SARASWATHI ANIMAL EDUCATIONAL TRUST Vs. UNIVERSITY OF MADRAS

JUDGEMENT

(1.) ALL the above writ petitions have been filed by certain trusts and another person who had started Private Educational Institutions against the orders of the respondent/ University, refusing to grant affiliation.

(2.) THE petitioner in W. P. No. 19248 of 1993 is an educational trust established for furthering the educational needs of the people in the rural areas. THE said trust desired to establish an Engineering College at Mathur, Thiruvannamalai and acquired about 25 acres of land in Mathur, Thiruvannamalai. THE petitioner trust also made necessary arrangements for equipping the college with necessary facilities and took a premises in Thiruvannamalai to campus the first year course in Engineering for the academic year 1993-94. THE petitioner seems to have made an application to the respondent for the grant of affiliation for the three year Degree Courses in Mechanical Engineering, Electrical Engineering, electronics Engineering and Computer Science and Engineering with an intake of sixty students in each of the aforesaid courses. THE petitioner obtained an order from this Court directing the All India council for Technical Education (hereinafter called an AICTE) to consider the claims of the petitioner on merits without insisting upon the orders of the State Government. Accordingly aicte deputed an expert committee to inspect the petitioner's college for the purpose of ascertaining the facilities provided in the institution. THE said committee after inspection submitted a report, on the basis of which AICTE passed an order on 19. 7. 1993 granting approval for the establishment of Aruna Engineering College by the petitioner for the Degree courses in Mechanical Engineering, Electrical and Electronics Engineering and computer Science and Engineering from this academic year 1993-94 with an intake of sixty students in each one of the aforesaid courses. THE respondent-University was requested to grant necessary affiliation for the said courses from this academic year (1993-94 ). THEreafter the University appointed a committee to inspect the petitioner institute. It is seen that the committee members of both AICTE and the respondent university have recommended for the starting of the courses in the petitioner''s college from this academic year 1993-94. However, by the impugned order the petitioners have been informed that the syndicate as its meeting held on 15. 10. 1993 has resolved not to grant affiliation as the proposed institution does not satisfy the university''s requirements and as such it is not feasible of compliance with affiliation to the proposed institution. It was under those circumstances, writ petition No. 19248 of 1993 came to be filed challenging the order dated 18. 10. 1993 passed by the respondent- University. Almost identical orders that were passed by the respondent- University are challenged in the other writ petitions also, except the fact that the respective colleges have to established at different places and in different names by different petitioners.

(3.) 1 have considered the rival submissions made by the learned counsel appearing for either side. The short question that arises for consideration in all these cases is whether the impugned orders can stand scrutiny of this Court in the light of the provisions of the Central Act 52 of 1987 and the judgements of this Court in the two decisions cited supra. It is worthwhile to refer to the observation at this stage made by Mohan. J. in the decision reported in Unnikrishnan v. State of A. P. , (1993)1 S. C. C. 654, wherein it has been held as follows: ' 'Therefore, as on today it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment as such progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the so called time. Colleges run in thatched huts with hardly any equipment, with no improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to education. . . . . . There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the government in many reas-pects. They require encouragement.' ' So, the Supreme Court has recognised that importance of starting of private institutions and has also approved in principle that private institutions have to co-exist along with the other Government institutions. The other question to be considered is with regard to the land requirement as asked for by the University and whether the requirement of the University in this regard can be held to be valid in the light of the guidelines fixed by the aicte. It is seen from the guidelines fixed by the AICTE that the total extent of land required for an Engineering College with an annual intake of 300 students is as follows: As against these guidelines, according to Mr. Jothimani, learned counsel for the University, the resolution passed by the University in 1986 has got to be enforced, which I do not think is correct in law. When especialy after the Central Act 52 of 1987 and in view of Sec. 10 of the Act as defined by the Council. If sub clauses (I) & (K) of Sec. 10 are read together, I have no hesitation to hold that the requirement of land will fall under the specific provisions for starting the Engineering College under Sec. 10 of the Act. While that being so. I do not think that the respondent university can still doing on to the resolution which was passed prior to the passing of the Central Act 52 of 1987 and contend that the petitioners require 150 hectares of land for starting the Engineering College. In my view, the said requirement is wholly necessary. Yet another reason given by the University for not granting the affiliation to the petitioner on the ground of financial stability is an interesting feature to be noted. It is stated in the counter affidavit that as far as the land requirements are meant for ascertaining the financial stability of the institution apart from the requirements of the institution to create endowment, which are done by the Universities. According to the University that though the syndicate in the local enquitry has found that the petitioner institutions satisfied the requirements in respect of class rooms, drawing halls, laboratory and workshop, library, staff and hostel etc. , the petitioner institutions were not having the land requirement, which in my view has been come down by the Division Bench Judgement of this Court in the decision cited supra A. I. R. 1991 Mad. 246. Further the Division Bench of this court in the said decision has also observed as follows: "the fact that the Union has not legislated, or refrained from legislating to the full extent of its power does not invest the state with the power to legislate in respect of a matter assigned by the constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. " If there be Union legislation in respect of coordination and determination of standards, that would have paramoutney over the State law by virtue of the first part of Art. 254 (l) even if that power be not exercised by the Union Parliment the relevant legislative entries being in the exclusive lists, a state law trenching upon the Union field would still be invalid". It has been held in Noorul Islam Education Trust v. Government of Tamil Nadu, a. I. R. 1991 Mad. 141 that conditions which may be laid down by the University have to be such other than imposed by the Council. It is worthwhile to extract paragraph 16 of the said decision: "the Division Bench in the Judgement referred to already, has pointed out that the University can impose only such conditions as will have no relevance to coordination and determination of standards. As laid down by the Bench, it is open to the University to grant or refuse to grant affiliation on grounds which will not impinge upon co-ordination and determination of standards. Hence, it is necessary for the all India Council to lay down the norms which fall within the scope of co-ordination and determination of standards. That will enable the Universities to prescribe such other conditions as may be required for grant of affiliation. It cannot be disputed that the grant of approval or permission by the All India council is not sufficient to enable any person to start a technical institution. If such person wants the students of the Institution to be examined by any university, the institution has to get affiliation from the university. Such affiliation can be granted only if the conditions laid down by the University are fulfilled. No doubt the conditions which may be laid down by the University have to be such other than those imposed by the All India council. " [italics is mine]. Therefore the condition imposed by the University with regard to the land requirement is unreasonable when the AICTE has already fixed the norms stating lesser extent of land than that fixed by the University in its resolution. I am unable to appreciate the stand taken by the learned counsel for the University in this regard. That apart, the impugned orders do not contain any specific reasons. On the other hand, they simply say that the petitioner institutions do not satisfy the condition as prescribed by the University end is very cryptic. I am of the view, the University ought to have passed reasoned orders. I do not think that the learned counsel for the university can take shelter under the observations made by the Division Bench of this Court with regard to the grant of provisional affiliation under Statute 44-A. It cannot be said that it is not open to the University to grant provisional affiliation to the petitioner Institutions under Statute 44-A at all in view of the the Division Bench judgment of this Court cited supra. Each case has to be decided on the facts and circumstances of that case. Just because the petitioner Institutions do not satisfy one of the conditions viz. land requirement, it is not open to the Univer-isity to reject even provisional affiliation to the Institutions on that score by ignoring Statute 44-A. Even assuming that the petitioner institutions do not satisfy the land requirement condition, the university got every power to grant provisional affiliation to the institutions in question under Statute 44-A which specifically provides for such contingencies.