Kerala High Court
Smt. Anandavally.M.K vs Dr. P.G.Jairaj on 14 March, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 16TH DAY OF DECEMBER 2013/25TH AGRAHAYANA, 1935
WA.No. 2706 of 2009 ( ) IN WP(C).31862/2008
---------------------------------------------
JUDGMENT IN WP(C) 31862/2008
.................
APPELLANT/RESPONDENT NO.8 IN WPC:
SMT. ANANDAVALLY.M.K., ASISTANT PROFESOR,
GOVERNMENT ENGINEERING COLLEGE,THRISSUR.
BY ADV. SRI.KRB.KAIMAL (SR.)
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 7 AND 9 TO 14:
1. DR. P.G.JAIRAJ, ASSISTANT PROFEOR,
DEPT. OF CIVOL ENGINEERING, GOVT. ENGINEERING
COLLEGE, TRIVANDRUM.
2. STATE OF KERALA, REPRESENTED BY THE
CHIEF SECRETARY, GOVT OF KERALA, GOVT.
SECRETARIAT, TRIVANDRUM.
3. THE PRINCIPAL SECRETARY TO THE GOVT.
HIGHER EDUCATION (G) DEPT., GOVT. OF KERALA,
TRIVANDRUM.
4. DIRECTOR OF TECHNICAL EDUCATION,
DIRECTORAT OF TECHNICAL EDUCATION, TRIVANDRUM.
5. THE SELECTION COMMITTEE FOR SELECTION
TO THE POST OF PROFESSORS IN GOVT. ENGINEERING
COLLEGES, REPRESENTED BY ITS CONVENER, PRINCIPAL
SECRETARY TO THE GOVT., HIGHER EDUCATION DEPT.,
GOVT. SECRETARIAT, TRIVANDRUM.
6. ALL INDIA COUCNIL FOR TECHNICAL
EDUCATION, REPRESENTE BY ITS DIRECTOR,
IG SPORTS COMPLEX, IP ESTATE, NEW DELHI-110002.
7. SMT. MARIAMMA JOSEPH, ASSISTANT PROFESSOR,
COLLEGE OF ENGINEERING TRIVANDRUM.
8. SMT. D. THANKAMONI, ASSISTANT PROFESSOR,
COLLEGE OF ENGINEERING, TRIVANDRUM-695016.
9. DR. K.BALAN, ASSISTANT PROFESSOR,
GOVT. ENGINEERING COLLEGE, THRISUR.
(ON LOSS OF PAY LEAVE, EMPLOYED OUTSIDE INDIA)
10. JIMMY JOSEPH KATTUR, ASSISTANT PROFESSOR,
PRINCIPAL, IHRD ENGIEERING COLLEGE,
POONJAR, KOTTAYAM.
11. SHEEJA.A.K. ASSISTANT PROFESSOR,
COLLEGE OF ENGINEERING, TRIVANDRUM.
12. N.MADHU, ASSISTANT PROFESSOR, COLLEGE OF
ENGINEERING, TRIVANDRUM.
13. N.VIJAYAN, ASSISTANT PROFESSOR, COLLEGE
OF ENGINEERING TRIVANDRUM.
14. K.O.VARGHESE, ASSISTANT PROFESSOR, GOVT.
ENGINEERING COLLEGE, THRISSUR.
ADDL. R15 IMPLEADED
15. UNION OF INDIA REP. BY THE SECRETARY TO GOVT.,
MINISTRY OF HUMAN RESOURCES DEVELOPMENT,
(DEPARTMENT OF EDUCATION) NEW DELHI.
Impleaded as per order dated 14.03.2011
R1 BY ADV. SRI.S.RADHAKRISHNAN
R6 BY ADV. SRI.S.KRISHNAMOORTHY, CGC
ADDL.R15 & 16 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
ADDL.R15 & 16 BY ADV. SRI.V.M.BABY
R2-5 BY ADV. SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL
R6 BY SRI.MILLU DANDAPANI
R7 & R11 BY ADV. SRI.E.K.NANDAKUMAR
R8 BY ADV. SRI.JOHNSON GOMEZ
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-0-2013
ALONG WITH W.A.NO.2708/2009 AND CON. CASES, THE COURT ON
16-12-2013 DELIVERED THE FOLLOWING:
APPENDIX IN WA.No. 2706 of 2009
ANNEXURE-I TRUE COPY OF THE GOVERNMENT NOTIFICATION NO.28281/G1/
2004/H.Edn. DATED 20.11.2004
ANNEXURE-II TRUE COPY OF THE GOVERNMENT NOTIFICATION GO(MS)NO.
104/05/H.Edn. DATED 2.8.2005
/TRTUE COPY/
P.A TO JUDGE
Manjula Chellur, C.J. & V.Chitambaresh, J.
---------------------------------------------------------------
W.A.Nos.2706, 2708, 2722, 2724 and
2772 of 2009, 692, 956 and 980 of 2012
-------------------------------------------------------------
Dated this the 16th day of December, 2013
JUDGMENT
Manjula Chellur, C.J.
All the Writ Appeals are directed against a common judgment dated 06.10.2009 in W.P.(C)No.31862/2008 and other connected cases. All the appellants before us were respondents in the respective writ petitions.
2. Respondents/writ petitioners approached this Court challenging the amendment brought to the Special Rules for Kerala Technical Education Services (Amendment) of 2010 by inserting Rule 6A, contending that it is without legislative competence, therefore, unconstitutional. The stand of the writ petitioners was, State of Kerala having availed financial assistance offered by the Central Government in implementing the All India Council for WA2706/09 & con. cases 2 Technical Education (for short 'AICTE') Scheme failed to comply with the amendment of the Special Rules as prescribed by the norms of AICTE and further diluted the qualification by inserting Rule 6A. Therefore, the said rule deserves to be quashed.
3. The amendment challenged in the writ petition is Rule 6A which provides exemption from obtaining Ph.D for those Lecturers who were: (1) appointed on or before 27th March, 1990 and (2) have completed 45 years of age on the date of notification i.e. 27.03.1990 for the post of Professors etc. So far as those candidates who apply for the post of Assistant Professors, they have to acquire Ph.D within 7 years of such appointment as stipulated by AICTE. As per the prescription of AICTE norms the appointment had to be made by open selection through selection committee and the experience prescribed is 15 years for Principal, 10 years for Professor and 3 years for Assistant Professor.
WA2706/09 & con. cases 3
4. The writ petitioners contend, having enjoyed the benefit of financial assistance extended by the Central Government not once but twice, though State of Kerala implemented the same by making necessary changes in the Statute but diluted it for a class of persons as stated above. Therefore they approached the learned Single Judge seeking quashing of Rule 6A as sought in the writ petition. They also contended that the writ petitioners have better qualification than the party respondents who did not even possess the required Ph.D, however, the writ petitioners were placed much below the appellants herein. Therefore they approached the Court in various writ petitions.
5. In some of the writ petitions, Rule 6A came to be challenged and other writ petitions came to be filed challenging the select list prepared for appointment to the post of Professor. However, Government cancelled the select list apparently realising the mistake that one of the candidates who does not even possess the relaxed WA2706/09 & con. cases 4 qualification was included in the select list. The learned Single Judge allowed the writ petitions declaring Rule 6A of the Special Rules of Kerala Technical Education and Services as without legislative competence and unconstitutional on the following grounds.
a) The State of Kerala was duty bound to amend the rules as stipulated by AICTE after availing financial assistance but failed to do so and on the other hand relaxed the qualifications which is nothing but fraud on AICTE and Central Government etc. and b) Rule 6A is invalid as the norms stipulated by AICTE prescribing the minimum qualification under the AICTE Act i.e. Section 10 will have overriding effect on the legislation passed by the State by virtue of Article 254 of the Constitution.
6. Aggrieved by the same, the appellants are before us contending that 80% of financial assistance stipulated in both the orders of State of Kerala is for a limited period and thereafter State of Kerala takes the responsibility of the WA2706/09 & con. cases 5 entire financial burden. In none of the clauses of the orders of the State Government such stipulation is made that State of Kerala will keep the orders unchanged indefinitely. When there was no undertaking by the State Government, there was no duty cast on the State Government to keep the norms of the AICTE unchanged for ever. So far as the first Scheme of 1989, the State Government admitted that qualification could not be enforced, but however, on the second occasion, after a decade, in the year 2000, second Scheme came to be implemented and concluded on 31.03.2000. This would clearly indicate implementation of qualification was not the essence in giving financial assistance.
7. It is further contended that the norms stipulated by AICTE will not constitute as binding law unless there is a law declared by the Parliament or an existent law, which would override state legislation. No regulations under Section 23 of AICTE Act have come into effect. Therefore, the WA2706/09 & con. cases 6 executive orders cannot replace the regulations, hence, the opinion of the learned Single Judge that Article 254 of the Constitution is attracted to the facts of the present case is erroneous. According to the appellants, the norms stipulated by AICTE prescribing the minimum qualification cannot be considered as statutory in nature and they are not capable of overriding a State Legislation under Article 309 of the Constitution. Argument of the appellants is that State Government has not diluted any of the qualifications recommended by AICTE but while implementing the said recommendation, State has relaxed the same taking into consideration the legitimate right of those who entered into services under unamended 1967 Rules and they constitute vanishing class. Section 10 of the AICTE Act, according to them, only enumerates the duties which AICTE may undertake. In the absence of any law made by the Parliament or any provision of existing law, State Legislation, which is made under Article 309 of the WA2706/09 & con. cases 7 Constitution of India, cannot be repugnant to the norms made by the AICTE. In the so called amended Rule 6A of the Special Rules of the Kerala Technical Education and Services made by the State, there is a reasonable explanation for introducing the amendment and that policy decision is beyond the scope of judicial review. With these averments they have sought for setting aside the judgment of the learned Single Judge by allowing the appeals.
8. We have gone through the judgment of the learned Single Judge and also various decisions relied upon by the learned Senior Counsel, learned counsel for the party respondents, Standing Counsel for the AICTE and the Government Pleader appearing for the State.
9. The undisputed facts are: the Special Rules for Kerala Technical Education Services came to be notified on 02.09.1967. The Ministry of Human Resources Development, Government of India approved the AICTE Scheme by letter dated 28.02.1989 informing Secretaries WA2706/09 & con. cases 8 dealing with technical institutions of all States and Union Territories regarding the revision of pay scales of Teachers, Librarians and Physical Education Instructors in Engineering Colleges and other degree level technical institutions including architect course etc that the pay scale of teachers of Technical Education was decided to be implemented as recommended by the expert committee report and those approved by AICTE with effect from 01.01.1986. The scheme was implemented in all Technical Education Institutions taking financial assistance from the Central Government. The Government of India also decided to extend the said benefit to the State Governments who wish to adopt and implement the scheme of revised pay scales of teachers in the Engineering Colleges and other technical institutions subject to the condition that the entire scheme of revised pay scales together with higher qualification will have to be implemented as a composite scheme and necessary amendments are to be made in the WA2706/09 & con. cases 9 Statutes, Rules, Regulations etc on implementation of the Scheme by those States taking financial assistance.
10. In this scheme, central assistance was available between 01.01.1986 and 31.03.1990. From 01.04.1990, State Government shall take the responsibility of maintaining the revised pay scales. So far as the date of implementation, States were given option to give effect of revised pay scales from a later date, by taking into consideration the local needs and other circumstances. The scheme also provided option in writing to the existing teachers in technical education institutions whether they would exercise option to have their pay fixation under the scheme or not and this has to be time bound i.e. before their pay fixation under the scheme. Clauses 9, 10, 11 and 12 of the appendix to Exhibit P2 refer to the requirement, qualification and experience, which read as under:
"9. Recruitment of teachers at the level of Lecturers shall be from those who qualify through a qualifying examination, details of WA2706/09 & con. cases 10 which shall be developed by the All India Council for Technical Education and intimated to the various States and institutions. Until this operational mechanism is developed, the existing procedures of recruitment will continue in relaxation of this requirement.
10. Appointment to the posts of Lectures, Assistant Professors, Associate Professors, Professors, Librarians and Directors of Physical Education/Physical Education Instructors shall be by open selection on the basis of merit as per prescribed qualifications and experience. Placement in the Senior scale and Selection grade in the case of Lecturers, Librarians and Directors of Physical Education/Physical Instructors shall be through promotion as per conditions prescribed. AICTE will lay down the constitution of selection/promotion committees; and the existing procedure will remain in vague till AICTE does so. The details of the qualifications prescribed for various positions are given in Annexure-III.
11. In order to encourage research, in continuation of post-graduate studies, candidates who, at the time of their recruitment as Lecturers possess Master's and Doctoral degrees in Engineering/ Technology shall be granted 2 and 4 advance increments respectively and candidates who possess M.Phil and Ph.D degrees in Sciences and Humanities shall be granted 1 and 3 advanced increments respectively in the Scale of Rs.2200-4000 along with the benefit of corresponding years of service for the WA2706/09 & con. cases 11 purpose of promotion. The existing Lecturer who do not possess these qualification, or who might be recruited in future without these qualifications, will be eligible for a similar benefit in service for the purpose of promotion as and when they acquire these qualifications, but they will not be eligible for advance increments. Existing Lecturers who possess those qualifications will also be eligible for the benefit in service for the purpose of promotion.
12. Every Lecturer will be placed in a senior scale of Rs.3000-5000 if he has - completed 8 years of service after regular appointment with relaxation in service as provided in para
11 above;
- participated in two refresher courses or summer institutes each of approximately four weeks duration or in other comparable continuing education programmes approved by the All India Council for Technical Education; and
- consistently satisfactory performance appraisal reports.
All lecturers in the existing scale of Rs.700- 1600 who have completed 8 years of service on 01.01.1986, will be placed through a process of screening/selection in the scale of Rs.3000-5000/-. The benefit of service provided in para 11 will be available for the initial placement also."
WA2706/09 & con. cases 12
11. Annexure-I shows the existing pay scales of teachers in the revised pay scales.
12. It is not in dispute that writ petitioners joined the service in various departments of engineering on the basis of the selection conducted by Kerala Public Service Commission as per 1967 Rules. Prior to 1990, appointment of teachers in Government Engineering Colleges in the State of Kerala were governed by the Special Rules for Kerala Technical Educations Services Rules of 1967. By order dated 27.03.1990 Government of Kerala implemented the AICTE Scheme in Engineering Colleges with effect from 01.01.1986 stipulating that all appointments in Engineering Colleges after 01.04.1990 will be made only in accordance with the qualifications prescribed by AICTE. By virtue of implementation of AICTE Scheme, revision of pay scales along with associated terms and conditions of services of teachers in Engineering Colleges in degree level in the State intended to be implemented. This clearly indicates WA2706/09 & con. cases 13 that the Scheme envisages central financial assistance for implementation of pay revision of teachers on condition that Government makes necessary changes in the relevant Rules and Regulations.
13. It is nobody's case that subsequent to 01.04.1990, revised pay scales were withdrawn and there was no need for the State to pay the revised pay scale. As a matter of fact, central financial assistance was granted only with the condition that subsequent to 01.04.1990 the State shall take the responsibility of the revised scales of teachers etc.
14. However, when such central financial assistance was taken, the staff of the institution were required to possess the minimum educational qualifications and experience as required under the Scheme. But, State Government did not fulfill the undertaking of implementing the Scheme in all respects, especially fulfillment of conditions pertaining to qualification etc. in tune with AICTE Scheme. In other words, State Government granted WA2706/09 & con. cases 14 protection to the existing teachers who did not have the prescribed qualification by relaxing the educational qualification and experience prescribed by AICTE. This is evident from order dated 03.12.1990, wherein certain under qualified teachers approached this Court contending that their promotions cannot be withheld on the basis of the Scheme envisaged by AICTE and they were also entitled to be promoted in tune with 1967 Special Rules of the State. This Court also held that promotions have to be made in accordance with the existing Special Rules and not in accordance with AICTE Scheme. According to the writ petitioners, drawing of AICTE scales of pay was suppressed at that time before this Court.
15. In 2000, certain qualified teachers approached this Court contending that amendment to the Special Rules is nothing but arbitrary and illegal when Government of Kerala issued an order on 18.05.2000 again revising the pay scales on condition that failure to adopt the stipulations WA2706/09 & con. cases 15 regarding qualifications and recruitment in State Government service has resulted in higher emoluments without corresponding level of improvement in standards of technical education. The Central Government again formulated a Scheme on the recommendation of the AICTE for revision of pay scales. For the second time it was communicated to State Governments including Government of Kerala. It is also not in dispute that Government of Kerala decided to implement the Scheme. Though a declaration was made as early as in 2000, amendment to the Special Rules for Kerala Technical Education was incorporated only with effect from 24.01.2003 stipulating that the qualifications prescribed in the AICTE Scheme for appointments to various teaching posts in Government Engineering Colleges in the State are applicable.
16. It is not in dispute that as per the amended Special Rules, the qualification required for the post of Professor and Assistant Professor in Engineering Colleges is Ph.D WA2706/09 & con. cases 16 with first class degree at Bachelors or Masters level in the appropriate branch of Engineering/Technology. However, on 18.09.2004, Government again amended the Special Rules adding Rule 6A to the Special Rules giving concession to those teaches who were appointed as Lecturers on or before 27.03.1990. This is how Rule 6A came to be introduced, giving exemption to those teachers from acquiring Ph.D who were appointed as Lecturers on or before 27.03.1990 and who had completed the age of 45 years as on the date of notification. By virtue of this Rule, acquiring a Ph.D to become eligible for appointment as Professor, Joint Director and Director of Technical Education, certain classes of persons were exempted who fulfill the above two conditions. Therefore, there was classification of candidates for the same post depending upon the date of joining the service as Lecturers and how old were they on the date of notification.
WA2706/09 & con. cases 17
17. So far as the candidates applying for the post of Assistant Professor, they were exempted from possessing Ph.D subject to the condition that they acquire Ph.D within 7 years of appointment. This came to be questioned in W.P. (C)No.4468/2005. During the pendency of the writ petition, on 15.04.2008, Government invited applications from Assistant Professors of Government Engineering Colleges in the State for appointment to the post of Professor indicating that the qualification shall be on par with the Special Rules of the State in tune with the relaxation indicated in Rule 6A. At this point of time, both the appellants and writ petitioners applied for the said post and the list of qualified candidates also came to be published followed by a select list. As the appellants herein were placed above the writ petitioners, they approached this Court contending that the required qualification of Ph.D as per AICTE Scheme was not acquired by the appellants herein and some of the WA2706/09 & con. cases 18 candidates did not even possess the minimum qualification even with the relaxation, although possessed Ph.D.
18. As stated above, the learned Single Judge after considering the matter from all angles, from the point of view of the contentions raised, ultimately allowed the writ petitions. Though the party respondents and the State came up in appeals, it is important to note, State has withdrawn all the appeals filed by them wherein they questioned the judgment of the learned Single Judge quashing Rule 6A.
19. On behalf of the appellants, learned senior counsel Sri.Mathai M.Paikadey, Sri.N.Nandakumara Menon, Sri.K.R.B.Kaimal and other learned advocates addressed arguments. One of the contentions was with regard to legitimate expectation. To substantiate this contention, the line of argument was that appellants did not anticipate introduction of higher qualification like Ph.D etc. as envisaged by the AICTE Scheme and they were under the impression that during the course of their service they WA2706/09 & con. cases 19 would secure promotion, therefore, legitimate expectation principle would apply to the case of appellants. They relied upon the decision in University Grants Commission v. Sadhana Chaudhary and others ((1996) 10 SCC 536) to seek the principle of legitimate expectation. In the above case, grant of exemption from eligibility test for appointment to the post of Lecturer came up for consideration. Their Lordships held that fixing the cut off date is valid since the earlier regulations did not prescribe eligibility test who had submitted Ph.D thesis or passed M.Phil examination by 31.12.1993 and those qualifications were essential under the earlier Regulations, but the 1991 Regulations in lieu thereof prescribed passing of an Eligibility Test as an essential qualification and in view of the time taken in submitting Ph.D thesis or obtaining M.Phil, the cut-off date to grant exemption from the eligibility test to such candidates who had undertaken the study of Ph.D or M.Phil in terms of earlier Regulations was WA2706/09 & con. cases 20 held neither arbitrary nor unreasonable. Prior to the making of 1991 Regulations, there was no statutory requirement regarding clearing the eligibility test which came to be introduced for the first time by 1991 Regulations. But, the provisions in 1982 Regulations have given rise to a legitimate expectation that a person having Ph.D or M.Phil and having good academic record would be eligible for appointment to the post of Lecturer without anything more like clearing the eligibility test.
20. As against this, learned standing counsel for AICTE Sri.S.Krishnamoorthy places reliance on the decision in Adarsh Shiksha Mahavidhalaya and others v. Subhash Rahangdale and others ((2012) 2 SCC 425). In this case, a public interest litigation was filed seeking directions for ensuring proper maintenance of norms and standards in the teacher education system in various colleges, both public and private. The petitioners before the High Court sought for appointment of an expert team of NCTE for conducting WA2706/09 & con. cases 21 inspection of all the recognised institutions and also for issuance of a direction to the Western Regional Committee under the NCTE Act to take action in the light of the report of such expert team. Their Lordships held that in the last three decades the private institutions engaged in teacher training courses or programmes have indulged in brazen and bizarre exploitation of the aspirants for admission to teacher training courses and held that the provisions of the Act and the Regulations framed thereunder were with a view to achieve the object of planned and co-ordinated development of teacher education system through out the country and for regulation and proper maintenance of norms and standards in teacher education system. Therefore, they held that court must feel satisfied before entertaining a public cause in a PIL that petitioner was to espouse a public cause and not his litigious venture with ulterior motive. In this judgment, their Lordships held that there is need for well equipped and trained teachers in the WA2706/09 & con. cases 22 schools and colleges. The functions of the council was to lay down the guidelines in respect of minimum qualification for appointment as a teacher in schools. It was also held that Council has the power to make Regulations. It was further held that Council was bound by the directions on questions of policy as the Central Government may give in writing to it from time to time. They also referred to Amrit Vidyapeeth's case to opine that a daydreamer can build a castle in the air or for that matter castle in Spain, but it is absolutely in apposite on the part of the aspirant registered bodies or institutions to admit students and pyramid the foundation relying on the bedrock of legitimate expectation that students would be treated as students who have been admitted in such courses which are valid in law. An educational institution has to conduct itself in an apple pie order. It has to maintain the sacredness of the concept behind imparting education. They are under an obligation to keep in mind that commercialisation of course under the WA2706/09 & con. cases 23 1993 Act is impermissible. Building a superstructure without an infrastructure is nothing but imprudent. This would only lead to unwarranted blindness in the system. In such circumstances, question of legitimate expectation and their interest to protect it is devoid of any substance. The same has to be discouraged. Ultimately, their Lordships opined that while granting affiliation, the examining body shall be free to demand rigorous compliance with the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines or norms which may have been laid down by the examining body concerned. They also cautioned the High Courts not to entertain prayer for interim relief by unrecognised institutions and the institutions which have not been granted affiliation by the examining body.
21. So far as principle of legitimate expectation, it is evident from the materials on record that Government of WA2706/09 & con. cases 24 India addressed to the Secretaries of all the States and also Union Territories dealing with technical institutions bringing to their notice the directions by the Central Government in the matter of policy decisions while discharging the functions and exercising the powers conferred on it under Section 20 of the AICTE Act. The direction was to implement the AICTE Scheme as a composite Scheme without any modification, except scale of pay and directed the respective State Governments to make necessary changes while incorporating the provisions of AICTE Scheme in their respective Statutes, Ordinances, Rules and Regulations. The Scheme was intended to be implemented in all the technical institutions fully financed by the Central Government. The Scheme is nothing but the recommendations made by the AICTE fixing the standards in education. Based on fixation of norms as recommendations, the Scheme of revision and pay scales came to be introduced by the Central Government. Only if WA2706/09 & con. cases 25 State Governments, who wish to adopt and implement the scheme of revised pay scale of teachers in the Engineering Colleges and other technical institutions, would be assisted by Government of India by providing 80% of the additional expenditure involved in giving effect to the Scheme. The remaining 20% of the expenditure must be met by the State Governments from their own resources and same shall not be passed on as liability or any portion thereof to the institutions. After completion of the period of such assistance, State Government is to shoulder the responsibility of maintaining the said revised pay scales. This revision of pay scale was restricted to those posts which were in existence as on 01.01.1986. This was applicable to all degree level technical institutions, including Engineering and Technology faculties/ departments/institutions of the Universities falling under the purview of AICTE except Indian Institute of Technology for which separate proceedings were under consideration.
WA2706/09 & con. cases 26 In order to have the benefit of revised pay scale, the faculty members were required to give in writing that they would abide by the provisions of the Scheme for revision of pay scales. In other words, the faculty members could exercise option or decline to have the benefit. A format how the option has to be exercised was provided along with the papers pertaining to the Scheme. Every one without any exception, including the appellants, had exercised the option opting the revised pay scale under the Scheme of AICTE. None of the teachers in technical institution challenged the scheme on any of the grounds. In that view of the matter, the principle of legitimate expectation as pointed out by the appellants has to be understood so far as the case of the appellants based on the above factual situation. If appellants had legitimate expectation of regular promotions as per the Rules which were in existence as on the date of their joining service cannot continue to have such legitimate expectation once they opted for revision of WA2706/09 & con. cases 27 pay scales as per the Scheme of AICTE. In other words, they exercised option by submitting a format that they would abide by the Scheme which provides higher educational qualifications for promotions to the post of Professor/ Director/Assistant Director, etc. as indicated in the scheme. On the other hand, the faculty members who acquired better educational qualification like Ph.D for the post of Professor, etc., will have the legitimate expectation for promotion based on merit, as they acquired the required qualification and have better chances than those who did not possess the required qualification of Ph.D. Therefore, the principle of legitimate expectation so far as the facts of the present case would tilt in favour of the writ petitioners.
22. Learned senior counsel Sri.Nandakumara Menon places reliance on the decision in Arosan Enterprises Ltd. v. Union of India and another ((1999) 9 SCC 449) to contend that if Rules are framed under Article 309 of the Constitution, they would override all other Regulations.
WA2706/09 & con. cases 28 Reliance is also placed on the decision in Joseph v. State of Kerala (1999 (3) KLT 764). In that case, their Lordships held that private college teachers have no right to continue till 60 years, even though UGC Scheme has been adopted by the Government, so long as adoption of the Scheme is subject to the existing statute enacted under the Kerala University Act regarding the age of superannuation. The decision in George v. State of Kerala (1992 (1) KLT 793) was relied upon to contend that the teachers working in the University have no legal right to continue in service till they attain the age of 60 years on account of the adoption of the UGC Scheme by the Government, as the said adoption was only voluntary. The decision in University of Delhi v. Raj Singh and others (1994 Supp. (3) SCC 516) was relied upon to contend that Regulations of UGC are only recommendatory and not binding on the University.
23. Reliance is placed by him on Government of Andhra Pradesh v. R.Murali Babu Rao and another WA2706/09 & con. cases 29 ((1988) 2 SCC 386). This was a case in which special rules framed under Article 309 of the Constitution were held to override the regulations framed under the Indian Medical Council of India. This was a case where conflict was between the Medical Council Act and Andhra Pradesh Medical and Health Services Special Rules framed under the proviso to Article 309 of the Constitution. Their Lordships opined that the prescription of qualification for recruitment by the Medical Council can only lay down broad guidelines therefore, it was held that the right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to Article 309.
24. S.N. College v. N.Raveendran (2001(3) KLT 938) was again a case where Kerala University Act and application of provisions of UGC Scheme came up for consideration. Their Lordships held that as along as amendments are not effected in the University statutes, WA2706/09 & con. cases 30 scheme would not be applicable to private colleges and the managements are not bound to follow the same. Their Lordships also held that so far as the qualifications to various posts, Kerala University Act alone is applicable.
25. D.Gopalaswamy, Asst. Professor of Civil Engineering v. Thiagarajar College of Engineering (1997 Writ L.R. 549) was also relied upon wherein their Lordships had to consider whether Tamil Nadu Private Colleges Regulations Act would be applicable or AICTE Act are applicable with reference to Article 309 of the Constitution. It was held that AICTE regulations not having become law under Section 23 of the Act, the clarifications issued in Government Order dated 19.08.1989 will apply and no exception could be taken to the applicability thereof.
26. Learned Senior counsel appearing for the appellant Sri.Mathai M.Paikaday relies on various decisions. He refers to Dileep Kumar Garg v. State of Uttar Pradesh ((2009) 4 SCC 753). The controversy was requirement of WA2706/09 & con. cases 31 passing qualifying examination by Diploma holders for earning promotion, thereby treating diploma holders on the same footing as degree holders. Their Lordships held that it was not unconstitutional as the Government is the best judge to take the policy decision in that regard and judicial interference is not warranted as Court could not act as appellate body. We have to note that this was not a case with reference to qualifications of teaching faculty in technical institutions.
27. Nagaland Senior Government Employees Welfare Association and others v. State of Nagaland and others ((2010) 7 SCC 643) is relied upon. Their Lordships were considering Section 3 of the Nagaland Retirement from Public Employment Act, 1991 which was impugned before the Courts wherein the retirement from public service on completion of 35 years of service or on attaining the age of 60 years whichever was earlier came up for consideration. The question was whether this WA2706/09 & con. cases 32 prescription was arbitrary, unreasonable and irrational. Their Lordships held that if the reasons that necessitate the Government to prescribe the rule of retirement on completion of specified years are germane to object sought to be achieved, held; such provision cannot be faulted and reiterated that there is always a presumption in favour of constitutionality of enactment. while considering the power of legislation to regulate conditions of services their Lordships held that it is not proper to put conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts and such exercise is within the domain of legislature and judicial review is restricted. It was further held that by virtue of Article 309 States are fastened with the power to formulate their own policies to regulate conditions of service. It is pertinent to note that we are not faced with similar situation here. We are entirely on a different area i.e., qualifications to be prescribed for the teaching faculty in Technical Institutions. The length of WA2706/09 & con. cases 33 service visa vis retirement is not the controversy with which we are faced.
28. He also relies on the decision in Bharathidasan University and another v. All-India Council for Technical Education and others ((2001) 8 SCC 676) pertaining to AICTE Act contending that their Lordships held that the Regulations framed under the Act requiring the University to obtain approval was held as void and unenforceable. As a matter of fact, when we go through the entire judgment, we notice, under what context such opinion was expressed and facts of that case altogether are different from the facts of the present case. In that case the appellant University was a full-fledged University created under the Bharathidasan University Act and was recognised by the University Grants Commission. When the University commenced courses in technology in various disciplines, AICTE filed a writ petition before the High Court seeking a writ of mandamus to forbear the University authorities from WA2706/09 & con. cases 34 running/conducting any courses and programmes in those technical courses on the ground that University did not apply for and secure prior approval for those courses before the commencement of the courses. They also relied upon the AICTE Act and the statutory regulations made thereunder, particularly Regulation 4, which contemplates even the University to obtain prior approval. The High Court accepted the stand of the AICTE by following the ratio of the decision of a Full Bench of the Andhra Pradesh High Court in Sambasiva Rao's case (M.Sambasiva Rao v. Osmania University ((1997) 1 An LT 629(FB)).
29. In an appeal before the Apex Court, their Lordships held that definition of technical institution under Section 2
(h) indicates that a technical institution cannot include a University. Therefore, the intention of the legislature was that not all institutions whether University or otherwise ought to be treated as technical institutions covered by the Act. Hence, the power to grant approval for starting new WA2706/09 & con. cases 35 technical institutions and for introduction of new courses or programmes in consultation with the AICTE was not applicable in the facts and circumstances of that case. They further held that the AICTE created under the Act was not intended to be an authority either superior to or supervise and control the Universities and thereby superimpose itself upon such Universities merely for the reason that it is imparting/teaching technical education. Reading of the AICTE Act and the provisions of UGC Act in juxtaposition, we find the role of the AICTE vis-a-vis, the Universities are only advisory, recommendatory and a guiding factor and thereby sub-serves the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanction by itself. Their Lordships held so mainly on account of Section 10(k). Section 10(k) specifically restricts its application only to technical institutions as defined under the Act and not generally. Therefore, the Regulation cannot compel the WA2706/09 & con. cases 36 Universities to seek for and obtain prior approval before starting a new department or course or programme in technical education.
30. The facts and circumstances in the present case are entirely different. One has to consider the controversy raised in these matters with reference to the facts and circumstances under which the State Government took financial aid from the Central Government undertaking to strictly adhere to the procedure contemplated under AICTE Regulations in order to maintain high standards so far as quality of education in technical institutions. We are not concerned with approval for any University as such in the present cases.
31. He also referred to paragraphs 10 and 11 of the judgment in State of Madhya Pradesh and others v. Yogendra Shrivastava ((2010) 12 SCC 538) to contend that the Rules framed under Article 309 of the Constitution prevail over executive orders in case of conflict. The non-
WA2706/09 & con. cases 37 practising allowance given to the Medical Officers of State Insurance Service in Madhya Pradesh was the subject matter of controversy. Different categories of Medical Officers were given different scales of pay. Their Lordships held that executive orders or appointment letters cannot be given effect in violation of Article 309 Rules as they are subordinate legislation. The rights and benefits already acquired under unamended rules cannot be taken away by amended rules with retrospective effect.
32. In the present case, it is not a situation where the State has introduced new rules under Article 309 of the Constitution. After undertaking to abide by the conditions while extending the financial benefit to the State of Kerala, so far as the pay scale of teaching staff in the Government Technical Institutions or Colleges, they amended the Special Rules. Later, by introducing Rule 6A, certain benefits were created to one class of persons who were appointed prior to 27.03.1990 and who had crossed the age WA2706/09 & con. cases 38 of 45 years. This is not a situation where executive orders are to be compared with the Special Rules. This is totally a different situation where the terms indicated in the offer made by the Central Government on the recommendations of AICTE after being implemented have relaxed the conditions.
33. Learned senior counsel Mr.K.R.B.Kaimal relies on paragraph 26 of the judgment in Ashok Kumar Uppal and others v. State of J&K and others ((1998) 4 SCC 179), which reads as under:
"26. Power to relax the Recruitment Rules or any other Rule made by the State Government, under Article 309 of the Constitution of which the corresponding provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible. Under service jurisprudence as also the Administrative Law, such a power has necessarily to be WA2706/09 & con. cases 39 conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State Secretariat."
Reading of the above paragraph also clearly indicates the facts involved in that case. Under what conditions the State Government accepted the financial aid has to be seen. Therefore, the facts in the present case are entirely different from the above case.
34. Learned standing counsel for AICTE places reliance on the unreported decision of the Apex Court in Civil Appeal No.1947/2011 arising out of SLP(C)No. 12624/2010. In this case, the issue that arose for consideration was whether the eligibility criteria for admission to the Engineering courses stipulated under the Statutory Rules and Regulations of the State Government/ University could be relaxed or ignored and candidates who do not meet with such eligibility criteria can be given WA2706/09 & con. cases 40 admission on the ground that a large number of seats have remained unfilled in Professional Colleges, if such candidates possess the minimum eligibility prescribed under the norms of the central body (AICTE). Their Lordships, explaining the purpose for which AICTE was established, opined that as per the norms fixed by the AICTE, the minimum eligibility for admission to Engineering courses was 35% for the year 2007-08 so far as the qualifying examination in Physics, Chemistry and Mathematics for candidates belonging to Scheduled Castes and Scheduled Tribes and so far as others, it was 40%. The appellant Technological University in that case was the examining body and affiliating authority for Technical Educational Institutions in the State of Karnataka. Section 20(1) of the Visveswaraya Technological University Act, 1994 empowers the Executive Council of the University to make regulations regarding admission of students and conduct of examinations. The academic senate WA2706/09 & con. cases 41 recommended the minimum eligibility for admission to B.E./ B.Tech. Courses as 45% for general category and 40% for reserved category in the qualifying examination from the academic year 2006-07. Consequently, the University Regulations in this regard came to be amended resulting in the University fixing a marginally higher eligibility criteria as against the eligibility criteria fixed by the AICTE. There was a different eligibility criteria for admission to the candidates admitted directly by the management of the Colleges.
35. The controversy that arose was, though the candidates secured the eligible marks prescribed by the AICTE norms, but as it was less than the norms fixed by the University Regulations, when the list of admissions came to be submitted by the Colleges attached to the University for approval, it was rejected based on the eligibility criteria. This became the subject matter of litigation. In that context, they approached the court and sought for a declaration that WA2706/09 & con. cases 42 their admissions to the course was valid and also sought for a declaration that the AICTE norms prescribing the eligibility criteria alone would govern the admissions to B.E. Following the decision in State of Tamil Nadu v. S.V.Bratheep ((2004) 4 SCC 513), learned single Judge of the High Court dismissed the writ petition and an appeal came to be filed by the students and Division Bench allowed the said appeal. The Division Bench placed reliance on Adhiyaman Educational & Research Institute case (State of Tamil Nadu v. Adhiyaman Educational & Research Institute ((1995) 4 SCC 104)) for allowing the appeal. The University had filed appeals before the Supreme Court. In that case, their Lordships opined that two later judgments after Adhiyaman, clarified the decision in Adhiyaman, i.e., in Dr.Preeti Srivastava and another v. State of M.P. And others ((1999) 7 SCC 120) and State of Tamil Nadu v. S.V.Bratheep ((2004) 4 SCC 513). After referring to several paragraphs of the judgments in Dr.Preeti WA2706/09 & con. cases 43 Srivatava's case and S.V.Bratheep's case, their Lordships held that the object of the State or University fixing the eligibility criteria higher than those fixed by the AICTE was two fold. The first and foremost was to maintain excellence in higher education and ensure that there is no deterioration in the quality of candidates participating in professional Engineering courses. The second object was to enable the State to shortlist the applicants for admission in an effective manner, when there are more applicants than available seats. Once the power of the State and the Examination Body to fix higher qualifications is recognized, the Rules and Regulations made by them prescribing qualifications higher than the minimum suggested by the AICTE will be binding and will be applicable in the respective States unless the AICTE itself subsequently modifies its norms by increasing the eligibility criteria beyond those fixed by the University and the State. They further held that the eligibility criteria fixed by the State WA2706/09 & con. cases 44 and the University increased the standards only marginally, i.e., 5% above the criteria fixed by the AICTE. Therefore, they opined that higher standards fixed by the State or University cannot be held as abnormally high or unattainable by normal students. However, in the said case, the AICTE itself had revised its eligibility criteria subsequently. While summarising the position, they arrived at the following conclusions:
"(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term 'adversely affect the standards' refers to lowering of the norms laid down by Central Body/AICTE.
Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE.
(ii) The observation in para 51(vi) of Adhiyaman to the effect that where seats remain unfilled, the state authorities cannot deny admission to any student satisfying the WA2706/09 & con. cases 45 minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law.
(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/ University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that all seats are in colleges are filled, but to ensure that excellence in stands of higher education is maintained.
(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the state and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations."
WA2706/09 & con. cases 46 They opined that reducing the standards to suit some purpose will be a dangerous trend which will destroy the quality of education. Unless it is established that such standards are arbitrary or adversely affect the students, it cannot be interfered with.
36. Learned standing counsel for AICTE Mr.Krishnamoorthy places reliance on the decision in Annamalai University rep. by Registrar v. Secretary to Government, Information and Tourism Department and others ((2009) 4 SCC 590). In that case the conflict was between the UGC Act which was enacted under Entry 66 of List I of Schedule VII to the Constitution and Open University Act, which was also enacted by the Parliament in exercise of the powers under Entry 25 of List III thereof. Their Lordships held that the question of repugnancy between the said two Acts would not arise. However, the statement of objects and reasons of the Open University Act shows that the formal system of education had not been WA2706/09 & con. cases 47 able to provide an effective means to equalise educational opportunities. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating co-ordination and determination of standards in Universities. The purport and object for which it was enacted must be given full effect. The provisions of the UGC Act are binding on all Universities whether conventional or open. Its powers were held to be very broad. The Regulations framed by the UGC in terms of Sections 26(1)
(e), (f), (g) and (h) of the UGC Act are of wide amplitude. Therefore, they equally apply to Open Universities as also to formal conventional Universities. In the matter of higher education, it is necessary to maintain minimum standards. The standards and co-ordination of work or facilities in Universities must be maintained and for that purpose they are required to be regulated. Even subordinate legislation when validly made becomes part of the Act. The Open WA2706/09 & con. cases 48 University Act was enacted to achieve a specific object, opening new vistas for imparting education in a novel manner. However, it was held that such wide options to the choice of subjects do not mean that despite a parliamentary Act having been enacted to give effect to the constitutional mandate contained in Entry 66 of List I of Schedule VII to the Constitution would not apply to the activities of the Open Universities. Therefore, it was held that even Open Universities are guided by the Regulations framed under the UGC.
37. He also places reliance on the decision in Mathai v. Elizabeth Xavier (2011 (2) KLT 468), wherein following the decisions in T.P.George v. State of Kerala ((1992 Supp. (3) SCC 191) and also B.Bharat Kumar v. Osmania University ((2007) 11 SCC 58), their Lordships held that the UGC Regulations are not mandatory and opined that it cannot make Regulations regarding service conditions in the Universities. He also placed reliance on the decision in WA2706/09 & con. cases 49 Jaya Gokul Educational Trust v. Commissioner & Secretary to Government, Higher Education Deptt., Thiruvananthapuram and another (AIR 2000 SC 1614) to contend that affiliation was a different matter and was not covered by the Central Act. However, the University could not impose any conditions inconsistent with the AICTE Act or Regulations or the conditions imposed by the AICTE.
38. Learned counsel Mr.S.Radhakrishnan relies on P.U. Joshi v. Accountant General ((2003) 2 SCC 632), especially Paragraph 10 which reads as under:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the WA2706/09 & con. cases 50 Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/ subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
39. He also relies on paragraph 10 of the decision in Accountant General, Ahmedabad and others v. WA2706/09 & con. cases 51 Basudeba Dora and others ((2003) 2 SCC 632), which reads as under:
"We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/ abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, ant any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State."
40. Learned senior counsel Smt.Seemanthini relies on the decision in State of Kerala and others v. M/s.Mar Appraem Kuri Co. Ltd. and another (JT 2012 (5) SC 51) on the issue of relaxation of the norms by the State which was fixed by the Union and what happens in such situation. With reference to Articles 73 and 162 of the Constitution of India, dealing with the scope of executive powers of Union WA2706/09 & con. cases 52 and the State, she referred to a constitutional bench judgment in Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab (AIR 1955 SC 549). Their Lordship held that these two articles are primarily concerned with the distribution of the executive power between the Union on one hand and the States on the other hand. Therefore, they do not intend to mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be can proceed to function in respect to them. They have clarified the position by saying that the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlines Article 73 of the Constitution. It was further held that it would not be possible to frame an exhaustive definition of what WA2706/09 & con. cases 53 executive functions means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is spelt out clearly in the provisions of Article 154 of the Constitution. But, it does not flow from this Article that in order to enable the executive to function, there must be a law already in existence and the powers of the executive are limited merely to the carrying out these laws.
41. She also relies upon the decision in Food Corporation of India, Alleppey v. Alleppey Municipality and others (AIR 1996 Kerala 241) with reference to Article 285 of the Constitution. This is a case pertaining to Kerala Municipal Corporations Act. Section 101 is in relation to property tax. The question was whether the property and the buildings owned by Union of India and transferred to FCI are exempted from paying property tax.
WA2706/09 & con. cases 54 It was held that if the properties and buildings are owned by Union of India, which was transferred to FCI for its occupation, are exempted from taxation by State or any other authority within the State. It was further held that the properties and buildings acquired and constructed by FCI after its constitution or the properties of FCI are its own properties, hence they will not have immunity from paying tax. In this context, how one should consider the circulars issued by Union of India relating to payment of service charges to local bodies in respect of Central Government properties was the issue raised before the court. Their Lordships held that they are not administrative instructions but are executive orders having force of law falling within the ambit of Article 73 of the Constitution.
42. Reliance is placed on the decision in U.P.State Electricity Board v. Pooran Chandra Pandey and others ((2011) 11 SCC 92). Their Lordships had an occasion to consider the judgment in Umadevi's case WA2706/09 & con. cases 55 (Secretary, State of Karnataka and others v. Uma Devi ((2006) 4 SCC 1)). The issue was whether judgment in Umadevi's case could be applied mechanically without reference to the facts of a particular case. Ultimately, their Lordships held that even a little difference in facts can make Umadevi's case inapplicable to the facts of a particular case. Therefore, though Umadevi's case has to be applied in conformity with Article 14 of the Constitution, but the fact remains that every judgment has to be read as applicable to the particular facts proved or assumed to be proved. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. It is also a well established principle that courts should not place reliance on the decisions without WA2706/09 & con. cases 56 discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed (Reliance is placed on State of Orissa v. Sudhansu Sekhar Misra (AIR 1968 SC 647, Ambica Quarry Works v. State of Gujarat and others ((1987) 1 SCC 213), Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. ((2003) 2 SCC 111), Bharat Petroleum Corporation Ltd. and another v. N.R.Vairamani and another (AIR 2004 SC 4778).
43. She also places reliance on the decision in ICICI Bank Ltd. v. Official Liquidator of APS Star Industries Ltd. and others (AIR 2011 SC 1521). The issue that came up for consideration before the Apex Court was whether the guidelines issued by the RBI dated 13.07.2005 as restructuring measure for solving issue of Non Performing Accounts Scheme (NPAS) is ultravires to Banking Regulation Act. Their Lordships held that accepting deposits and lending by itself is not enough to constitute WA2706/09 & con. cases 57 banking business. Therefore, assignment of debts by banks inter se cannot be treated as an impermissible activity under the Act. When guidelines are made for solving the issue of NPA as reconstructing measure, it has to be considered as a banking policy and cannot be treated as "trading".
44. Other learned counsel for the respondents rely upon the following decisions. So far as Adhiyaman Educational & Research Institute's case (supra), their Lordships said, State Acts cannot lay down standards and requirements higher than those prescribed by the Central Act for technical institutions and cannot deny seats to applicants on the ground that they do not fulfil such higher standards/requirements. Hence, derecognition by State Government or disaffiliation by State University on grounds which are inconsistent with the Central Act would be inoperative. Decisions in Dr.Preeti Srivastava and another v. State of M.P and others ((1997) 7 SCC 120) WA2706/09 & con. cases 58 and Jaya Gokul Educational Trust v. Commisioner & Secretary to Government Higher Education Department and another ((2000) 5 SCC 231) were also referred. In Jaya Gokul's case, their Lordships held in paragraphs 26 and 27 as under:
"26. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE's approval dated 30-04-95 showed that the approval had been given by the State Level Committee of which they were obviously members. It is, therefore, not understandable how the Director had given a contrary opinion to the State Government Regulation 8(4) of AICTE only required calling for the "comments/recommendations"
of the State Government and of the
University. In case, there was difference
between the State Government, University or the Regional Committee the Central Task Force was to make a final recommendations under Regulation 8(4). Here the letter of approval of the AICTE dated 30-04-95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in WA2706/09 & con. cases 59 its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc.
27. The so called 'policy' of the State as mentioned in the counter-affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamingal Medical Education & Charitable Trust v. State of Tamil Nadu.(1996) 3 SCC 15 : (1996 AIR SCW 926 : AIR 1996 SC 2384), which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25, List III, it was held (see p.35 para 34) that the "essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone". Therefore, the State could not have any "policy" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval WA2706/09 & con. cases 60 was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State Government could always write to the AICTE, to enable the latter to take appropriate action."
45. In HARISH VERMA'S case ((2003) 8 SCC 69), their Lordships, after referring to Dr.Preeti Srivastava's case, opined, the admission given to the in-service candidates who have secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India deserves to be struck down and set aside by opining that the Full Bench decision of the Rajastan High Court, placing reliance on the dissenting opinion of one Judge in Dr.Preeti Srivastava's case (supra), overlooking the majority opinion, which is the law laid down by the Constitution Bench having binding force, was erroneous. So far as S.V.Bratheep (Minor)'s case (supra), their Lordships have clearly indicated that the State Government could prescribe standards for admission to Engineering Colleges, WA2706/09 & con. cases 61 but they should not be adverse to or lower than those prescribed by AICTE. However, the State Government can prescribe standards higher or additional to those prescribed by AICTE, was the opinion expressed by the Apex Court.
46. Though these cases were once heard and reserved for orders, it was again listed for further arguments when the latest judgment of the Apex Court was placed on record by the learned counsel for the appellants, in the case of Association of Management of Private Colleges v. All India Council for Technical Education and others in Civil Appeal No.1145/2004 dated 25.04.2013 (reported in (2013) 8 SCC 271). Learned standing counsel for AICTE also places reliance on the very same judgment and contends that facts in the above case are entirely different from the controversy raised in the present case. In the said case, particular college of the appellant and other appellants sought approval of AICTE for running MCA courses. The controversy was whether MCA course is to be WA2706/09 & con. cases 62 approved by AICTE. While considering the facts of that case, their Lordships referred to the judgments in Bharatidasan University case, Adhiyaman Educational & Research Institute case, Jaya Gokul Educational Trust case, Vikram Sarabhai Educational Trust case, etc. After referring to the definition of Technical Institution defined under Section 2(h) of the Act, opined that cautiously and deliberately University was excluded from the definition of technical institution. Therefore, AICTE was expected to interact with University and departments and it is limited to the purpose of ensuring proper maintenance of norms and standards in the technical education system. Therefore, there was no necessity for the Universities, its colleges, Constituent institutions and units from seeking prior approval from AICTE either to start new technical institution or to introduce new course.
47. As a matter of fact, in the present case, we are not concerned with the approval of the AICTE for starting new WA2706/09 & con. cases 63 technical institutions or new courses by University. We are dealing with a controversy whether State of Kerala was justified in introducing Rule 6A to the Special Rules of 1967 relaxing the qualification prescribed by AICTE norms.
48. The Kerala Public Services Act came into force in 1968. Section 2 refers to regulation of recruitment and conditions of service, which reads as under:
"2. Regulation of recruitment and conditions of service.- (1) The Government may make rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala.
(2) Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly agrees that the rules should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without WA2706/09 & con. cases 64 prejudice to the validity of anything previously done under that rule."
Statement of objects and reasons of the Act is also stated. Article 309 provides, subject to the provisions of the Constitution, that acts or the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the State. But, when no such Act has been enacted in the State, the practice was to issue Rules under the proviso to Article 309 of the Constitution. As the said Rules were not subjected to scrutiny by the legislative assembly, it was necessary to enact a legislation empowering the Government to make rules governing the conditions of service of persons appointed to public services and posts in connection with the affairs of the State subject to scrutiny by the legislative assembly. Section 3 refers to continuance of existing rules, which reads as under:
"3. Continuance of existing rules.- All rules made under the proviso to Article 309 WA2706/09 & con. cases 65 of the Constitution of India, regulating the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala and in force immediately before the 17th September, 1968, shall be deemed to have been made under this Act and shall continue to be in force unless and until they are superseded by rules made under this Act."
Reading of Sections 2 and 3 clearly indicates that there was no special legislation for regulation of recruitment and conditions of service till 1968 Act came into force. In 1967, only Special Rules were in existence and by virtue of Section 3 of the Act they are deemed to have been made under the Kerala Public Services Act. In this background, we have to refer to Articles 309, 245, 246 and 254 of the Constitution vis-a-vis the norms of the AICTE and the special rules, especially with reference to Rule 6A (amendment brought into force in 2004).
49. Entry 66 of VII Schedule under List I of the Constitution deals with "Co-ordination and determination of standards in institutions for higher education or research WA2706/09 & con. cases 66 and scientific and technical institutions". The Kerala Public Services Act of 1968 falls under Entry 41 of List II of VII Schedule. Entry 25 in List III is with reference to the education including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocation and technical training of labour.
50. AICTE Act of 1987 is made for the subject falling under Entry 66 of List I so far as maintenance of standards in technical institution, etc. Though prior to introduction of Kerala Public Services Act, Special Rules for the Kerala Technical Education were in existence, by virtue of Section 3 of the Public Services Act, they are deemed to be the rules under Public Services Act which falls under Entry 41 of List II. Therefore, amendment brought to Rule 6 by inserting Rule 6A in 2004 to the Special Rules is also to be considered as part of the rules framed under Public Services Act. Therefore, we cannot treat the Special Rules of 1967 as WA2706/09 & con. cases 67 Rules framed under Article 309 any more. Article 309 reads as under:
"309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regular the recruitment, and conditions service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
It is well settled that provisions of Article 309 are only enabling provision. In other words, no duty or obligation is cast upon the legislature to enact any Act or on the President or the Governor to make rules with regard to WA2706/09 & con. cases 68 conditions of services of civil servants. It is also said, in the Act done by the Government in exercising its executive power relating to civil service cannot therefore be said to be invalid merely because no rule or law has been made under Article 309. Once rules are made under Article 309, they regulate until legislation is made in that behalf by appropriate legislature and with that legislation or rules qualifications for civil services may be laid by the Government by executive orders.
51. In the present case, though Special Rules pertaining to service conditions in technical institutions were the rules made under Article 309, once these rules are deemed to be the rules framed under Public Services Act, question of applying Article 309 does not arise. In the present case, we have to consider the norms brought by AICTE which came to be approved by Union of India and directions were issued to all the States to implement the entire revised Scheme of AICTE for revised pay scales in the WA2706/09 & con. cases 69 Special Rules of 1967. The source of power to fix norms for maintaining standards in higher education is drawn from Section 10(i) of AICTE Act. Revised Scheme brought by Union of India adopted by State Government did indicate compulsory implementation of qualifications for the posts of Professor, Director, Joint Director and Assistant Professor. Though State Government implemented said qualifications in 2003, by inserting Rule 6A to the Special Rules in 2004, relaxed qualification prescribed as per AICTE norms to certain classes of persons based upon their age and the date of joining the service.
52. As a matter of fact, though State Government initially supported said amendment at the time of disposal of the writ petitions, even filed writ appeals challenging the judgment of the learned single Judge, during the pendency of the appeals, State withdrew all the appeals. In other words, the State is not interested to go ahead with amended Rule 6A. As we are concerned with the select list based on WA2706/09 & con. cases 70 Rule 6A, necessarily we have to consider validity of Rule 6A under Special Rules vis-a-vis norms fixed under the revised Scheme under Section 10(i) of AICTE Act.
53. Article 245 of the Constitution reads as under:
"245. Extent of laws made by Parliament and by the Legislatures of States.- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation."
Reading of Article 245 clearly indicates State legislature cannot be fettered from legislating within the ambit of List II or List III of VII Schedule unless there is provision in the Constitution itself. A power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. A piece of legislation need not WA2706/09 & con. cases 71 necessarily fall within the scope of one entry alone. Many a time more than one entry may overlap to cover the subject matter of a single piece of legislation. If a legislation purporting to be under one legislative entry is challenged on the ground of lack of legislative competency, the State can always support it on the basis of any other entry within the legislative competence of the legislation. Source of competence of legislation relates to Articles 245 and 246 and other Articles following them.
54. The AICTE Act of 1987 was enacted to provide for the establishment of an All India Council for Technical Education with a view to proper planning and co-ordinated development of the technical education system through out 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 10 under Chapter III of the WA2706/09 & con. cases 72 Act deals with the powers and functions of the Council. Section10(1) of the Act says:
"10(1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical and management education and maintenance of stands and for the purposes of performing its functions under this Act;
.......................
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations."
The revised Scheme envisages staff qualification in order to maintain quality and high standard of technical education. On many occasions, Hon'ble Apex Court has said maintenance of high standard of education includes faculty having higher and better qualifications. The revised Scheme prescribes higher qualification for the post of Professor, Director, Joint Director and Assistant Professor. This was a condition to avail financial assistance offered by Union of India which the State has taken more than once. The WA2706/09 & con. cases 73 revised Scheme reflects nothing but the prescription of norms as envisaged under Section 10(1)(i) of the AICTE Act. Therefore, they cannot be treated as mere executive directions. An expert committee has gone into details after due deliberation. Later, the recommendations of AICTE based on the opinion of the expert committee was approved by Union of India in the revised Schemes for extending financial benefit. Challenge was made to the revised Scheme on the ground that there was no regulation in this regard brought into force under Section 23 of AICTE Act. Section 23 of the AICTE Act reads as under:
"23. Power to make regulations.- (1) The Council may, by notification in the Official Gazette, make regulation not inconsistent with 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:-
(a) regulating the meetings of the Council and the procedure for conducting WA2706/09 & con. cases 74 business thereat;
(b) the terms and conditions of service of the officers and employees of the Council;
(c) regulating the meetings of the Executive Committee and the procedure for conducting business thereat:
(d) the area of concern, the constitution, and powers and functions of the Board of Studies;
(e) the region for which the Regional
Committee be established and the
constitution and functions of such
Committee."
Clause (1) deals with the power of Council to make regulations generally to carry out the purpose of the Act.
Clause (2) deals with specific matters indicated at sub- clauses (a) to (e) stated above. Reading of the above provision along with Section 10 clearly indicates there was no obligation on the part of the Council to bring regulations in relation to norms referred to at Section 10. Even if it is made by regulations it cannot be invalidated as Council has power to make regulations to carry out the purposes of the WA2706/09 & con. cases 75 Act in general. Therefore, for want of regulations prescribing the norms envisaged at Section 10(1)(i), the revised Scheme cannot be invalidated. The revised Scheme is brought into force under a competent legislation. Hence, it has statutory force.
55. The Special Rules of 1967 are deemed to be the Rules under the Kerala Public Services Act. Therefore, it also has statutory force. Now, we have to see which of the provisions would prevail over the other one. Apparently, both the revised Scheme under AICTE norms and Special Rules are made under respective enactments. The legislature concerned has conferred a subordinate agency to make provisions or Rules for the better carrying of, in detail, of the the Scheme of any enactment. By the delegation of such a subordinate function, the legislature does not efface itself. In other words, by delegating a subordinate function (whether administrative or legislative) the delegating authority does not divest itself of its powers. WA2706/09 & con. cases 76 The legislature at times may lay down policy of the legislation and then leave it to a subordinate agency or some executive authority, the power of making Rules and regulations to carry out the purpose of legislation. When such power is exercised by an Administrative or other subordinate law making body, under statutory authority, it becomes a subordinate legislation. So far as the legislature, it is delegated legislation, but it is a permissible delegation if has laid the policy. The subordinate legislation must be made in consonance with the Constitution scheme. It should not be arbitrary. It must be reasonable; be it substantive or a subordinate legislation. The revised scheme recommended by AICTE which is approved by Union of India and the Special Rules of the State are subordinate legislations.
56. Article 246 reads as under:
"246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of WA2706/09 & con. cases 77 the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to made laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List."
The words "notwithstanding anything" in the beginning of clauses (1) and (2) and the words "subject to" in the beginning of clause (3) of the above Article indicates supremacy or predominance of the union legislature in case of overlapping as between List I, II and III. The principle underlying the non-obstinate clause may be invoked only in WA2706/09 & con. cases 78 the case of irreconcilable conflict. Though the Parliament and State Legislatures are supreme in their respective assigned fields, it is for the court to interpret laws made by Parliament and the State Legislature in such a manner or as far as possible to avoid any conflict. Ultimately, if the conflict is unavoidable and the two legislations are irreconcilable then by force of non- obstinate clause of Article 246, legislation made by Parliament would prevail not withstanding the power of the State Legislature to make laws with respect to a subject enumerated in the state list.
57. Article 254 reads as under:
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the laws made by the Legislature for such State, or, as the case may be, the existing law, shall prevail and WA2706/09 & con. cases 79 the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
The above Article clearly indicates repugnancy between union and state laws. Where two enactments altogether operate on different fields Article 254 has no application. The question of repugnancy between parliamentary legislation and state legislation can arise in two ways: (1) Where the legislation though enacted with respect to the allotted sphere, overlap and conflict, (2) where the two WA2706/09 & con. cases 80 legislations are with respect to same matters in the concurrent list and there is a conflict. In both the situations, parliamentary legislation will predominate in the first phase by virtue of non obstinate clause in Article 246(1), in the second situation by reason of Article 254(1).
58. It is relevant to refer to the decision of J.B.Educational Society's case (Government of A.P. and another v. J.B.Educational Society and another ((2005) 3 SCC 212)). In this case, their Lordships had an occasion to consider Articles 245, 246 and 254(2) of the Constitution and how they operate in their respective fields. They further opined that respective fields of legislation of parliament and State legislature though permissible, on account of non- obstante clause of Article 246(1) of the Constitution, whenever repugnancy between parliamentary legislation and State legislation arises, the duty of the Court is to interpret the enactments to avoid conflict between the two as far as possible. But, in case of unavoidable WA2706/09 & con. cases 81 inconsistencies and conflict between the two, the parliamentary enactment will prevail.
59. In Prof.Yashpal's and another v. State of Chhattisgarh and others ((2005) 5 SCC 420), their Lordships held that though incorporation of a university as a legislative head is a State subject (Entry 32 List II) but basically a university is an institution for higher education and research and relevant Entry 66 of List I is applicable, which is meant for coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. If a clash between the powers of the State and that of the Union arises, one has to see cautiously what was the purpose for which such Entry was made in a particular list and whether there is non-obstante clause or indication or the use of expression "subject to". After referring to Adhiyaman Educational and Research Institute's case (supra), and Osmania University Teachers' Association v. State of A.P. ((1987)4 SCC 671) WA2706/09 & con. cases 82 and various other decisions, their Lordships ultimately held at paragraph 33 of the judgment as follows:
"33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a legislative head being in the State List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained."
60. It is also relevant to refer to the case of State of Kerala & Ors. v. M/s.Mar Appraem Kuri Co. Ltd. & Anr. (JT 2012(5) SC 51), their Lordships had an occasion to consider various Articles regarding repugnancy of the enactments. Paragraph 16 of the said judgment is relevant, which reads as under:
WA2706/09 & con. cases 83
"16. Article 254 deals with inconsistency between laws made by Parliament and laws made by the Legislatures of States. It finds place in Part XI of the Constitution. Part XI deals with relations between the Union and the States. Part XI consists of two Chapters.
Chapter I deals with Distribution of Legislative Powers. Articles 245 to 255 find place in Chapter I of Part XI. Article 245 deals with extent of laws made by Parliament and by the Legislatures of States. The verb "made", in past tense, finds place in the Head Note to Article 245. The verb "make" in the present tense, exists in Article 245(1) whereas the verb "made", in the past tense, finds place in Article 245(2). While the legislative power is derived from Article 245, the entries in the Seventh Schedule of the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. While the Parliament has power to make laws for the whole or any part of the territory of India, the Legislature of a State can make laws only for the State or part thereof. Thus, Article 245, inter alia, indicates the extent of laws made by Parliament and by the State Legislatures. Article 246 deals with subject matter of laws made by Parliament and by the Legislatures of States. The verb "made"
once again finds place in the Head Note to Article 246. This Article deals with distribution of legislative powers as between the Union and the State Legislatures, with reference to the different Lists in the Seventh Schedule. In short, the Parliament has full and exclusive powers to legislate with respect to matters in List I and has also WA2706/09 & con. cases 84 power to legislate with respect to matters in List III, whereas the State Legislatures, on the other hand, have exclusive power to legislate with respect to matters in List II, minus matters falling in List I and List III and have concurrent power with respect to matters in List III. (See: A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan (AIR 1941 F.C. 47). Article 246, thus, provides for distribution, as between Union and the States, of the legislative powers which are conferred by Article 245. Article 245 begins with the expression "subject to the provisions of this Constitution". Therefore, Article 246 must be read as "subject to other provisions of the Constitution". For the purposes of this decision, the point which needs to be emphasized is that Article 245 deals with conferment of legislative powers whereas Article 246 provides for distribution of the legislative powers. Article 245 deals with extent of laws whereas Article 246 deals with distribution of legislative powers. In these Articles, the Constitution framers have used the word "make" and not "commencement"
which has a specific legal connotation. (See: Section 2(13) of the General Clauses Act, 1897). One more aspect needs to be highlighted. Article 246(1) begins with a non- obstante clause "Notwithstanding anything in clauses (2) and (3)". These words indicate the principle of federal supremacy, namely, in case of inevitable conflict between the Union and State powers, the Union powers, as enumerated in List I, shall prevail over the State powers, as enumerated in Lists II and III, and in case of overlapping between Lists WA2706/09 & con. cases 85 III and II, the former shall prevail. (See: Indu Bhusan Bose v. Rama Sundari Devi & Anr.
(1970(1)SCR 443 at 454). However, the principle of federal supremacy in Article 246 (1) cannot be resorted to unless there is an "irreconcilable" conflict between the entries in Union and State Lists. The said conflict has to be a "real" conflict. The non-obstante clause in Article 246(1) operates only if reconciliation is impossible. As stated, Parliamentary Legislation has supremacy as provided in Article 246(1) and (2). This is of relevance when the field of legislation is in the Concurrent List. The Union and the State Legislatures have concurrent power with respect to the subjects enumerated in List III. (See: Article 246(2)]. Hence, the State Legislature has full power to legislate regarding subjects in the Concurrent List, subject to Article 254(2), i.e., provided the provisions of the State Act do not come in conflict with those of the Central Act on the subject. [See: Amalgamated Electricity Co. (Belgaum) Ltd. v. Municipal Committee, Ajmer [1969(1) SCR 430]. Thus, the expression "subject to" in clauses (2) and (3) of Article 246 denotes supremacy of Parliament. Further, in Article 246(1) the expression used is "with respect to". There is a distinction between a law "with respect to"
and a law "affecting" a subject matter. The opening words of Article 245 "Subject to the provisions of this Constitution" make the legislative power conferred by Article 245 and Article 246, as well as the legislative Lists "subject to the provisions of the Constitution". Consequently, laws made by a Legislature may be void not only for lack of WA2706/09 & con. cases 86 legislative powers in respect of the subject-
matter, but also for transgressing constitutional limitations. [See: Para 22.6 of Vol.3 at Page 2305 of the Constitutional Law of India by H.M. Seervai Fourth Edition]. This aspect is important as the word "void"
finds place in Article 254(1) of the Constitution. Therefore, the Union and State Legislature have concurrent power with respect to subjects enumerated in List III. Hence, the State Legislature has full power to legislate regarding the subjects in List III, subject to the provision in Article 254(2), i.e., provided the provisions of the State Act do not conflict with those of the Central Act on the subject. Where the Parliament has made no law occupying the field in List III, the State Legislature is competent to legislate in that field. As stated, the expression "subject to" in clauses (2) and (3) of Article 246 denotes the supremacy of the Parliament.
Thus, the Parliament and the State Legislature derive the power to legislate on a subject in List I and List II from Article 246 (1) and (3) respectively. Both derive their power from Article 246(2) to legislate upon a matter in List III subject to Article 254 of the Constitution. The respective Lists merely demarcate the legislative fields or legislative heads. Further, Article 250 and Article 251 also use the word "make" and not "commencement". If one reads the Head Note to Article 250 it refers to power of the Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. The word "made"
also finds place in Article 250(2). In other words, the verb "make" or the verb "made" is WA2706/09 & con. cases 87 equivalent to the expression "to legislate". Thus, making of the law is to legislate with respect to any matter in the State List if Proclamation of Emergency is in operation. The importance of this discussion is to show that the Constitution framers have deliberately used the word "made" or "make" in the above Articles. Our Constitution gives supremacy to the Parliament in the matter of making of the laws or legislating with respect to matters delineated in the three Lists. The principle of supremacy of the Parliament, the distribution of legislative powers, the principle of exhaustive enumeration of matters in the three Lists are all to be seen in the context of making of laws and not in the context of commencement of the laws."
With the above principles and the law laid down by the Apex Court, we have to see the facts of the present case. The revised scheme of AICTE is by virtue of parliamentary legislation and the Special Rules of the State is by state legislation. Then coming to the actual controversy in question it is with regard to standards of technical education. So far as medical education at post graduate level Constitution Bench of Supreme Court in Dr.Preethi Srivastava and another v. State of M.P. and others WA2706/09 & con. cases 88 (supra) had an occasion to deal with the same and held as under:
"55. We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1) (set out earlier) is in three parts. The first part provides that the Council may prescribe standards of postgraduate medical education for the guidance of Universities. The second part of sub-section (1) says that the Council may advise Universities in the matter of securing uniform standards for postgraduate medical education throughout. The last part of sub-section (1) enables the Central Government to constitute from amongst the members of the Council, a Postgraduate Medical Education Committee. The first part of sub-section (1) empowers the Council to prescribe standards of postgraduate medical education for the guidance of Universities. Therefore, the Universities have to be guided by the standards prescribed by the medical council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practice. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the WA2706/09 & con. cases 89 courses of study and examinations. The universities are bound to furnish the information so required by the Council. The Postgraduate Medical Committee is also under Section 17, entitled to appoint Medical Inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory, the Medical Council may withdraw recognitition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19-A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of postgraduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh v. State of Bihar to the effect that the standars of postgraduate medical education prescribed by the Medical Council of india are merely directory and the universities are not bound to comply with the standards so prescribed.WA2706/09 & con. cases 90
56. In State of M.P. v. Nivedita Jain, the provisions of the Indian Medical Council Act and the regulations framed for undergraduate medical courses were considered by the Court. The Court said that while Regulation I was mandatory, Regulation II was only recommendatory and need not be followed. We do not agree with this line of reasoning for the reasons which we have set out above.
57. In the case of Medical Council of India v. State of Karnataka, a Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain. It has also disagreed with Ajay Kumar Singh v. State of Bihar and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P.Roshana (SCC p.580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observances. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with WA2706/09 & con. cases 91 this reasoning." (underlining supplied) So far as technical education, three Judges of the Apex Court had occasion to deal with the same in Bratheep's case (supra) wherein their Lordships held as follows:
"Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is, no doubt, true that AICTE prescribed two modes of admission - one is merely dependent on the qualifying examination and the other, dependent upon the marks obtained at the common entrance test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than WA2706/09 & con. cases 92 what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by AICTE would allow admission only on the basis of the marks obtained in the qualifying examination, the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr.Preeti Srivastava case. It is no doubt true, as noticed by this Court in Adhiyaman case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the WA2706/09 & con. cases 93 candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr.Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it."
In the above case, their Lordships clearly indicated that State Government could prescribe standards or admission to Engineering Colleges, but they should not be adverse to or lower than those prescribed by AICTE. However, the State Government can prescribe standards higher or additional to those prescribed by AICTE, was the opinion WA2706/09 & con. cases 94 expressed by the Apex Court. The Apex Court in Civil Appeal No.1947/2011 (S.L.P.12624/2010) (supra), after referring to Dr.Preeti Srivastava (Constitutional Bench) and Bratheep (Three Judges Bench) cases, explains how the norms or scheme of AICTE has to be followed when dealing with the standards of education which not only refer to the bench mark prescribed for securing seat in technical education but also the qualifications of teaching faculty.
61. Though several decisions with reference to the subject falling under List I of VII Schedule like UGC and AICTE were discussed, ultimately, with reference to the facts of each case the court has to see what exactly is applicable. In the present case, we are not concerned with a situation where approval of AICTE in a University pertaining to technical course or in Colleges run under the University, is necessary or not. Therefore, the decisions in Bharatidasan University and Association of Management of Private Colleges is not applicable to the facts of the present case.
WA2706/09 & con. cases 95
62. In the light of the above discussions and reasonings State Government was under the obligation to implement the revised scheme of AICTE in toto which initially was implemented by the State Government, however, it was not justified in inserting Rule 6A to the Special Rules. Rule 6A is arbitrary and unreasonable as it creates a classification among the similarly situated persons rather benefits a group of persons who are not having better qualification than the other group who have acquired better educational qualification.
63. The principles laid down in three Judges Bench decision and the Constitutional Bench followed by unreported decision referred to above clearly indicate the norms, if at all State or any authority authorised intends to form, can never be lesser than the norms fixed by the AICTE or the Council or the body meant for the particular purpose. It would not be invalid if the norms are higher than the minimum bench mark fixed by the concerned authority WA2706/09 & con. cases 96 or the body. In the present case, introducing Rule 6A to the Special Rules is nothing but fixing the qualification norms much below the bench mark indicated by the AICTE, therefore, viewed from any angle, Rule 6A cannot be approved and it deserves to be quashed being repugnant to the norms fixed by AICTE.
In that view of the matter the learned Judge was justified in allowing the writ petitions. We find no good ground to interfere with the judgment and the directions given thereunder by the learned single Judge. Accordingly, the appeals are dismissed. No order as to costs.
Manjula Chellur, Chief Justice V.Chitambaresh, Judge tkv