Orissa High Court
Sanjaya Memorial Institute Of ... vs State Of Orissa And Ors. on 1 September, 1993
Equivalent citations: 1993(II)OLR435
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The petitioners, who are Sanjaya Memorial Institute of Technology and its President, have assailed the the validity of Section 2(i) of the Orissa Education (Amendment Act, 1991 by which Clause (f) of Section 3 of the Orissa Education Act, 1969 (hereinafter, the Act) was amended by substituting the words "or any institution imparting technical education in the State" ''for the words "other than an institution for technical education not under the control of the Education Department of the State Government".
2. Clause (f) aforesaid is a part of the definition section and has defined the expression "educational institutions". The effect of the amendment is that any institution imparting technical education in the State has become an educational institution. The validity has been assailed on the ground that the State Legislature had no competence to enact inasmuch as the field is covered by Entry 66 of List I of Schedule VII of the Constitution of India. That Entry reads as below ;
"66 Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. "
There is, however, another entry relating to technical education and the same is Entry 25 of List III. That is in the following language ;
"25. Education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List l, vocational and technical training of labour."
3. Reading the two entries together, as they have to be because Entry 25 of List III is subject to the provisions, inter alia, of Entry 66 of List I, we hold that a subject-matter rejecting to technical education would be covered by Entry 25 of List III except where the same be relatable to standards relating to technical institutions. It is well-settled taw that legislative entries have to be liberally construed and all the entries must be allowed to operate in their own fields without transgressing into the area of the other. And where such a position would seem to prevail pith and substance of the enactment shall be looked into to decide what did it really seek to do. Not only this, legislative power carries with it all ancillary and subsidiary powers also.
4. Shri Pal appearing for the petitioners submits that a perusal of the counter affidavit filed on behalf of opp. party Nos. 1 to 5 which include the State would show that the amendment was to regulate and ensure standard of technical education in the State", as stated in paragraph 4. Learned counsel urges that this would attract Entry 66 of List I, But then, the further reading of paragraph 4 as well as what has been stated in paragraph 7 would make it clear that the amendment is really meant "to prevent mismanagement of technical institution", or the subject-matter of the amending Act is "establishment, recognition and management" of technical institution. This subject-matter, according to us, would be covered by Entry 25 of List III, as it does not deal with standard of the institution, What has been stated in paragraph 4 is about standard of technical education and not technical institution.
5. Shri Pal then urges that even if it be Entry 25 of List III, there bing a Central Act, namely, the All India Council for Technical Education Act, 1987, the State Act cannot operate the same field, inasmuch as the amendment has not received the assent of the President which would be required if State Act were to be repugnant to Central Act relating to any entry in List III without which the State Act cannot prevail over the Central Act.
6. Let us see what is the subject-matter of the Central Act. A reference to the preamble of that Act shows that it was enacted with a view to proper planning and co-ordinated development of the technical education system throughout the country, promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and stadards in the technical education system and for matters connected therewith. To achieve these objectives, various powers and functions have been assigned to various bodies established by the Act. One of the functions which has been assigned to All India Council for Technical Education Act of which mention has been made in Section 10 (k), to which our attention is invited by Shri Pal, is grant of approval for starting new technical institutions. The subject-matter of the amendment being, as stated earlier, "to prevent mismanagement of technical institution", we are of the view that both the Acts can co-exist and there is no repugnancy, and so, there was no necessity of obtaining any assent of the President as required by Art. 254 of the Constitution of India.
7. Shri Pal lastly submits that following Hon'ble Supreme Court's judgment in Unikrishnan v. State of Andhra Pradesh, 1993-1 S.C.C. 845, commonly known as "Capitation Fee case", the State Government has already taken some resolution, a copy of which has been filed as Annexure-7 to the rejoinder filed on 30th August, 1993. As to this, we would observe that it is apparent that no rule, scheme, provision or instruction can be issued by the State Government in conflict with the scheme which has been formulated in Unikrishnan's case.
8. The aforesaid being the position, we do not find any lack of competence on the part of the State Legislature in having amended the Act as aforesaid. The question of legislative competency alone having been urged, we dismiss the petition.
R.K. Patra, J.
9. I agree.