Holding

Section 10(k) of the AICTE Act exclusively governs approval for establishing technical institutions, so any State law requiring approval is void, and AICTE approval alone suffices for university affiliation.

Summary

The Jaya Gokul Educational Trust applied to the All India Council for Technical Education (AICTE) and Mahatma Gandhi University for permission to establish a self‑financing engineering college. AICTE granted conditional approval after inspections and consultations, and the university listed the college for affiliation. The Kerala State Government, citing a policy against new engineering colleges, refused to grant permission, leading the Trust to file a writ petition. The High Court Single Judge quashed the State's refusal and directed the university to consider affiliation; the Division Bench reversed this order. On appeal, the Supreme Court held that Section 10(k) of the AICTE Act occupies the field of granting approvals for technical institutions, making any State requirement for "approval" repugnant and void; the university may grant affiliation based on AICTE approval alone, and the State’s policy decision was illegal. Consequently, the Court set aside the Division Bench judgment, upheld the Single Judge’s order, and affirmed that AICTE approval suffices.

Issues considered

Whether Section 10(k) of the AICTE Act, 1987 occupies the field of granting approval for technical institutions, rendering any State requirement for approval repugnant.
Whether the Kerala University First Statute clause 9(7) requiring the State Government's "views" amounts to a requirement of approval.
Whether the State Government's policy decision to refuse permission is a valid ground for denial of affiliation.
Whether the university can grant affiliation based solely on AICTE approval without State Government approval.

Legislation cited

All India Council for Technical Education Act, 1987s. 10(k)
Constitution of Indias. Article 246

Subjects

AICTEtechnical educationapprovalaffiliationrepugnancycentral legislationstate legislationself‑financing engineering collegepolicySection 10(k)Kerala University statute

Judgment

A JAYA GOKUL EDUCATIONAL TRUST
V.
--
,,_.....
THE COMMISSIONER AND SECRETARY TO GOVERNMENT HIGHER
EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, KERALA
STATE AND ANR.

B APRIL 11, 2000

[M. JAGANNADHA RAO AND M.B. SHAH, JJ.]

Education:
c All India Council for Technical Education Act, 1987 (AICTE Act)-
Section 1O(k)-Grant of approval for estab~1)lent of technical institutions
under the Act-Grant of affiliation by University-Role of State Goveni-
ment-Held, State Government is required to give its 'views' on establishment
and affiliation and not 'approval'-Kerala University First Statute: Clause
D 9(7)-AICTE Regulations: 8(4).

Constitution of India-Article 246-AICTE Act, 1987 and Kera/a Uni-
versify First Statute-Held, provisions of State Act cannot be inconsistent with
Central Act-Seventh Schedule-list I : Entry 66 and list III : Entry 25.

E Appellant-trust sought permission from University and All India
Council for Technical Education (AICTE) to establish a self-financing
Engineering College. A team of professors of the University inspected the
facilities provided by the Trust and made a recommendation for granting
permission. The AICTE granted conditional approval subject to fulfilment
of certain conditions by the Trust. The Trust under the impression that
F
State Government's approval is also required, sought permission from it in
this connection. Meanwhile, the University forwarded to the State Govern-
ment a list of colleges and courses for affiliation during academic year
1995-96 which included the college of the Trust. The State Government
refused permission to the Trust to establish the college. The Trust filed a
G Writ Petition before High Court challenging the decision of the State
Government. Single Judge allowed the writ petition and directed the Uni-
versity to consider Trust's application for permanent affiliation ignoring
the State Government's decision and pass appropriate orders. The State
i f r~
Government was also directed to reconsider its decision. The Division
Bench allowed the writ appeal of the State Government and dismissed the
H
1234
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. 1235
Writ Petition of the Trust. A
In appeal to the Court, the Trust contended that after coming into
force of the AICTE Act, 1987, a Central Act, the Kerala University First
Statute conferring a power on the State Go".ernment or University for
granting approval is inconsistent with the Central Act and is void; that the
State Government and the University do not have any independent role to B
play in respect of institutions and technical education; that AICTE granted

• approval after consulting the State Government and the University as per
its regulations; that the University is required to obtain views and not
approval from the State Government and that the Trust need not take
permission from the State Government to establish a college. c
The State Government contended that it has taken a policy decision
to stop approval for establishment of new Engineering Colleges as there
are more Engineering Colleges in the State, both aided and un-aided, and
to avoid commercialisation of education.
D
Allowing the appeals, the Court

HELD : 1. Section lO(K) of the AICTE Act, 1987 occupied the field
relating the 'grant of approvals' for establishing technical institutions and
the provisions of the Act alone were to he complied'with. The provisions of
the University Act or its statutes required the University to obtain the 'views' E
of the State Government. That could not be characterised as requiring the
'approval' of the State Government. If the University Statute could be so
interpreted, such a provision requiring approval of the State Government
would be repugnant to the provisions of section lO(K) of the AICTE Act,
1987 and would be void. There are enough provisions in the AICTE Act for F
r consultation by the Council of the AICTE with various agencies, including
the State Government and the University concerned. The State Level Com-
mittee and the Central Regional Committees contained various experts and
State representatives. In case of difference of opinion as between the vari-
ous consultees, the AICTE would have to go by the views of the Central
G
Task Force. These were sufficient safeguards for ascertaining the views of
the State Governments and the Universities. The University could not im-
pose any conditions inconsistent with the AICTE Act or its Regulations or
the conditions imposed by AICTE. Therefore, the procedure for obtaining
the affiliation and any conditions, which could be imposed by the Univer-
sity, could not be inconsistent with the provisions of the AICTE Act. The H
1236 SUPREME COURT REPORTS [2000) 2 S.C.R.
A University could not in any event have sought for 'approval' of the State
Government. There was no statutory requirement for obtaining the approval
of the State Government and even if there was one, it would have been
repugnant to the AICTE Act. The University could not in any event have
sought for 'approval' of the State Government. There was no statutory
requirement for obtaining the approval of the State Government and even
B
if there was one, it would have been repugnant to the AICTE Act. The
University statute merely required that the 'views' of the State Government
be obtained before granting affiliation and this did not amount to obtaining
'approval'. If the University statute required 'approval', it would have been
repugnant to the AICTE Act. [1248-F-H; 1249-A-C]
c
2. Regulation 8(4) of AICTE only required calling for the "com-
ments/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
D recommendation under Regulation 8(4). The letter of approval of the
AICTE showed that the Central Task Force had given its approval. The
approval was based on the inspection by the Expert Committee of the
AICTE also. Hence the State Government could not have relied upon any
contrary opinion of the Director of Technical Education. If the State Gov-
ernment had any valid objection, its only remedy was to place its objec-
E tions before the AICTE council under the AICTE Act or before the Com-
mittees, e.g. State Level Committee etc. [1251-C-D]

3. The so-called policy of the State was not a ground for refusing
approval. The State could not have any policy outside the AICTE Act and
F indeed if it had a policy, it should have placed the same before the AICTE
and that too before the latter granted permission. Once the procedure laid
down in the Al CTE Act and regulations had been followed and the Central
Task Force had also given its favourable recommendations, there was no
scope for any further objection or approval by the State. If thereafter, any
fresh facts came to light after an approval was granted by the AICTE or if
G
the State felt that some conditions attached to the permission, required by
the AICTE, were not complied with, then the State Government could
always write to the AICTE, to enable the latter to take appropriate action.
[1251-E-H]

H 4.1. ObtainiJg the 'views' of the State Government as per the statute

\ ,. I
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. 1237
9(7) did not amount to obtaining its 'approval'. Procedure and conditions A
for affiliation could not be inconsistent with the provisions of the Central
Act and the University could not seek approval of State Government. The
University was also one of the agencies consulted by the Council of the
AICTE under Regulation 8. Once that was over and approval was granted
by the AICTE, if there was any default on the part of the College in
B
compliance with the conditions of approval, the only remedy for the Uni-
versity was to bring these facts to the notice of AICTE so that the latter
could take appropriate action. The University ought to have considered
the grant of final or further affiliation without waiting for any approval
from the State Government and should have acted on the basis of the
permission granted by AICTE and other relevant factors in the University c
-I Act or statutes, which are not inconsistent with the AICTE Act or its
Regulations. (1252-D; F]

4.2. The approval of the AICTE was sufficient. It was not necessary
for the Single Judge to direct the State Government to reconsider i~
D
decision. The Single Judge's order quashing the letter of the State Govern-
ment is upheld. The direction to the University to consider the application
of the appellant for final affiliation or the application or continuance of
affiliation is confirmed and this is to be done on the basis of the approval
granted by the AICTE or any other relevant factors in the University Act
or its statutes, which are not inconsistent with the AICTE Act or its E
Regulations. (1252-H; 1253-A]

State of Tamil Nadu & Am: v. Adhiyaman Educational & Research
Institute & Ors., (1995] 4 SCC 104; 11iirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State
of Tamil Nadu & Ors., (1996] 3 SCC 15, relied on.
F

Unnikrislman v. State ofAndhra Pradesh, [1993] 1 SCC 645, referred
to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2589 of 2000.
G
From the Judgment and Order dated 3.3.98 of the Kerala High Court
in W.A. No. 1024 of 1997.

.WITH

Special Leave Petition (C) No. 10485 of 1998 . H
1238 SUPREME COURT REPORTS [2000] 2 S.C.R.
A From the Judgment and Order dated 3.3.98 of the Kerala High Court
in W.A. No. 1024 of 1997.

Mukul Rohtagi, Additional Solicitor General, T.L. Viswanatha Iyer, Ms.
Lily !sable Thomas, G. Prakash, A. Ranganadhan and AV. Rangam for the
appearing parties.
B
The following Judgment/Order of the Court was delivered :

M. JAGANNADHA RAO, J. Leave granted.

The appellant is a trust which wanted to establish a self-financing
C Engineering College and submitted an application during 1994-95 to the
University of Kerala as well as to All India Council for Technical Education
(hereinafter called the 'AICTE') There was an inspection by a team of
Professors of the University and it recommended favourably when it stated
that the facilities provided by tltt! appellant would be sufficient for establish-
D ing an Engineering College. The AJCTE sent a communication on 30.4.1995
stating that on the basis of the observations made by the Expert Committee
and the recommendations made by the Central Regional Committee, State
Level Committee and Central Task Force as per the provisions of ·the AICTE
regulation dated 30.1.1994, the AICTE was granting conditional approval for
establishing an Engineering and Technical College. The abovesaid approval·
E was subject to the fulfilment of specific conditions mentioned in Annexure
I and the general conditions mentioned in Annexure II to the said letter. In
the event of contravention of the conditions, guidelines, norms and regula-
tions of the AICTE, the AICTE could withdraw the approval at any time.
Under the impression that the State Govt. was to grant permission, the
F appellant requested the State Government by letter dated 24.6.1995 for
pennission to start the college. Meanwhile, the Mahatama Gandhi University
by their letter dated 31.5.1995 forwarded to the Government a list of Colleges
and Courses for affiliation during the academic year 1995-96. The appellant's
college was shown as one of the colleges among the affiliated colleges for
the said period. The appellant sent a reminder to the Government on 26.8.1995
G for permission for starting the college for the academic year 1995-96 and
ultimately the Government refused permission by informing the appellant by
t -~.

a letter dated 16.8.1996 as follows :

"In inviting your attention to the reference cited, I am to inform you
H that Government regret their inability to comply with your request."
JAYA GOKUL EDU. TRUST"· COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.) 1239

--
I. ,,.
Thereafter, the appellant filed writ petition O.P. No. 4612 of 1996 for
quashing the said order and for a direction to sanction and establish an
A

Engineering College.

The learned Single Judge of the High Court by his judgment dated
14.1.1997 allowed the writ petition, quashed the above-said order of the
government dated 16.8.1996 and directed the Mahatama Gandhi University B
to consider the appellant's application for permanent affiliation without
reference to the above letter of the Government and pass appropriate order
within 8 weeks from the date of the receipt of a copy of the judgment. The
direction to pass a fresh order of affiliation was issued in view of the fact that
the University contended before the learned Single Judge that unless the c
Government granted approval, permanent affiliation could not be granted.
The Government was also directed to reconsider its decision.

Against the said judgment of the learned Single Judge the Cornmis-
sioner and Secretary of the Government (Higher Education Department) filed
Writ Appeal No. 1024 of 1997. The Division Bench of the High Court D
allowed the appeal and set aside the order of the Government and dismissed
the writ petition. The Division Bench, however, observed that the appellant

-
was at liberty to make a fresh application to the Government of Kerala for
according sanction for setting up the Engineering College or to request the
Government to consider the earlier application, for a future academic year. It
E
is against the abovesaid judgment of the Division Bench that this appeal has
been preferred.

Lea.med senior counsel for the appellant Sri T.L. Vishwanatha Iyer
contended that the Division Bench erred in reversing the well considered
judgment of the learned Single Judge and according to him after the coming F
into force of the AICTE Act, 1987, the statutes conferring power on the State
or University to the extent they were inconsistent with the Central Act were
void. In so far as institutions imparting technical education were concerned,

- the University or the State Government had no indepe11dent role to play
except to the extent provided in the above said enactment. In the present case,
the AICTE had made inspections and was satisfied that the necessary
G
infrastructure was available and that the appellant would be able to conform
~ to the required standards of the education. The AICTE had consulted the State
--.. of Kerala as well as the Mahatama Gandhi University. The University had
~·

granted conditional approval, as stated earlier. Therefore the AICTE consti-
tuted a Task Force and obtained its opinion and thereafter granted its approval H
1240 STJPREME COURT REPORTS (2000] 2 S.C.R.
A on 13.11.1995 subject to various conditions. According to the learned senior
counsel it was indeed not necessary for the appellant to have applied to the
State Government for any further sanction to establish the college. It might
be that under the relevant statutes of the University, the University was
required to obtain the "views" of the State Government but that did not
amount to requiring any approval of the State Government and indeed if any
B
such statute required the approval of the state Government, it would be void
in view of what was stated by this Court in State of Tamil Nadu & Another
v. Adhiyaman Educational & Research Institute & Others,[1995] 4 SCC 104.

Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also
c contended that though the State Government stated in its counter affidavit
filed in the High Court that the "policy" of the Government was not to grant
approval to self-financing engineering colleges to be established, such a
policy could not come in the way of the appellant in view of what this Court
has stated in similar circumstances in Thirumuruga Kirupan & Variyar
D Thavathiru Sundara Swami gal Medical Education & Charitable Trust v. State
of Tamil Nadu & Others, [1996] 3 SCC 15.

On the other hand learned Additional Solicitor General Sri Mukul

E
Rohtagi contended on behalf of the State of Kerala that the "Policy" of the
State of Kerala at the relevant time was not to grant approval for establish-
ment of more engineering colleges in the State. The Government had clarified
in the counter affidavit filed in the High Court that the Government "was not
in a position" to take a decision to start new engineering colleges, without
-
properly assessing the necessity of more engineering graduates from the State
and without exploring the possibility of employment opportunities in the
F country as a whole. Also there were four Engineering Colleges at Kannur,
Trichur, Kottayam and Thiruvananthapuram Districts and three Private (Aided)
Engineering Colleges at Palakkad, Emakulam (Kothamangalam) and Kollam
Districts. The Model Engineering College, Emakulam was a self-financing
Engineering College and others were the colleges at Changannur and
Pathansamthitta and there was a self-financing engineering college at
G Kasargode. There were also two unaided Engineering Colleges at Mallappuram
and Thiruvananthapuram. Even though the appellant trust was not seeking aid
from the Government and even assuming that it was financially self-suffi-
cient, it. would not be in the interests of the students & employment, to permit
new engineering colleges to be established. Thus the Government policy was
H not to grant fresh approvals. If more approvals were granted, it might lead
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO. J.) 1241
to commercialisation of education. A

The following points arise for consideration :

(1) Whether in view of the judgment of this Court in State of Tamil
Nadu & Another v. Adhiyaman Educational & Research Institute & Others,
B
[1995] 4 SCC 104, the provisions of the AICTE Act, 1987 occupied the field
and it was not necessary to obtain the further approval of the Government or
other authority? Whether any statute in the State of Kerala if it required such
approval, would be void?

(2) Whether the orders of r~jection passed by the State Government C
were valid on merits and whether the University should have granted further
orders to continue the affiliation solely on the basis of the AICTE permission?

Point 1 :
D
This point is more or less covered by the judgment of this Court in State
of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute &
Others,[1995] 4 SCC 104. But, in the context of section lO(K) regarding
'approval' for starting a technical institution, certain aspects of the judgment
need to be highlighted.
E
Before we refer to the abovesaid judgment, it will be necessary to refer
to certain provisions of the AICTE Act and the relevant regulations.

The abovesaid Act was an act to provide for the establishment of All
India Council for Technical Education with a view to the proper planning and F
coordinated development of the technical education system throughout the
country, the promotion of qualitative improvement of such education in
relation to planned quantitative growth and the regulation and proper main-
tenance of norms and standards in the technical education system and for
matters connected therewith. Under section 10 of the Act, it is stated that it
is the duty of the Council constituted under the Act to take all steps as the G
said Council might think fit for ensuring coordinated and integrated develop-
ment of technical education and maintenance of standards. For the pwposes
of performing its functions under the Act, the Council may (a) undertake
survey in various fields of technical education, collect data on all related
matters and make forecast of the needed growth and development in technical H
1242 SUPREME COURT REPORTS [2000] 2 S. C.R.
A education; (b) coordinate the development of technical education in the
country at all levels; (c) allocate and disburse out of the Fund of the Council
such grants on such terms and conditions as it may think fit to - (i) technical
institutions, and (ii) Universities imparting technical education in coordination
with the Commission; (d) promote innovations, research and development in
established and new technologies, generation adoption and adaptation of new
B technologies to meet developmental requirements and for overall improve-
ment of educational processes; (e) formulate schemes for promoting technical
education for women, handicapped and weaker sections of the society; (f)
promote an effective link between technical education system and other
relevant systems including research and development organisations, industry
c and the community; (g) evolve suitable performance appraisal systems for
technical institutions and Universities imparting technical education, incorpo-
rating norms and mechanisms for enforcing accountability; (h) formulate
schemes for the initial and in-service training of teachers and identify
institutions or centres and set up new centres for offering staff development .
programmes including continuing education of teachers; (i) lay down norms
D
and standards for courses, curricula, physical and instructional facilities, staff
pattern, staff qualifications, qliality instructions, assessment and examinations
(j) fix norms and guidelines for charging tuition and other fees.

The clause in Section 10(1) which is important in the present case is
E sub-clause (k) of section 10(1) and it provides that the Council might

"grant approval for starting new technical institutions and for intro-
duction of new courses or programmes in consultation with the
agencies concerned."
F
Sub-clause (1) permits the Council to advice the Central Government in
certain respects, sub-clause (m) lay down norms for granting autonomy, sub-
clause (n) to take necessary steps to prevent commercialisation of technical
education, clause (o) to provide guidelines for admission of students to
technical institutions and Universities imparting technical. education, clause
G (p) to inspect or cause inspection to any technical institution, clause (q) to
withhold or discontinue grant, clause (r) to strengthen the existing organisa-
tions etc., clause (s) to declare technical institutions as fit to receive grants,
clause (t) to advice for declaring institutions to be deemed as universities,
clause (u) to set up a National Board of Accreditation. Section 11 of the Act
H deals with inspection.
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.] 1243
Regulations have been framed on 31st October, 1994 by the AICTE in A
exercise of powers conferred on it by section 23(1) of the AICTE Act.
Regulation 2 states that these regulations will be applicable to proposals
relating to
... "(a) grant of approval of the Council for establishment of new
technical institutions including Universities or University depart- B
ments and deemed Universities and for technical institutions function-
ing on the date of commencement of these regulations at Degree and
Diploma levels;

(b) grant of approval of the Council for introduction of any course
or programme in the technical institutions and technical departments
c
or Universities.or deemed Universities;

(c) grant of approval of the Council for existing intake capacity of
seats and for increase in the annual intake capacity of seats in courses
and programmes." D
Regulation 4 deals with the requirement of grant of approval and for the
commencement of these regulations

"(a)·····························
E
(b) no course or programme shall be introduced in any technical
institutions, university or deemed university or university departments
or college; or

(c) no technical institutions, Universities or deemed Universities or
University Departments or colleges shall continue to admit students p

-- for degree or diploma courses or programmes;

(d) no approved intake capacity of seats shall he increased or
varied:

except with the approval of the Council. G
Reg. 4(2) ........................."
, .
Regulation 5 deals with the Forms of the Applications and Regulation
6 deals with the conditions for grant of approval, Sub-clauses I of Regulation
6 deals with the financial position. Sub-clause 2 with the courses or pro- H
1244 SUPREME COURT REPORTS [2000] 2 S.C.R.
A grammes and sub-clause 3 deals with the power of admissions and sub-clause
4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6- with - ..,.
the Governing Body of the private institutions and sub-clause 7 with other
matters. Regulation 8 deals with scrutiny of applications. There is a prelimi-
nary scrutiny of the applications by the Bureau RC of the Council. Sub-clause
4 of Regulation 8 reads as follows :
B
"Reg. 8(4) Tue Bureau RC shall invite comments/recommendations
on the applications referred to in sub-regulation (3) from the follow-
ing, namely :

c (i) the State Government concerned ;

(ii) the affiliating University/State Board of Technical Education;

(iii) Bureaus MPCD;

D (iv) Bureau BOS;

(v) Bureau RA;

(vi) the Regional Office."

Sub-clause 5 of Regulation 8 requires the Regional Office to arrange
E
visits by an Expert Committee constituted by the Council which is to forward
its recommendations to the Council. Sub-clause 6 of Regulation 8 states that
the State Level Committee constituted under Regulation 9(4) is to consider
the recommendations of the State Government and others mentioned in
regulation 8(4) and that it is to make its recommendations to the Central Task
F Force constituted under regulation 9(5) and consider the reco~endations of
the State Level Committee and send its recommendations to the Member
Secretary of the Council.
-
Sub-clauses 8 & 9 of Regulation 8 are important and read as
follows:
G
"Reg. 8(8) If there is a disagreement in the recommendations made
by the State Government, University or the Regional Committee, the '\

Central Task Force shall invite representatives of the respective
agencies for further consultations before making final recommenda-
H tion;
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.] 1245
(9) On the recommendation of the Central Task Force, the Council A
shall decide the question of grant of approval as sought for in the
application :

Provided that the Council may, for reasons to be communicated
to the applicant. allow the approval with such restrictions or
modifications as it may deem necessary." B

Sub-clause 10 of Regulation 8 states that the decision of the ·council shall be
communicated to the State Government concerned or the UGC, as the case
may be, the concerned University or the State Board, the Regional Office and
the applicant before 30th April in case the application was made before the C
preceding 31st December.

The Tamil Nadu case :

As stated earlier, the above provisions of the AICTE Act. came up for
consideration in State of Tamil Nadu v. Adhiyaman Educational & Research D
Institute, (1995] 4 SCC 104.

In the above matter, the State of Tamil Nadu granted pennission on
17.4.84 to all private managements to start private Engineering colleges
without financial commitment to government but subject to conditions. At
that time in 1984, the AICTE Act was not on the statute book. The E
Government of Tamil Nadu granted permission to the Trust for the academic
year 1987-88 to start an Engineering college. The University also granted
permission on 21.11.87 for the academic year 1987-88. Later on, these
pennissions were withdrawn by the State after issuing show cause on 16.7.89.
So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had
F
come into force. The learned Single Judge and the Division Bench held in
favour of the Trust and quashed and orders of the Government and the
University. The said judgments were affirmed by this Court. It was held that
the AICTE Act was referable to Entry 66, List I of the Constitution of India,
relating to "co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions". After G
the Constitutional Amendment (42 Amendment Act, 1976) Entry 25 of List
III in the Concurrent List read : "Education, included technical education,
.-...,,.. medical institution and Universities, subject to the provisions of Entries 63,
64, 65 and 66 of List I; vocational and technical training of labour". Thus,
tbe State law under Entry 23 of List III would be repugnant to any law made H
1246 SUPREME COURT REPORTS [2000) 2 S.C.R.
A by the Parliament under Entry 66 of List I, to the extent of inconsistency. The
Tamil Nadu Act was of 1976 and the University Act was of 1923 and were
laws referable to the List III. Whether they were pre-constitutional or a post
constitutional laws, they would be repugnant to the AICTE Act passed by

B
Parliament under Entry 66 of List I. In the above case this Court referred to
the various provisions of the AICTE Act and on the question of repugnancy
-
~

held (seep. 120 SCC) as follows :

'.'Hence on the subjects covered by the statute, the State could not
_make a law under Entry 25 of List III after the Forty-Second
Amendment. If there was any such .:!xisting law immediately before
c the commencement of the Constitution within the meaning of
Article 372 of the Constitution, as the Madras University Act 1923
on the enactment of the present Central Act, the provisions of the said
law if repugnant to the provisions of the Central Act would stand
impliedly repealed to the extent of repugnancy. Such repugnancy
would have to be adjudged on the basis of the tests which are applied
D for adjudging repugnancy under Article 254 of the Constitution".

We shall now refer to the relevant paras of the above judgment dealing
with the question of 'approval' for establishing technical institutions under
section lO(K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under
E the 1976 Act had no doubt excluded technical institutions from the purview
of the Rules but this Court pointed out that the Rules were capable of being
amended so as to extend to such technical institutions and that if they were
so extended, the State Act of 1976 and the Rules would require "approvaI''
by the State Government and that would be void. It was stated (see p. 124
SCC) that inasmuch as the State Act,
F
"will overlap and will be in conflict with the provisions of the
Central Act in various areas ......... , granting approval for starting
new technical institution, ........ , inspection of technical institution
............ which are matters covered by the Central Act."
G This Court then referred to the Madras University Act, 1923. It was held (see
p. 126 SCC) that section 10 of the Central Act dealt with various matters
(including granting approval for starting new technical institutions), and that
so far as these matters were concerned.

H "it is not the University Act and the University but it is the
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.] 1247
Central Act and the Council created under it which will have the A
., jurisdiction. To that extent, after the coming into force of the Central

-
Act, the provisions of the University Act will be deemed to have
become unenforceable" .
.·
Thus, in the two passages set out above, this Court clearly held that because
of section lO(k) of the Central Act which vested the powers of granting B
approval in the Council, the T.N. Act of 1976 and the University Act, 1923
could not deal with any questions of 'approval' for establishment of technical
institutions. All that was necessary was that under the Regulations, the AlCTE
Council had to consult them.

Statutory powers of the State of Kerala and the M.G. University :
c
The question is as to how far the judgment in the Tamil Nadu case is
to be applied in the State of Kerala.

Learned Additional Solicitor General stated before us that there was no
statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 D
nor any other law which specifically required the 'approval' of the State
Government. It was however contended that the Tamil Nadu case was
concerned only with the standards of education and as to who could fix them.
We are not inclined to agree. We have already pointed out under Point 1 that
in the Tamil Nadu case, section lO(k) of the AlCTE Act was referred to and 'E
the power of 'approval' for establishing a technical institution was consid-
ered. In our opinion, even if there was a State law in the State of Kerala which
required the approval of the State Government for establishing technical
institutions, such a law would have been repugnant to the AICTE Act and
void to that extent, as held in the Tamil Nadu case.
F
-c The only provision relied on before us by the State Government which
according tO its learned senior counsel, amounted to a statutory requirement
of 'approval' of the State Government, was the one contained in clause 9(7)
of the Kerala University First Statute. It reads as follows :
G
"(9) Grant of affiliation :

(1) .....................

- ... (3) .....................

(7) After considering the rei>ort of the Commission and the report H
1248 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of the local inquiry, if any, and after making such further inquiry
as it may deem necessary, the Syndicate shall decide, after ascer-
taining the view of the Government also, whether the affiliation
be granted or refused, either in whole or part. In case affiliation
is granted, the fact shall be reported to the Senate at its next meet-
ing :".
....
B
It will be noticed that clause 9(7) of the statute required that before the
University took a decision on "affiliation", it had to ascertain the "views" of
the State Government.

The reference to the Commission in the above clause 9(7) is to the
c Commission of Inspection appointed by the University. Sub-clause (1) of
· clause (9) of the statute required "verification of the facilities that may exist
for starting the new colleges/course". The Commission was to inspect the site,
verify the title deeds as regards the proprietary right of the management over
the land (and buildings, if any) offered, building accommodation provided, if
D any, assets of the management, constitution of the registered body and all
other relevant matters, Sub-clause (2) of clause (9) stated that the affiliation
"shall depend upon the fulfilment by the management of all the conditions for
the satisfactory establishment and maintenance of the proposed institution/
courses of studies and on the reports of inspection by the Commission or
E "Commissions which the University may appoint for the purpose".
As held in the Tamil Nadu case, the Central Act of 1987 and in
particular, section . lO(k) occupied the field relating the 'grant of approvals'
for establishing technical institutions and the provisions of the Central Act
alone were to be complied with. So tar as the provisions of the Mahatma
F Gandhi University Act or its statutes were concerned and in particular statute
9(7), they merely required the University to obtain the 'views' of the State
Government. That could not be characterised as requiring the "approvaf' of
the State Government. If, indeed, the University statute could be so inter-
preted, such a provision requiring approval of the State Government would
b~repugnant to the provisions of section lO(k) of the AICTE Act, 1987 and
G would again be void. As pointed out in the Tamil Nadu case there were
enough provisions in the Central Act for consultation by the Council of the
AICTE with various agencies, including the State Governments and the
Universities concerned. The State Level Committee and the Central Regional
Committees contained various experts and State representatives. In case of
H difference of opinion as between the various consultees, the AICTE would
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.] 1249
have to go by the views of the Central Task Force. These were sufficient A
safeguards for ascertaining the views of the State Governments and the
Universities. No doubt the question of affiliation was a different matter and
was not covered by the Central Act but in the Tamil Nadu case, it was held
that the University could not impose any conditions inconsistent with the
AICTE Act or its Regulation or the conditions imposed by the AICTE.
B
Therefore, the procedure for obtaining the affiliation and any conditions
which could be imposed by the University, could not be inconsistent with the
provisions of the Central Act. The University could not, therefore, in any
event have sought for 'approval' of the State Government.

Thus we hold, in the present case that there was no statutory require- C
ment for obtaining the approval of the State Government and even if there
was one, it would have been repugnant to the AICTE Act. The University
statute 9(7) merely required that the 'views'of the State Government be
obtained before granting affiliation and this did not amount to obtaining
'approval'. If the University statute required 'approval', it would have been
repugnant to the AICTE Act. Point 1 is decided accordingly. D
Point 2 :

Factual position and pleadings in this case :

On facts, the position was that the AlCTE had granted approval on
30.4.95 expressly stating that this was "on consideration of the observations E
made by the Expert Committee and the recommendations made by the Central
Regional Committee, State Level Committee, Central Task Force as per the
provisions of AlCTE Regulations dated 31.10.94". The AICTE had granted
condition approval and the conditions were specified in Annexure I to the
order and the general conditions were enlisted in Annexure II. The State F
Government was directed by the AICTE to announce admission in accordance
with Regulation notified on 20.5.94 and based on the judgment of the
Supreme Court in Unnikrishnan v. State of Andhra Pradesh, [1993] 1 SCC
645. The Mahatma Gandhi University had included this appellant in the list
of colleges and courses which were granted affiliation during 1995-96 and the
G
University had written to the State Government on 31.5.95 that as per statute
9(7), the "views" of the government were to be sent before granting affili-
ation. The letter said that for that reason the proposals of the University were
being submitted to the Government "for necessa1y action". The appellant had
sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the
appellant merely stated "that government regret their inability to comply with H
1250 SUPREME COURT REPORTS [2000] 2 S.C.R.
A your request". No reasons were assigned in the said letter. But the State in
its counter filed in the High Court tried to explain in para 3 that the Director
of Technical Education had opined that during the year 1995-96, it might not
be practicable to start the college for the Director could not ascertain the
details of the facilities available. It was stated :

B "he could not ascertain the infrastructural facilities provided by
the appellant as per the norms prescribed by the All India Council of
Technical Education. The All India Council for Technical Education
and the Mahatma Gandhi University have sought for the remarks of
the State Government.
c Para 4 of the Counter affidavit had further stated that the Government was
not

"in a position to take a decision to start new Engineering college
without properly assessing the necessity of more engineering gradu-
D ates in the State and exploring the possibility of employment oppor-
tunity in the country to the. extent possible".

The State Government in its counter then gave the names of the existing
colleges and their location. We have already referred to these details. It also
observed th~t there was widespread student prospects against starting new
E colleges and it was necessary to be cautious in the matter of starting new
engineering colleges. It was stated that Government could not initially take
a decision on the appellant's affiliation because of elections and that matter
being one of 'major policy' the Government had subsequently "taken a policy
decision not to sanction any affiliation to such colleges either in the private
sector or in the public sector for this year". These are stated to be the reasons
F
for the government's rejection by letter dated 16.8.96.

State Government's refusal to grant permission is. illegal and void on
merits :

As already stated, in view of the judgment of this Court in Tamil Nadu
G
case, it is obvious that there is no need to approach the State of Kerala for
its approval for starting the Engineering colleges. There is no power vested
in the State under any State Law to grant approval and even if it was so
vested, it would have been void in view of Tamil Nadu case. This ground of
repugnancy alone would be sufficient to quash the State Government's letter
H dated 16.8.1996 refusing to give their approval.
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHA RAO, J.] 1251
Even on merits, the reasons given by the State Government in its A
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
30.4.95 showed that the approval had been given by the State Level Com-
B
mittee of which they were obviously members. It is, therefore, not under-
standable how the Director had given a contrary opinion to the State
Government. Regulation 8(4) of AICTE only required calling for the "com-
ments/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 recommen- C
dation under Regulation 8(4). Here the letter of approval of the AICTE dated
30.4.95 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 its counter, could not have relied
upon any contrary opinion of the Director of Technical Education. If the State D
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.

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 E
Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education &
Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15, 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 p
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 G

-- 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 was granted by the AICTE or if
the State felt that some conditions attached to the permission and required by H
1252 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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.

Decision of University in not granting further or final affiliation wrong on
merits :
B
Admittedly, the University's inspection report was in favour of the
appellant. This is clear from the appellant's letter dated 31.5.95 to the State
Government. The only requirement as per the statute 9(7) was for the
University to obtain the "views" of the State Government. Obtaining the
c 'views' of the State Government, as already stated, did not amount to
obtaining its 'approval'. Procedure and conditions for affiliation could not be
inconsistent with the provisions of the Central Act, in particular section IO(k)
of the Regulation, and the University could not seek approval of Government.
The University was also one of the agencies consulted by the council of the
AICTE under Regulation 8. O~ce that was over, and approval was granted
D by the AICTE, if there was any default on the part of the College in
compliance with the conditions of approval, the only remedy for the Univer-
sity was to bring those facts to the notice of the AICTE so that the latter could
take appropriate action.

E Reliance for the respondent was placed upon the subsequent report of
the Syndicate dated 7.8.97. This report no doubt pointed out that the
appellant had not complied with certain conditions mentioned in the approval
dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come
to the notice of the University, it could only place the said facts before the
AICTE.
F
Thus, the University ought to have considered the grant of final or
further affiliation without waiting for any approval from the State Govern-
ment and should have acted on the basis of the permission granted by AICTE
and other relevant factors in the University Act or statutes, which are not
G inconsistent with the AICTE Act or its Regulations.

For the aforesaid reasons, we set aside the judgment of the Division
Bench of the High Court and uphold the reasoning of the learned Single Judge
in his judgment in OP - 4612/96 dated 14.1.1997. We hold that the approval
of the AICTE was sufficient, we do not also think that it was necessary for
H the learned Single Judge to direct the State Government to reconsider its
JAYA GOKUL EDU. TRUST v. COMMR. AND SECY. HR. EDU. AND ANR. [M. JAGANNADHARAO, J.] 1253

- decision. The learned Single Judge's order quashing the letter of the State
Government dated 16.8.96 is upheld. The direction to the Mahatama Gandhi
A

University to consider the application of the appellant for final affiliation or
continuance of affiliation is confirmed and this is to be done on the basis of
the approval granted by the AICTE dated 30.4.95, or any other relevant
factors in the University Act or its statutes, which are not inconsistent with
B
the AICTE Act or its Regulations.

The appeal is allowed and disposed of as stated above. There will be
no order as to costs.

M. JAGANNADHA RAO, J. The petitioner was not a party in the
High Court of Kerala and this Special Leave Petition was filed with leave of
c
this Court.

We find that the petitioner has already filed a Writ Petition in the Delhi
High Court namely CWP No. 952 of 1998 and the same is pending. It will
be for the petitioner to have the said matter disposed of by the High Court D
of Delhi. Therefore, this special leave petition is dismissed as premature.

B.S. Appeal allowed and Petition dismissed.

•