the Judicial Review of Administrative Action, De Smith. Woolf and Jowel, 1995 Edn., at pp. 259-60 the law is stated thus:
"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:-
(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction."
Similarly, Wade and Forsyth in Administrative Law, Seventh Edn., 1994, have stated the law thus at pp. 351-342:
"...every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well known passage Lord Radcliffe said:
An order, even if not made in good faith, is still an act capable of legal consequence. It bears no bran of invalidity upon its forehead. Unless the necessary proceedings are taken at law to established the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
This must be equally true even where the brand of invalidity is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court, the necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."
The above statement of the law supports our view that the order of the Board dated 28.6.1977, declining to implead "respondents 3 and 4 which stood confirmed in revision concludes the matter against Respondents 3 and 4.
27. The Apex Court in Yadlapati Venkateswarlu v State of Andhra Pradesh, , has held that a statute will not be
declared unconstitutional, unless it is specifically challenged. There is a presumption in favour of the validity of an Act, rules or statutory regulations.
28. As against this position, Sri.R. Krishnamurthi, the learned Senior counsel, relied on Hukam Chand v Union of India, . In that case, the contention raised was Rule 49 of Displaced Persons (Compensation and Rehabilitation) Act, 1954, could not be amended with retrospective effect and the explanation added to the rule could not operate from a date prior to that on which it was added, as a result of amendment made in February 1960. Dealing with the said argument, in paragraph 6 of the judgment, it is stated thus:-
..."If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Like wise, if there was nothing in the language of S.40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rale, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (See Craises on Statute Law. p.297 Sixth Edition.)"
In the view we have already taken that Regulation 4 of the Regulations framed by the Council is valid, this judgment does not help the appellants.
29. The decision in General Officer, Commanding-in-Chief v. Subhash Chandra, relied on by the appellants also does not help the appellants. In paragraph 14 of the said judgment, it is stated that a rule framed under the provisions of a statute to have a statutory force, two conditions have to be fulfilled, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. In our view, in the light of the discussion made, the Regulations satisfy both the conditions. The Regulations relating to grant of approval and the University seeking prior approval of the Council are in conformity with the provisions of the Act and they come within the scope of the power to make Regulations, conferred on the Council under Section 23 of the Act.
30. The submissions of the learned counsel for the appellant that Regulation, of the Regulations being ultra vires of the Act, there was no need to challenge the same, based on Kiran Singh v. Chaman Paswanm, and Sunder Das v. Ram Parkash, , in
our view, does not help the appellants. Those are the cases dealing with a decree passed by a civil court which was a nullity and that objections could be taken in relation to such decrees, even at the stage of execution. In paragraph 3 of the judgment in the case of Sunder Dass, aforementioned, it is stated thus:-
"3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one excepted to this general rule and that is that where the decree sought to be execution is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide_Kiran Singh v. chaman Paswan, and Hiralal
Patni v. Kali Nath, . It is, therefore, obvious
that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the Civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent."
Further, it is not the case where the Council had total lack of power or jurisdiction in framing the Regulations. The University could not assume that Regulation 4 of the Regulations was invalid and that it would be struck down on a future date, so as to proceed to make admissions to the new technical courses. We have considered the provisions of the Act and the Regulations 1 and 4 of the Regulations are valid and intra vires. In this view, we feel it is unnecessary to deal with whether a party can attack a regulation without challenging the validity of the same. In other words, this question is left open.
31. Now, we will state the factual position on the basis of the records and submissions made by the learned counsel for the parties, relating to the admission, of students to various courses by the appellants in W.A.No. 1308 of 1998. The Syndicate of the University in its meeting held on 7.11.1997, resolved to approve in principle the establishment of Bharathidasan Institute of Engineering and Technology Biet and initiate all the necessary action in that regard including forwarding the proposal to Aicte/State Government for approval and also provision of funds under Revised Estimate of the Budget, 1997-98, The Council wrote a letter dated 22.5.1998 to the Registrar of the University, to which we have already referred above, asking the Registrar to withdraw immediately the advertisement given in the newspaper 'The Hindu' on May 3, 1998 inviting applications for admission to various branches of Four Yew B.Tech Programme during the year 1998-99 at Bharathidasan Institute of Engineering and Technology. In the said letter, it is clearly stated that the Council has not approved the four new courses and the Council had framed Regulations requiring prior approval for starting the Courses even by the University. No convincing explanation was given to us, why steps were not taken pursuant to the Resolution of the Syndicate dated 7.11.1997 seeking approval of the Council, pursuant to the Regulations which had come into force on 23rd November; 1994. A news item appeared on 1.8.1998 in 'The Indian Express' quoting the Vice-Chanceller of the University saying that approval of the Council was not needed for technical courses started by the University and that the University was empowered to start such courses on its own. A new item appeared on 7.8.1998 in 'The Hindu' to the effect that the Council was contemplating legal action against the University for violation of the Act. It also quoted that the University had been informed by the letter of the Aicte dated 22.5.1998 that they should not conduct such programmes without approval of the Aicte, a statutory body created under an Act of Parliament. Further, the students and parents were advised not to seek admission for these programmes and if they did, it would be at their own risk. Similar news items appeared in Tamil newspapers also. Again in 'The Indian Express' dated 8.8.1998, a news item appeared under big headline stating that parents and students who proposed joining the Bharathidasan School of Engineering and Technology are in a quandary, their predicament follows an announcement on Doordarshan and AIR by the All India Council for Technical Education that BIET was unapproved and students who joined the institution were doing so at their own risk. It was further stated that the University violated the Regulations and the Supreme Court judgment of 1993. By another news item found in 'The Indian Express' dated 12.8.1998, the students were warned from joining technical courses of the University.
32. The prospectus issued by the appellants' Institute in regard to the Courses in question shows that the University has launched a new programme in the faculty of Engineering; Bharathidasan Institute of Engineering and Technology is to start functioning from the academic year 1998-99 and offered courses in a few selected Engineering disciplines, viz., (1) Information Technology and Management, (2)Bio-Engineering and Technology, (3) Petrochemical Engineering and Technology, (4) Pharmaceutical Engineering and Technology and (5) Polymer Engineering and Technology, filing the intake as 60 for the first discipline and 30 for each of the remaining disciplines, total intake being 180. During the Course of the arguments, it was submitted that as against 180, the appellant's Institute had made admission of 216 students.
33. As per the prospectus, Selection of candidates for admission would be made on All India level, based on merits determined through an Entrance Examination, however, the Tamil Nadu Reservation policy will be adopted. It is also stated that a few seats were available for sponsored candidates and 5% of seats were available for NRI candidates. The minimum academic qualification for admission was a pass in the final examination of 10+2. It was also pointed out that there is inconsistency between the norms for eligibility for admission laid down by the Council and the University. Tuition fee for top one third of the students admitted in each course will be charged at Tamil Nadu Government free seat rate (Rs. 9000 per annum) and the rest will be charged at the payment seat rate (Rs.35,000 per annum). The fee payable by NRI candidates is 5000 US dollars per annum. Sponsored candidates have to pay Rs.l,00,000 per annum. Besides, special fee of Rs.2000 per annum, liberty fee of Rs.1000 per annum, Laboratory fee of Rs.2000 per annum, Caution Deposit of Rs. 2000 and Library deposit of Rs.1000 have also been prescribed. Even the number in respect of sponsored candidates is also not fixed. Out of the total seats available, 1/3rd seats are only free seats and 2/3rd seats are payment seats, including NRIs and sponsored candidates. On the basis of the prospectus, the learned counsel for the respondents submitted that the University cannot make admission contrary to the scheme framed in Unnikrishnan v State of A.P., 1993 (1) SCC 648. Further, the University either in its department or in its separate and distinct technical institute cannot collect money from the students as is done by self financing colleges. The University having been created under a statute, it cannot conduct itself as a self-financing college in admitting students to technical courses. Learned counsel for respondent No.2 in W.A.No.1308 of 1998 submitted that when the University cannot grant permission to start a technical institute or give approval for starting a new technical institute or new course in respect of others, it cannot take approval as granted for itself in regard to starting a technical institute or a technical course; Although under the University Act it has power to affiliate a college or start a department, in view of AICTE Act, it cannot do so, so far as they relate to introduction of new technical courses or starting a technical institute in view of what is already stated above.
34. From the facts narrated above, it is clear that the Council has not approved the new courses introduced by the Appellant University. The University has not taken the approval of the Council for starting the Institute or the said courses. The Council has also not fixed the intake capacity in respect of the courses. The allotment of seats is also not consistent with the scheme framed in Unnikrishnan's case, 1993 (1) SCC 648 in the matter of allotment of free seats and payment seats. The fee structure is also created by the University itself which is riot consistent with the fee structure of similarly placed other institutions. There is also inconsistency in the norms for eligibility for admission laid down by the Council and the University.
35. As per Section 10(b) of the Act, the Council could coordinate the development of technical education in the country at all levels. As per Section 10, the Council is the authority for ensuring coordinated and integrated development of technical education and maintenance of standards etc, relating to technical education in the country at all levels as laid down in Adhiyaman Educational and Research Institute Case, . Under the Act, the proper planning and
co-ordinated development of the technical education system throughout the country is to be done as per the provisions of the Act and the Council has the duties and functions in that regard. The Council states that the five new courses started by the University are not approved by it. Whether those courses are really required for the planned and coordinated development of technical education for the promotion of qualitative improvements of such education in relation to planned quantitative growth, is to be decided by the Council. The University cannot itself decide the same. Similarly, under Section 10(i), of the Act, to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations are to be done by the Council, so also fixing up of norms and guidelines for charging tuition and other fees. Similarly, guidelines have to be provided for admission of students to technical institutions and Universities imparting technical education by the Council. The Council has also the power of inspection of a technical institution or a University, as is evident from Section 11 of the Act. In this background, the argument of the learned Senior counsel for the appellants in Writ Appeal No.1308 of 1998 that except the prior approval of the Council, the appellants are ready to follow all the norms and guidelines that are laid down by the Council cannot be accepted. It was pointed out that if the appellants do not conform to the standards, norms, guidelines or the Regulations, the permission could be withdrawn. This was countered by the learned counsel for the respondents stating that why the innocent students should be allowed to join such courses, without prior approval of the Council and then made to suffer in case approval is riot given for want of satisfying the requirements.
36. We find good reasons to accept the submissions of learned Additional Solicitor-General. If we accept the contention of the appellant and if several Universities in the country start technical institutions or introduce new technical courses in the University Departments and technical courses of their choice having different norms without prior approval of the Council fixing their own intake capacity, it would certainly defeat the purpose of the Act. viz.,, planned and co-ordinated development of technical system throughout the Country, aimed at the promotion of qualitative improvements in relation to planned quantitative growth, which, in our view, cannot be allowed. This view of ours gets support from Adhiyaman Educational and Research Institute case, , dealing with the co-ordinated
development of technical education system throughout the country.
37. The University, within its domain, has six Engineering colleges, as can be seen from the prospectus itself and in respect of a few of the Engineering Colleges, the prior approval of the Council is taken by the University. It sounds strange that there can be different standards in the matter of admission, eligibility to apply for courses, fee structure etc., between the technical institute or department of the University and Engineering Colleges coming within the area of operation of the University. If such a thing is allowed, it would definitely not be in consonance with the co-ordinated and planned development of technical education in the country. In other words, it defeats the very purpose and object of the Act.
38. The learned Senior Counsel, Shri P. Jayaraman, pleaded on behalf of the students that they may not suffer because of the controversy that has arisen or raised between the University and the Council. From the facts stated above, it is clear that the Council asked the University as early as in May, 1998 not to start the courses, but withdraw the advertisement made inviting applications from the candidates. Further, it was widely published in the newspapers, both in English and in Tamil, including on Doordarshan and All India Radio that the University had no authority to start new technical courses without the approval of the Council and those courses had no approval of the Council. The parents and students were also cautioned not to join the courses started by the appellants in W.A.No.1308 of 1998. Further, the Supreme Court in C.B.S.E. v. P.Sunil Kumar and others, 1998 (4) Supreme 572, in paragraph 3 of the judgment, referring to earlier judgments of the Apex Court held that Court cannot direct to disobey a statute.
39. From the facts stated and discussion made above, we notice that:
(1) The Syndicate of the University rightly passed the resolution on 7.11.1997 to seek the approval of the Council for starting the technical institute and to introduce technical courses in it; but wrongly did not take further steps and action pursuant to the said resolution. It is not shown to us that either the resolution of the Syndicate was amended or rescinded subsequently, except making a submission in the course of the arguments that the University bona fidely thought that approval of the Council was not required.
(2) The Council after coming to know of the advertisement made by the University to start technical courses without approval, wrote a letter to the University as early as on 22nd May, 1998 informing the University that the new courses proposed by the University were not approved by the Council; without approval of the Council no new technical institute could be established or new technical courses could be established or new technical courses could be introduced; and the advertisement issued inviting applications for the courses may be withdrawn.
(3) The Regulations dated 31.10.1994, which were published in the Gazette on 23.11.1994 were very much in force and operation, requiring the University also to seek prior approval on the date when the University issued advertisement inviting applications from the students for the courses in 1998.
(4) The Full Bench judgment of the Andhra Pradesh High Court had been delivered on 28.1.1997, much earlier to the University taking the decision to start courses without prior approval of the Council.
(5) On the basis of the statement made by the Council, news items were published in leading newspapers, both in English as well as in Tamil, that the University had no authority to establish either technical institute or to start technical courses without the prior approval of the Council, explaining about the provisions of the Act and the Regulations requiring prior approval. Even the students and parents were put on caution saying that the University has no approval of the Council for the courses and if the students take admission in such courses started by the University, they will be doing so at their own risk.
(6) The Vice-Chancellor of the University asserts that the University need not take prior approval of the Council, as such courses are to be started by the University itself, joining issue with the Council. This statement of the Vice-Chancellor is also published in the news-papers.
(7) Students joined the courses on the basis of the advertisement issued in the newspapers and the notifications issued in the advertisements, notification and the prospectus issued by the University. It is not possible to accept that the students were not aware of the news items published in the newspapers stating that the courses started by the University were not with the approval of the Council and the students, if joined such courses, they do so at their own risk. Although we do not entirely rely on the news items published in the newspapers, but in the course of the arguments, when the learned Counsel for the respondents relied on these news items, they were not denied by the learned counsel for the appellants. We are told that similar announcements were made on Doordarshan and All India Radio. Under these circumstances, it cannot be said that the University acted, either innocently or ignortantly or bona fide. The present undesirable and unfortunate situation, which was otherwise avoidable, in which the University has landed is of its own making, which also dipped the students and their parents in difficulties.
(8) It is a matter for the competent authorities to investigate and examine as to why steps were not taken by pursuing the said resolution of the Syndicate to get approval of the Council, whether a decision not to get the approval of the Council was taken by the Syndicate subsequently or by the Vice Chancellor or any other authority of the University and under what circumstances; whether such authorities were competent to do so. This investigation and examination is necessary to avoid further complications and difficulties in future.
40. We do not think it necessary to refer to the various other decisions cited by the learned counsel for the parties on the settled position of law, in order to avoid further burdening the judgment, having already referred to various decisions directly on the points.
41. Thus, for the discussions made and the reasons stated, we are unable to find any merit in these writ appeals, viewed from any angle. Hence, they are liable to be dismissed. Accordingly, they are dismissed, There will be ho order as to costs.
42. At this stage, we are informed that the Vice-chancellor of the University by the letter Ref. No.21105/E1/97, dated 20.11.1997 addressed to the Council, requested for issuing application for Letter of Viability for starting the Bharathidasan Institute of Engineering and Technology. If that be so, we make it clear that the dismissal of these appeals shall not come in the way of the Council in considering the application of the University dated 20.11.1997 for issuing the Letter of Viability and processing the application in the matter of granting approval on merits and in accordance with law. The learned Additional Solicitor Genera) submitted that although the Council has power of relaxation, such relaxation could be done in regard to time schedule in making the application seeking approval or other matters only to a class of institutions and not to the individual University. It is for the Council even to examine these aspects also. Shri P.Jayaraman, the learned Senior counsel pleading the cause of the students submitted that some of the students who had joined other technical Institutions having been selected, have given up their admissions, attracted by the new courses started by the University and have joined the appellants' Institution and they will be put to great difficulties and hardship in the event the relief is not granted. We also clarify that in the event there are any vacant seats remaining unfilled in their respective institutions where they had joined, the institutions may consider their cases sympathetically to readmit them to the courses in consultation with the competent authorities.
43. Now that the time granted by the learned single Judge to comply with the directions could not be adhered to in view of the interim order passed in these appeals, we extend the time for compliance of the directions given by the learned single judge by four weeks from to-day.
44. We direct the Office to send the copies of this judgment to the Chancellor of the University and the Chairman, University Grants Commission for perusal and necessary action.