Holding

The Andhra Pradesh State Council of Higher Education Act, 1988 is a valid State law that aids the central University Grants Commission Act and does not infringe upon Parliament's exclusive competence under Entry 66 of List I.

Summary

The State of Andhra Pradesh enacted the Andhra Pradesh State Council of Higher Education Act, 1988 to address gaps identified in the earlier 1986 Commissionerate Act, which had been struck down as ultra vires in Osmania University Teachers Association. A university teacher challenged the 1988 Act, arguing that it encroached upon Parliament's exclusive competence under Entry 66 of List I and that it also covered intermediate education, which is outside that entry. The High Court agreed and struck down the Act. On appeal, the Supreme Court examined whether the 1988 Act is a valid piece of legislation under Entry 25 of List III, applying the doctrines of pith and substance and colourable legislation. The Court held that the Council's powers are limited to assisting the University Grants Commission and are subject to its guidelines, making the Act an aid to the central UGC Act rather than a usurpation of Parliament's field. Consequently, the Court set aside the High Court judgment and upheld the validity of the 1988 Act. The appeals were allowed and no order as to costs was made.

Issues considered

The State of Andhra Pradesh's legislative competence to enact the Andhra Pradesh State Council of Higher Education Act, 1988 under Entry 25 of List III.
Whether the 1988 Act encroaches upon Parliament's exclusive power under Entry 66 of List I of the Seventh Schedule.
Application of the doctrines of pith and substance and colourable legislation to determine the true nature of the State Act.
Whether the 1988 Act is repugnant to the University Grants Commission Act, 1956.

Legislation cited

Andhra Pradesh State Council of Higher Education Act, 1988s. 11, s. 16
Constitution of Indias. Article 246, s. Entry 25 of List III, s. Entry 66 of List I
University Grants Commission Act, 1956

Subjects

legislative competencepith and substancecolourable legislationhigher educationUniversity Grants CommissionArticle 246Entry 66 List IEntry 25 List IIIconstitutional validitystate vs centre legislation

Judgment

A STATE OF A.P.
v.
K. PURUSHOTHAM REDDY AND ORS

MARCH 10, 2003

B [V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Constitution of India, 1950-Article 246 and Entry 66 of List I and
Entry 25 of List Ill of VII Schedule-Central Government evolving National
C Education Po/icy-Recommendations made for constituting State Council of
Higher Education-UGC formulating guidelines-Enactment of 1986 Act-
Act struck down as ultra vires the Constitution as being not within the
competence of legislature having regard to 1956 Act-Review of guide/ines-
Subsequent enactment of 1988 Act-Constitutional validity qf-Held, provisions
of 1988 Act show that State Act is an aid of Parliamentary Act and does not
D encroach upon the legislation enacted by the Parliament, thus a valid piece
'Jf legislation-Pith and substance doctrine applicable-Andhra Pradesh
Commissionerate of Higher Education Act, 1986-University Grants
Commission Act, 1956-Andhra Pradesh State Council of Higher Education
Act, 1988

E Doctrines:

Doctrine ofpith and substance and doctrir.e of co/ourable legislation-
App/icability of

Constitution of India, 1950-Article 246-Legis/ative entries-
F Interpretation of-Discussed

Central Government evolved a National Education Policy for
creating a State Level Planning for coordination of higher education
through _Councils of Higher Education. University Grants Commission
constituted a Committee and formulated guidelines for setting up the
G Councils. Thereafter, Andhra Pradesh Commissionerate of Higher
Education Act, 1986 was passed but this Court in Osmania University
Teachers Association case struck down the Act as unconstitutional on the
ground of lack of legislative competence having regard to the
parliamentary Act-University Grants Commission Act, 1956. Commission
H then reviewed the guidelines and filled the gaps. Consequently, Andhra
832
STATE v. K. PURUSHOTHAM REDDY 833
Pradesh State Council of Higher Educa'tion Act, 1988 was enacted. A
Respondent-teacher filed a writ petition challenging the vires of the Act.
High Court held that as the State Government lacked the requisite
legislative competence, the Act was ultra vires the Constitution. Hence the
present appeals.

Allowing the appeals, the Court B
HELD I.I. A bare comparison of the provisions of the Andhra
Pradesh State Council of Higher Education Act, 1988 with the provisions
of the Andhra Pradesh Commissionerate of Higher Education Act, 1986
would clearly demonstrate that the powers and functions of the Council
stand curtailed in so far as they are not only to function in accordance c
with the guidelines issued by the University Grants Commission but its
~uty is to assist the Commission in respect of determination and
maintenance of standards and suggest remedial action of Higher Education
in the State. In exercise of the power conferred upon it under the 1988
Act, the Council can now only forward the programmes of Universities D
and colleges in the State to the University Grants Commission along with
its comments and recommendations which necessarily would be subject
to the latter's acceptance. Even an Annual Report prepared by the Council
although is required to be forwarded to the Government which in turn is
enjoined with a duty to place before the Legislative Assembly of the State,
but a further requirement has been provided that a copy thereof shall also E
be sent to the University Grants Commission. Evidently, the Commission
on receipt of a copy of the report may give its own suggestions for their
implementation by the Council. The submission that the Council also
derives its power to coordinate and determine the standards of institutions
of higher education or research and technical institutions including p
planning and coordination to prepare consolidated programmes in the
sphere of higher education in the State keeping in view the overall
priorities and perspectives of higher education is not correct. The principal
duties and functions of the Council is to assist the UGC in respect of
determination and maintenance of standards and suggest remedial action;
to evolve the developmental programmes of Universities and Colleges in G
the State to the UGC along with its comments and recommendations to
monitor the progress of implementation of such developmental
programmes; to promote cooperation and coordination of educational
institutions among themselves and to explore the scope for interaction with
industry and other related establishments which not only had been done H
834 SUPREME COURT REPORTS (2003) 2 S.C.R.

A in accordance with the guidelines issued by the UGC from time to time.
(843-G, H; 844-A-E)

1.2. Once it is held that the duties and functions of the Councils are
compartmentalised and they have to act in accordance with the guidelines
issued by the UGC from time to time, it is preposterous to suggest that
B the Council acts on its own and/or at the instance of the Government in
the field of cooperation and determination of standards in institutions of
higher education as an independent body. Keeping in view the fact that
the Commission itself on the request of the Central Government
constituted a committee and laid down the parameters within w1'ich the
C Council can function and subjected themselves to the restriction of working
within the guidelines issued by the UGC, it cannot be submitted that both
the Commissionerate Act as also the Council Act provide for same powers
and functions. The modifications made in the 1988 Act vis-a-vis the
Commissionerate Act cannot be said to be so slight as bas been opined by
the High Court so as to arrive at a conclusion that the 1988 Act still suffers
D from the same vices. Having regard to the provisions of the 1988 Act"and
particularly Section II thereof there is no doubt that the purpose of the
said Act,' and the poWers arl·d functions tl\ereof vis-a-vis the
Commissionerate Act are absolutely distinct and different. In no way the
1988 Act can be said to have an upper hand over the UGC Act.
(844-F-H; (845-A, BJ
E
1.3. The 1988 Act seeks to plug the loopholes pointed out by this
Court in Osmania University Teachers Association. It seeks to bring the State
Act in conformity with the constitutional parameters. It expressly states
that the s&me would be subject to the Central Act. It emphasizes that the
p provisions thereof are for the purpose of filling up of the gaps and to
control effectively a large number of universities within which, having
regard to their sheer number, the UGC itself would not be in a position
to have effectively control over them. If the UGC has an overall control
over the State Council, the Central field is not entrenched upon. In a
situation of this nature the doctrine of pith and substance must also be
G held to be applicable. The State of Tamil Nadu as also the State of West
Bengal in terms of the National Education Policy, 1986 as also the
recommendations of the Committee framed by the University Grants
Commission enacted similar Acts. The provisions of the impugned Act
wou.d clearly show that the State Act is in aid of the Parliamentary Act
H , and it does not in any manner whatsoever entrench upon the legislation
:J.. ..

STATE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.) 835

L enacted by the Parliament and the same is a v~lid piece of legislation. , A
Therefore, the High Court erred in striking down the entire Act without
bestowing its consideration to the fact that the State Act deals with not: '
only higher education but also intermediate education which in no manner
deals with the subject matter of Entry 66 of List I of VII Schedule of the
Constitution. [845-F-H; 846-A; 851-B, CJ
., B
O~mania University Teachers A~sociation v. State of Andhra Pradesh, \
(1987) 4 SCC 671; R Chitralekha v. State of Mysore, (1964[ 6 SCR 368; \
Naga People's Movement of Human Rights v. Union of India, (1998( 2 SCC
109; Dr. Preeti Srivastava and Anr. v. State of MP. and Ors:, (1999] 7 SCC
120; State ofHaryana and Anr. v. Chanan Mal etc., (1976] 3 SCR 688; In re C
Hindu Women's Rights to Property Act (28) AIR (1941). FC 72;
RMD.Chamabraugwalla v. Union of India, (1957[ SCR 930; Public Service.
Tribunal Bar Association v. State of U.P. and Anr., (2003[ AIR SCW 653;
ITC Ltd v. Agricultural Produce Market Committee and Ors., [2002] 9 SCC
232; Assistant Director of Inspection Investigation v; A.B. Shanthi etc., (2002]
6 SCC 259; Shri Krishna Gyanoday Sugar Ltd and Anr., v. State of Bihar,. D
(2003[ 2 SCALE 226 and Welfare Association A.RP. Maharashtra and Anr.
v. Ranjit P. Gohil and Ors., [2003] 2 SCALE 288;referred to•

•
State ofT.N. and Anr. v. Adhiyaman Educational & Research Institute
and Ors., (1995[ 4 SCC 104, distinguished.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3985 of
2001.

From the Judgment and Order dated 27.4.2001 of the Andhra Pradesh
High Court in W.P. No. 17222 of 1988.
F
WITH

C.A. No. 3986 9f 2001.
'
G.L. Sanghi, K.K. Venugopal, L. Nageshwara Rao, T.V. Ratnam, K.
Subba Rao, G. Ramakrishna Prasad, D. Ramakrishna Reddy, Ms. D. Bharathi G
Reddy, S. Muralidhar, Somiran Sharma, R.N. Poddar and J.K. Bhatia, for the
appearing parties.

The Judgment of the Court was delivered by

S.B. SINHA, J. Whether the State of Andhra Pradesh had the legislative H
836 SUPREME COURT REPORTS (2003] 2 S.C.R.

A competence to enact Andhra Pradesh State Council of Higher Education Act,
1988 (Act 16 of 1988} (hereinafter called as "the 1988 'Act") is the core
question involved in these appeals which arise ciut of a judgment and· order
' pa;sed by the Andhra Pradesh High Court in Writ Petition No. 17222 of
, 1988. . - ';_, ' -

B The fact leading to filing of the Writ Petition by the respondent herein
questioning the vires of the 1988 Act arose in the following circumstances:
. '\ .
The Central Government evolved a National Education Policy in the
y~ar 1986 pursuant. whereto and in furtherance whereof, recommendations
were made for creating a State Level Planning for coordination of the Higher
C Education through Councils of Higher Education. Such Councils were
proposed to be. set up as statutory bodies having regard to the fact that there
did not exist any effective m~chinery for planning and coordinationofhighn
.education at the State level vis-a-vis implementation of the p~ogrammes made
· by the University Grants Commission (UGC}. With a view to glve effect to
the said policy, UGC constituted a committee to go into the said matter and
D .inake recommendations regarding' setting up of the. said Councils of liigher
education and programme of action to be taken in ihat behalf. The pressing
need for constituting effective machinery for promotion and 'coordination of
higher education at the State level and coordination of State level programmes
with those of the UGC was felt and pursuant tr.ereto and in furtherance
E thereof, UGC formulated guidelines for setting up of such Councils as
recommended by the Committee. ,.

In the year 1986 the State of Andhra Pradesh passed an Act known as
the Andhra Pradesh Commissionerate of High.er Education Act,: 1986
(hereinafter called as 'the Commissionerate Act'}. The Commissionerate Act
F · was enacted purported. to be pursuant to or in furtherance of the
recommendations of the Vice-Chancellors' Committee on higher education
in the State of Andhra Pradesh. The constitutionality of the said Act inter a.lia
was questioned c,n the ground of lack of legislative competence having regard
to the parliamentary Act known as University Grants Commission Act enacted
in terms of Entry 66, List I of the VII Schedule of the Constitution oflndia.
G The said writ petition~ were filed by the respondent herein and four others
as also the Osmania University Teachers' Association. The said writ petitions
were dismissed by a Full Bench of Andhra Pradesh High Court by a judgment
dated 24.03 .1987. However, on an appeal there against this Court in Os mania
University Teachers' Association v. State ofAndhra Pradesh and Anr., [1987)
H 4 sec 671 · held that the State Legislature had no legislative competence
..,
STA TE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 837
therefor. A
As a necessary fallout of the said decision, guidelines were sought to
be reviewed wherefor request was made by the Government of India to the
Commission.

In the light of the judgment, the Department of Education, Government B
of India requested the Commission to review the guidelines. Accordingly, the
guidelines were reviewed with the help of the law panel of the Commission.
The relevant extracts of the revised guidelines as approved by the Commission
in January, 1988 are as under:

"2.0 Setting up of the Council c
In order to achieve the objectives set out above, the Central
Government may advise State Governments for enacting legislation
for setting up of State Councils of Higher Education in the States. In
an Indian state where the number of universities are too few, an
advisory body may be set up to fulfil the above objectives. D
8.0 Powers and Functions of the Council

The Council shall function for coordination and determination of
standards in institutions for higher education or research and scientific
and technical institution in accordance with the guidelines issued by E
the UGC from time to time.

8.1 Planning and Coordination

(i) To prepare consolidated programmes in the sphere of higher
education in the State in accordance with the guidelines that may F
be issued by the UGC from time to time, and to assist in their
implementation.

(ii) To forward the development programmes of universities and
colleges in the State to UGC along with its comments and
recommendations.
G
(iii) To assist UGC in respect of determination and maintenance of
standards and suggest remedial action wherever necessary, in
accordance with the guidelines.

(iv) To evolve perspective plans for development of higher education
in the State. H
838 SUPREME COURT REPORTS [2003) 2 S.C.R.

A (v) To monitor the progress of implementation of such development
programmes.

11.0 Annual Report

The Council shall prepare an Annual Report .givin~ an account of
B its activities during the previous year and copies thereof shall be
forwarded to the State Government and the Government shall cause
the same to be laid before the Legislative Assembly. A copy of the
Annual Report should be sent to University Grants Commission."

Pursuant to or in furtherance of the said recommendations revised
C guidelines as approved by the Commission were issued in January, 1988 and
relying on or acting on the basis thereof the Government of Andhra Pradesh
decided to fill up the gaps by constituting State Council of Higher Education
as recommended in the National Education Policy of the Government of
India as also in terms of the recommendations made by the Committee
constituted by the UGC. Consequently, the Government of Andhra Pradesh
D enacted Andhra Pradesh State Council of Higher Education Act, 1988.

On the same premise which led to the declaration of 1986 Act as ultra
vires the Constitution, a Writ Petition came to be filed. It, by reason by the
impugned judgment, was allowed by a Division Bench of the Andhra Pradesh
E High Court.

The correctness of the judgment of this Court in Osmania University
Teachers' Association (supra) was doubted by a two-Judge Bench inter alia
on the ground that the Commissionerate Act as also the 1988 Act dealt not.
only with higher education but also with intermediate education and having
p regard to the fact that Entry 66, List I of the VII Schedule of the Constitution
of India does not deal with intermediate education, the entire Act could not
have been struck down. It was further opined that many of the provisions of
the 1986 Act as also the impugned Act would be covered by Entry 25, List
IJI of the VII Schedule of the Constitution of India wherefor the State
Legislature has the requisite legislative competence.
G
The primal question which, therefore, arises for consideration is as to
whether the State of Andhra Pradesh has the requisite legislative competence
to enact the 1988 Act.

It is not in dispute that after the decision of this Court in Osmania
H University Teachers' Association (supra) the Committee set up by the
STATE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 839
Commission went into the matter in great details and opined that the State A
Act should be in aid of the UGC Act and not in derogation thereof. Sufficient
safeguards were provided as regards functioning of the Council so as to make
the proposed enactment within the purview of Entry 25 of List Ill.

The task before this Court is, therefore, to see as to whether the defects
pointed out by this Court in its earlier judgment had sufficiently been remedied B
so as to bring the same within the parameters of the Constitutional Scheme.

Before embarking upon a fu lier discussion on the matter we may notice
that the provisions of the 1988 Act are almost verbatim/ similar as contained
in the recommendations made by the Committee set up by the UGC.
c
This Court in Osmania University Teachers' Association (supra)
compared the provisions of University Grants Commission Act as also the
Commissionerate Act in details and came to the following conclusion:

"23. We have extracted only such of the provisions similar to those
contained in the UGC Act. That is not all. The Commissionerate Act D
yet contains sweeping provisions encroaching on the autonomy of the
Universities. Under Section 1l(l)(c) it is for the Commissionerate to
decide on the need for, and location of new colleges and courses of
study including Engineering Colleges. Section 11 (I )(f) provides power
to the Commissionerate to establish and develop resources centers for E
curriculum materials and continuing education of teachers. Section
I l(l)(g) confers power on the Commissionerate to co-ordinate the
academic activities of various institutions of higher education in the
State. It is also the duty of the Comm issionerate to undertake
examination reforms and assume accreditation functions [Section
I l(l)(h) and (i)]. Section I l(l)U) states that it is the duty of the F
Commissionerate to orga!Jise entrance test for University admission.
Section 11 (I )(k) states that it shall administer and grant scholarship
and organise work study programmes. Section 11 ( 1)( o) provides power
to transfer teachers from one aided private college to another such
college, subject to the rules made by the government. There is yet a G
devastating provision on the autonomy of Universities. Section 11 (2)
states that every University or college including the private college
shall obtain the prior approval of the Comm issionerate in regard to
: (i) certain of new posts; (ii) financial management; and (iii) starting
of new higher educational institutions. This 'Super Power' has been
preserved to the Commissionerate notwithstanding anything contained H
840 SUPREME COURT REPORTS [2003) 2 S.C.R.

A in any law relating to Universities in the State, the Board of
intermediate Education Act, 1971 and the Andhra Pradesh Education
Act, 1982." (Emphasis supplied)

This Court found that the Commissionerate Act has practically taken
over the academic programmes and activities of the universities as a result
B whereof the universities have been rendered irrelevant if not non-entities. It
was opined that both the UGC Act and the Commissionerate Act deal with
the same subject matter, namely, coordination and determination of excellence
in the standards of teaching and examination in the universities conveying
the same meaning.

c This Court however observed:-

"28. Before parting with the case we may say a word more. The
impugned Act wa~ the result of a report from a High Power Committee
constituted by the State Government. The Committee went into the
affairs of the higher education in the State. The Committee examined
D among other things, the curricula and courses of studies. The
Comm;ttee found as a fact that there is no proper co-ordination and
academic planning among the various bodies. It recommended to the
State Government the need to pass a proper legislation to streamline
the higher education. The State Government accepted the
E recommendations and passed the Act in question. The Act now
disappears for want of legislative competence. What about the need
to enact that Act? It will not vanish into thin air. The defects and
deficiencies pointed out by the High Power Committee in regard to
higher education may continue to remain to the detriment of the
interest of the State and the Nation. Such defects in the higher
F education may not be an isolated future only in the State of Andhra
Pradesh. It may be a common feature in some other States as well.

29. That apart, we often hear and read in newspapers with disgust
about the question papers leakage and mass copying in the University
examinations. It has stripped the university degrees of all its credibility.
G He indeed must be blind who does not see what is all happening in
some of the Universities.

30. The Constitution of India vests Parliament with exclusive authority
in regard to co-ordination and determination of standards in institutions
for higher education. The Parliament has enacted the UGC Act for
H
STATE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 841
that purpose. The University Grants Commission has, therefore, a A
greater role to play in shaping the academic life of the country. It
shall not falter or fail in its duty to maintain a high standard in the
Universities. Democracy depends for its very life on a high standard
of general, vocational and professional education. Dissemination of
learning with search for new knowledge with discipline all round
must be maintained at all costs. It is hoped that University Grants B
Commission will duly discharge its responsibility to the Nation and
play an increasing role to bring about the needed transformation in
the academic life of the Universities."

This exercise on the part of the Central Government and the UGC must C
have been undertaken in furtherance of the said observations.

The High Court in its impugned judgment compared the provisions of
the Commissionerate Act and the impugned Act and came to the conclusion
that even if the Act had been enacted in accordance with the guidelines
issued by the UGC and pursuant to the recommendations made by the High D
Level Committee; as the State Government lacks the requisite legislative
competence, it must necessarily be held to be ultra vires the Constitution.

Entry 66 of List I and Entry 25 of List III of VII Schedule of the
Constitution of India read as follows:

"66. Coordination and determination of standards, in institutions, for E
higher education or research and scientific and technical institutions.

25. Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 List
I; vocational and technical training of labour."
l F
The conflict in legislative competence of the Parliament and the State
Legislatures having regard to Article 246 of the Constitution of India must
be viewed in the light of the decisions of this Court which in no uncertain
terms state that each Entry has to be interpreted in a broad manner. Both the
parliamentary legislation as also the State legislation must be considered in G
such a manner so as to uphold both of them and only in a case where it is
found that both cannot co-exist, the State Act may be declared ultra vires.
Clause I of Article 246 of the Constitution of India does not provide for the
competence of the Parliament or the State Legislatures as is ordinarily
understood but merely provide for the respective legislative fields. Furthermore,
the Courts should proceed to construe a statute with a view to uphold its H
842 SUPREME COURT REPORTS [2003] 2 S.C.R.

A constitutionality. [See ITC Ltd v. Agricultural Produce Market Committee
and Ors., [2002] 9 SCC 232: AIR (2002) SC 852, Asstt. Director ofInspection
Investigation v. A.B. Shanthi etc., (2002) 6 SCC 259, Shri Krishna Gyanoday
Sugar Ltd and Anr. v. State of Bihar, 2003 (2) SCALE 226 and Welfare
Assocn. A.R.P., Maharashtra and Anr. v. Ranjit P. Gohil and Ors., (2003) 2
SCALE 288.
B
Entry 66 of List I provides for coordination and determination of
standards inter alia for higher education. Entry 25 of List Ill deals with
broader subject, namely, education. On a conjoint reading of both the entries
there cannot be any doubt whatsoever that although the State has a wide
C legislative field to cover, the same is subject to entry 63, 64, 65 and 66 of
List I. Once, thus, it is found that any State Legislation does not entrench
upon the legislative field set apart by Entry 66, List I of the VII Schedule of
the Constitution of India, the State Act cannot be invalidated.

Section 11 and Section 16 of the 1988 Act read thus:
D
"Sec. 11. Powers and functions of the Council:

(I) It shall be the general duty of the Council to co-ordinate and
determine standards in institutions of Higher Education or Research
and Scientific and Technical institutions in accordance with the
guidelines issued by the University Grants Commission from time to
E
time.

(2) The functions of the Council shall include:

I. Planning and Co-ordination:

F (i) to prepare consolidated programmes in the sphere of Higher r
Education in the State in accordance with the guidelines that may be
issued by the University Grants Commission from time to time, and
to assist in their implementation, keeping in view the overall priorities
and perspectives to Higher Education in the State.

G (ii) to assist the University Grants Commission m respect of
determination and maintenance of standards and suggest remedial
action of Higher Education in the State;

(iii) to evolve perspective plans for development of Higher Education
in the State;
H
STATE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 843
(iv) to forward the Developmental Programmes of Universities and A
Colleges in the State to the University Grants Commission along
with its comments and recommendations;
(v) to monitor the progress of implementation of such developmental
programmes;
(vi) To promote co-operation and co-ordination of educational B
institutions among themselves and explore the scope for interaction
with industry and other related establishments.
(vii) To fonnulate the principles as per the guidelines of the Government
and to decide upon, approve and sanction new educational
institutions by according permission keeping in view the various C
norms and requirements to be fulfilled;
(viii)To suggest ways and means of meeting additional resources for
higher education in the State.
II. Academic functions:- D
xxx xxx xxx

III. Advisory functions:-

xxx xxx xxx
E
Sec. 16: Annual Report: The Council shall prepare once in every
year, in such form and at such time as may be prescribed an annual
report giving a true and full account of its activities during the previous
year, and copies thereof shall be forwarded to the Government and
the Government shall cause the same to be laid before the Legislative
Assembly of the State. A copy of the report shall also be sent to F
University Grants Commission."

A bare comparison of the provisions of the 1988 Act with the provisions
of the Commissionerate Act would clearly demonstrate that the powers and
functions of the Council stand curtailed in so far as they are not only to
function in accordance with the guidelines issued by the University Grants G
Commission but its duty is to assist the Commission in respect of detenn ination
and maintenance of standards and suggest remedial action of Higher Education
in the State. In exercise of the power conferred upon it under the 1988 Act,
the Council can now only forward the programmes of universities and colleges
in the State to the University Grants Commission along with its comments H
844 SUPREME COURT REPORTS [2003] 2 S.C.R.

A and recommendations which necessarily would be subject to the latter's
acceptance. Even an Annual Report prepared by the Council although is
required to be forwarded to the Government which in turn is enjoined with
a duty to place before the Legislative Assembly of the State, but a further
requirement has been provided that a copy thereof shall also be sent to the
B University Grants Commission; Evidently the Commission on receipt of a
copy of the report may give its own suggestions for their implementation by
the Council. It is, therefore, not correct to contend as has been done by the
High Court in its impugned judgment that the Council also derives its power
to coordinate and determine the standards of institutions of higher education
or research and technical institutions including planning and coordination to
C prepare consolidated programmes in the sphere of higher education in the
State keeping in view the overall priorities and perspectives of higher
education. Although the High Court has noticed that the principal duties and
functions of the Council is to assist the UGC in respect of determination and
maintenance of standards and suggest remedial action; to evolve the
developmental programmes of Universities and Colleges in the State to the
D UGC along with its comments and recommendations to monitor the progress
of implementation of such developmental programmes; to promote cooperation
and coordination of educational institutions among themselves and to explore
the scope for interaction with industry and other related establishments which
not only had been done in accordance with the guidelines issued by the UGC
E from time to time. Despite the same it was held:

"On a comparative study of the provisions of the Act 26 of 1986 and
Act 16of1988, the functions of the Commissionerate and the functions
of the State Council well nigh are the same except to the extent of
stating that the Council should act in accordance with the guidelines
F issued by the UGC from time to time."

Once it is held that the duties and functions of the Councils are
comparmentalised and they have to act in accordance with the guidelines
issued by the UGC from time to time, it is preposterous to suggest that the
Council acts on its own and /or at the instance of the Government in the field
G of cooperation and determination of standards in institutions of higher
education as an independent body. Keeping in view the fact that the
Commission itself on the request of the Central Government constituted a
committee and laid down the parameters within which the Council can function
and subjected themselves to the restriction of working within the guide Iin es
issued by the UGC, we fail to understand as to how it can be contended that
H
STATEv. K. PURUSHOTHAMREDDY [S.B. SINHA, .1.) 845
both the Commissionerate Act as also the Council Act provide for same A
powers and functions. The modifications made in the 1988 Act vis-a-vis the
Commissionerate Act cannot be said to be so slight as has been opined by the
High Court so as to arrive at a conclusion that the 1988 Act still suffers from
the same vices. Having regard to the provisions of the 1988 Act and particularly
Section 11 thereof we have no doubt in our mind that the purpose of the said
Act, and the powers and functions thereof vis-a-vis the Commissionerate Act B
are absolutely distinct and different. In no way the 1988 Act can be said to
have an upper hand over the UGC Act.

It is not a case where the State Council of Higher Education were to
act independently irrespective of the standard of education set forth by the C
University Grants Commission. Its powers and functions, as indicated
hereinbefore, are absolutely different from that of 1986 Act.

In R. Chitralekha v. State of Mysore., (1964] 6 SCR 368 Subba Rao,
J. categorically held that the question as regard the impact of the Entry 66,
List I. and Entry 25, List III must be determined by reading the Central Act D
as well as the State Act conjointly. A state law providing for such standards
having regard to Entry 66 of List I would be struck down as unconstitutional
only in the event the same is found so heavy or devastating so as to wipe out
or appreciably abridge the central field and not otherwise. Once the powers
and functions of the Council is found to be subject to the guidelines issued
by the UGC and the perspective plan prepared by it would be subject to its E
approval, the question of standard of education set up by the State Act cannot
be said to be leading to wipe out or appreciably abridge the central field.

The 1988 Act expressly states that the same would be subject to the
Central Act. It emphasizes that the provisions thereof are for the purpose of F
filling up of the gaps and to control effectively a large number of universities
within which, having regard to their sheer number, the UGC itself would not
be in a position to have effectively control over them. If the UGC has an
overall control over the State Council, the Central field is not entrenched
upon. In a situation of this nature the doctrine of pith and substance must also
be held to be applicable. We must also take notice of the fact that the State G
of Tamil Nadu as also the State of West Bengal in terms of the National
Education Policy, 1986 as also the recommendations of the Committee framed
by the University Grants Commission enacted similar Acts.

The provisions of the impugned Act would clearly show that the State
Act is in aid of the Parliamentary Act and it does not in any manner whatsoever H
846 SUPREME COURT REPORTS (2003] 2 S.C.R.

A entrench thereupon.

A similar question came up for consideration in Naga People's
Movement of Human Rights v. Union of India, (1998] 2 SCC 109 wherein the
law has been laid down in the following terms:

B "65 .... The contention of Shri Goswami that the provisions of Sections
4 and 5 of the State Act are inconsistent with the provisions of Arms
Act enacted by Parliament also cannot be accepted because the said
provisions only provide for effective enforcement of the provisions
of the Arms Act in the disturbed areas and it cannot be said that they,
in any way, encroach upon the field covered by the Arms Act. The
c challenge to the validity of Sections 4 and 5 of the State Act is,
therefore, negatived."

-Yet again in Dr. Preeti Srivastava and Anr. v. State of MP. and Ors.,
(1999] 7 SCC 120, this Court held thus

D "35. The legislative competence of Parliament and the legislatures of
the States to make laws under Article 246 is regulated by the Vllth
Schedule to the Constitution. In the Vllth Schedule as originally in
force, Entry 11 of List II gave to the State an exclusive power to
legislate on

E "education including universities, subject to the provisions of Entries
63, 64, 65 and 66 of List I and Entry 25 of List III".

Entry 11 of List II was deleted and Entry 25 of List III was amended
with effect from 3-1-1976 as a result of the Constitution 42nd
Amendment Act of 1976. The present Entry 25 in the Concurrent List
F is as follows :

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

G Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List
I is as follows :

"66. Coordination and determination of standards in institutions for
higher education or research and scientific and technical institutions."

Both the Union as wel I as the States have the power to legislate on
H

.•
STA TE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 84 7

educatio·n including medical education, subject, inter alia, to Entry 66 A
of List I which deals with laying down standards in institutions for
higher education or research and scientific and technical institutions
as also coordination of such standards. A State has, therefore, the
right to control education including medical education so long as the
field is not occupied by any Union legislation. Secondly, the State
cannot, while controlling education in the State, impinge on standards B
in institutions for higher education. Because this is exclusively within
the purview of the Union Government. Therefore, while prescribing
the criteria for admission to the institutions for higher education
including higher medical education, the State cannot adversely affect
the standards laid down by the Union of India under Entry 66 of List C
I. Secondly, while considering the cases on the subject it is also
necessary to remember that from 1977, education, including, inter
alia, medical and university education, is now in the Concurrent List
so that the Union can legislate on admission criteria also. If it does
so, the State will not be able to legislate in this field, except as
provided in Article 254." D
(See also State of Haryana and Anr. v. Chanan Mal etc., [1976] 3 SCR
688, In re Hindu Women's Rights to Property Act., 28 AIR (1941) FC 72 and
R.MD. Chamabraugwalla v. The Union of India, [1957] SCR 930.

In Public Service Tribunal Bar Association v. State of U.P. and Anr., E
(2003) AIR SCW 653, a bench of which one of us (Hon'ble CJ!) was a
member, it has been held:

"28 ..... .Judicial system has an important role to play in our body
politic and has a solemn obligation to fulfil. In such circumstances it
is imperative upon the Courts while examining the scope oflegislative F
action to be conscious to start with the presumption regarding the
constitutional validity of the legislation. The burden of proof is upon
the shoulders of the incumbent who challenges it. It is true that it is
the duty of the constitutional Courts under our Constitution to declare
a law enacted by the Parliament or the State Legislature as G
unconstitutional when the Parliament or State Legislature had assumed
to enact a law which is void, either from want of constitutional power
to enact it or because the constitutional forms or conditions have not
been observed or where the law infringes the fundamental rights
enshrined and guaranteed in Part III of the Constitution."
H
848 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Submission of Mr. D. Ramakrishna Reddy, the learned counsel appearing
on behalf of the respondent to the effect that the 1988 Act is a colourable
piece of legislation is stated to be rejected. As noticed hereinbefore the State
Act seeks to plug the loopholes pointed out by this Court in Os mania University
Teachers' Association (supra). It seeks to bring the State Act in conformity
B with the constitutional parameters. Reliance placed by Mr. Reddy on State of
T.N. and Anr. v. Adhiyarnan Educational & Research Institute and Ors.,
[1995] 4 SCC 104 is equally misplaced. Therein it was found that the Tamil
Nadu Private Colleges (Regulation) Act and Rules framed thereunder as also
the Madras University Act entrenches upon provisions of All Indian Council
for Technical Education Act, 1987 and in that situation it was held:
c "30. A comparison of the Central Act and the University Act will
show that as far as the institutions imparting technical education are
concerned, there is a conflict between and overlapping of the functions
of the council and the University. Under Section 10 of the Central
Act, it is the Council which is entrusted with the power, particularly,
D to allocate and disburse grants, to evolve suitable performance appraisal
systems incorporating norms and mechanisms for maintaining
accountability of the technical institutions, laying down norms and
standards for courses, curricula, staff pattern, staff qualifications,
assessment and examinations, fixing norms and guidelines for charging
tuition fee and other fees, granting approval for starting new technical
E institutions or introducing new courses or programmes, to lay down
norms or granting autonomy to technical institutions, providing
guidelines for admission of students, inspecting or causing to inspect
colleges, for withholding or discontinuing of grants in respect of
courses and programmes, declaring institutions at various levels and
F .types fit to receive grants, advising the Commission constituted under
the Act for declaring technical educational institutions as deemed
universities, setting up of National Board of Accreditation to
periodically conduct evaluation on the basis of guidelines and standards
specified and to make recommendations to it or to the Council or the
Commission or other bodies under the Act regarding recognition or
G de-recognition of the institution or the programme conducted by it.
Thus, so far as these matters are concerned, in the case of the institutes
imparting technical education, it is not the University Act and the
University but it is the Central Act and the Council created under it
which will have the jurisdiction. To that extent, after the coming into
H operation of the Central Act, the provisions of the University Act will
-.,L,.,

STA TE v. K. PURUSHOTHAM REDDY [S.B. SINHA, l] 849

-- be deemed to have become unenforceable in case of technical colleges A
like the engineering colleges. As has been pointed out earlier, the
Central Act has been enacted by Parliament under Entry 66 of list I
to coordinate and determine the standards of technical institutions as
well as under Entry 25 of List III. The provisions of the University
Act regarding affiliation of technical colleges like the engineering
colleges and the conditions for grant and continuation of such B
affiliation by the University shall, however, remain operative but the
conditions that are prescribed by the University for grant and
continuance of affiliation will have to be in conformity with the
norms and guidelines prescribed by the Council in respect of matters
entrusted to it under Section 10 of the Central Act." C
The said decision ex facie is not applicable in the instant case. The law
was laid down therein in the following terms:

"41. What emerges from the above discussion is as follows :

(i) The expression 'coordination' used in Entry 66 of the Union List D
of the Seventh Schedule to the Constitution does not merely mean
evaluation. It means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain design, scheme
or plan of development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing the E
occurrence of such disparities. It would, therefore, also include
power to do all things which are necessary to prevent what would
make 'coordination' either impossible or difficult. This power is
absolute and unconditional and in the absence of any valid
compelling reasons, it must be given its full effect according to
its plain and express intention. F
(ii) To the extent that the State legislation is in conflict with the
Central legislation though the former is purported to have been
·- made under Entry 25 of the Concurrent List but in effect
encroaches upon legislation including subordinate legislation made
by the Centre under Entry 25 of the Concurrent List or to give G
effect to Entry 66 of the Union List, it would be void and
inoperative.
(iii) If there is a conflict between the two legislations, unless the State
legislation is saved by the provisions of the main part of clause
(2) of Article 254, the State legislation being repugnant to the H
850 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union
List or is repugnant to the law made by the Centre under Entry
25 of the Concurrent List, will have to be determined by the
examination of the two laws and will depend upon the facts of
B each case.
(v) When there are more applicants than the available situations/ seats,
.the State authority is not prevented from laying down high
standards or qualifications than those laid down by the Centre or
the Central Authority to short-list the applicants. When the State
c authority does so, it does not encroach upon Entry 6 of the Union
List or make a law which is repugnant to the Central law. •
•
(vi) However, when the situations/seats are available and the State
authorities deny an applicant the same on the ground that the
applicant is not qualified according to its standards or
qualifications, as the case may be, although the applicant satisfies
D
the standards or qualifications laid down by the Central law, they
act unconstitutionally. So also when the State authorities de-
recognise or disaffiliate an institution for not satisfying the
standards or requirements laid down by them, although it satisfied
the norms and requirements laid down by the Central authority,
E the State authorities act illegally."

Thus, there cannot be any doubt whatsoever that only to the extent of
conflict, the State law has to be struck. down and not otherwise.

Before parting with this case, it is relevant to notice that the respondent
F herein is merely a teacher of a university. It is true that he was one of the
petitioners in the earlier writ petition also questioning the validity of the
Commissioilerate Act. Both the Central Government as well as the University
Grants Commission in no uncertain terms stated before us that the Act is intra
vires, presumably, because they do not find any conflict between the University
Grants Commission Act and the 1988 Act.
G
At one point of time a question arose as to whether having regard to
the observations made by the Division Bench, the matter should be referred
to a Constitution Bench. We do not think so to do inasmuch as the question
which falls for consideration is not as to whether the decision of this Court
H in Osmania University is correct or not but really is as to whether the impugned
STA TE v. K. PURUSHOTHAM REDDY [S.B. SINHA, J.] 851

Act in its present fonn is in any way in conflict with the Central Act having A
regard to the changes effected therein pursuant to the recommendations of
the Committee constituted by the UGC at the instance of the Central
Government.

We are further of the view that the High Court committed a manifest
error in striking down the entire Act without bestowing its consideration to B
the fact that the State Act deals with not only higher education but also
intennediate education which in no manner deals with the subject matter of
Entry 66 of List I of VII Schedule of the Constitution of India. We are of the
view that the impugned enactment does not encroach upon the legislation
enacted by the Parliament and the same is a valid piece of legislation. C
For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. These appeals are allowed. In the
facts and circumstances of this case, however, there shall be no order as to
costs.
D
N.J. Appeals allowed.

-