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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1205-06 of 1987.

From the Judgment and Order dated 24.3. 1987 of the Andhra Pradesh High Court in Writ Petition No. 15582 of 1986.

Dr. Y.S. Chitale, B. Parthasarathy and K.V. Sreekumar for the Appellant.

T.S. Krishnamurthy Iyer, T.V.S.N. Chari, Ms. V. Grover and Ms. Sunita M. for the Respondents.

The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal on a certificate raises a short but an important question as to the Constitu- tional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act No. 26 of 1986) (called shortly "The Commissionerate Act"). The question is whether the enactment falls within Entry 66 List I or Entry 25 List III--Concurrent List of the Seventh Schedule to the Consti- tution. The High Court of Andhra Pradesh has upheld its validity by holding that the Act falls under the latter Entry, but granted a certificate for leave to appeal to this Court under Article 133(1) of the Constitution. The said Act was enacted on the basis of the recommenda- tions of a high power committee constituted by the State Government to study the higher education system in the State of Andhra Pradesh with special reference to its curricula, courses of study, finance and management. The Committee in its report submitted to the Government observed, inter-alia, that there is no proper coordination and academic planning among the various bodies like Universities, Directorate of Higher Education and University Grants Commission etc. There is no policy perspective in the development of higher educa- tion system. The Committee said that in order to streamline the general working and oversee the development of higher education in the State, there is need to constitute a Com- mission to advise the Government in that matter. The Government appears to have accepted the said report of the Committee. That is obvious from the Preamble to the Commissionerate Act. It states that "Act is to provide for the Constitution of a Commissionerate to advise the Govern- ment in matters relating to Higher Education in the State and to oversee its development with perspective planning and for matters connected therewith and incidental thereto." Section 2(e) defines "Higher Education" to mean interme- diate education and education leading to a degree or post graduate degree including professional and technical educa- tion.

Section 16 states that the Commissionerate shall be guided by such directions issued by the Government on ques- tions of policy relating to State purposes or in case of any emergency as may be given to it by the Government. Section 18 confers power to the Government to make rules to carry out all or any of the purposes of the Act. Section 19 provides power to the Commissionerate to make regulations consistent with the Act and the rules made thereunder. The sole contention of Dr. Chitale, learned counsel for the appellant is that the Commissionerate Act is just a duplicate of the University Grants Commission Act ("The UGC Act") and the State has no legislative power at all to enact it, since it squarely falls under Entry 66 List I. But the contention of Mr. Krishnamurthy Iyer, learned counsel for the State of Andhra Pradesh, is to the contrary. While supporting the judgement of the High Court, he submitted that the enactment in pith and substance falls within Entry 25 of List III and not under Entry 66 of List I of the Seventh Schedule. For proper consideration of the conten- tions we may set out these two Entries:

Entry 66 List I:

"Co-ordination and determination of standards in institution for higher education or research and scientific and techni- cal institutions."

Entry 25 List III:

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

Till January 3, 1977, Education was a State subject under Entry 11 in List II. By the 42nd Amendment Act, 1976, Entry 11 was deleted and it was placed in the Concurrent List by enlarging the Entry 25, as set out above. Entry 25 List III relating to education including tech- nical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to co-ordinate and determine the stand- ards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule.

We may now refer to some of the decisions dealing with the inter action of Entry 66 List I and Entry 25 List III. In Gujarat Universi- ty, Ahmedabad v. Krishna Ranganath, [1963] Suppl. 1 SCR 112, 137. Shah J. speaking for the majority view of the Constitution Bench observed:

"Item 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression "Subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded mat- ters cannot be undertaken by the State Legis- latures. In Hingir Rampur Coal Co. v. State of Orissa [1961] 2 SCR 537, this Court in consid- ering the import of the expression "Subject to" used in an entry in List II in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in an entry in List II the power is taken away from the State Legislature. Power of the State to Legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament."