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2009 DIGILAW 293 (JK)

Tawi Educational Trust v. State

2009-06-05

NIRMAL SINGH

body2009
1. This petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, is for a writ of certiorari quashing the provisions of the Jammu & Kashmir Private Colleges (Regulation and Control) Act, 2002 and the rules framed under the said Act vide SRO 339 of 2005, being ultra vires of the Constitution or in the alternative, the rules framed vide aforementioned SRO are sought not to be made applicable to the Engineering Colleges. Writ of certiorari is also sought quashing Cabinet decision dt. 14th of Sept98 being irrational, arbitrary and illegal. Direction is also sought in the nature of mandamus commanding upon the Board of Professional Entrance Examination to notify the seats pertaining to the petitioner college for the purposes of counselling and allotment of students for the Session 2008-09, with a further writ of mandamus commanding upon respondent State to consider the case of the petitioner for grant of permission to run the engineering college in view of the approval granted by the AICTE. 2. The facts for the disposal of this petition be noticed as under: Petitioner Trust (hereinafter referred to as the Trust) who got itself registered in the year 1995, decided to set up an engineering college under the name of Yogananda College of Engineering and Technology at Gurha Brahmana, Patoli, Akhnoor Road, Jammu. A project report in this regard was prepared by the Trust and submitted to the Secretary, Higher & Technical Education Department for issuance of a No Objection Certificate/permission for setting up the said college, in the year 2002, 2003 and 2004. No consideration, however, was done in this regard by the respondent State. 3. It is further stated in the writ petition that uptil 2004, the Regulations framed under All India Council for Technical Education Act, 1987 (here-in-after referred to as the Act of 1987), envisaged obtaining a No Objection Certificate from the concerned State Government before the AICTE could consider for grant of approval for setting up the technical institute but in the year 2006, the Regulations under the Act of 1987 were modified and in terms of Regulation 2.6.2, no separate No Objection Certificate was required to be submitted to the AICTE for setting up the institute. It is submitted that in terms of the aforementioned Regulations, the Trust again submitted its proposal to the AICTE on 27th of March07. It is submitted that in terms of the aforementioned Regulations, the Trust again submitted its proposal to the AICTE on 27th of March07. A copy of the said proposal was forwarded by the AICTE to the respondent State for seeking its views on 14th of Jan08, and the respondent State was requested to submit its views within a period of 30 days from the date of receipt of the proposal. It is stated that as no objection was raised by the State Government within the aforementioned period, the AICTE directed the Trust to appear before its Hearing Committee in terms of Regulation 2.6.3 on 25th of Feb08. After having recorded its satisfaction on the proposal submitted by the Trust, the Trust was issued a Letter of Intent dt. 25th of Feb08, in terms of which some formalities were required to be completed. It is stated that in pursuance to the said Letter of Intent, the Trust invested a huge amount of Rs. Three crores for raising infrastructure and completing other requirements. An inspection team of AICTE thereafter visited the premises and conducted the on-spot inspection alongwith one nominated member by the State Government who was the Principal, Government College of Engineering and Technology, Jammu, who acted as an expert member of the State Government/University to examine the preparedness of the Institution for imparting quality education as per the norms, standards and conditions prescribed by the AICTE for the year 2008-09. It is stated that the said Committee after inspecting the premises, recommended the case of the Trust for grant of approval of the State Government for running the said Institute. The further fact which is pointed out is that in terms of the Letter of Intent issued by the AICTE, an amount of Rs. 35 lacs was deposited in the shape of FDR in the joint account of the Trust and Regional Officer, AICTE, Chandigarh, for a period of eight years and also an inspection fee of Rs. 50,000/- was deposited by the Trust. 4. 35 lacs was deposited in the shape of FDR in the joint account of the Trust and Regional Officer, AICTE, Chandigarh, for a period of eight years and also an inspection fee of Rs. 50,000/- was deposited by the Trust. 4. The grievance of the Trust is that after completing all the formalities in terms of the Act of 1987 and the Regulations framed thereunder and the AICTE after having satisfied with the proposal submitted by the Trust for setting up and running the Engineering College, granted approval in favour of the Trust in terms of its letter dated 19th of May08, but the Board of Professional Entrance Examination (BOPEE), did not allot the students to the Trust institute on the ground that in terms of the Jammu and Kashmir Private Colleges (Regulation and Control) Act, 2002,(here-in-after referred to as the Act of 2002), prior permission of the State Government for running the Institute has not been obtained. It is this action on the part of respondent authorities which is being challenged in the present petition. 5. Mr Thakur, learned counsel for the Trust submitted that in terms of Regulation 2.6.2, only the views to be submitted by the concerned authority of the State/University to the AICTE are to be taken into consideration and no separate No Objection Certificate is required to be obtained. It is stated that in the present case after the proposal was submitted by the Trust before the AICTE in March07, and a copy of the same was forwarded to the respondent-State also, the AICTE vide its communication dated 14th of Jan08, referred to above, had requested the State Government to submit its views regarding the proposal submitted by the Trust within a period of thirty days but the authorities of the State did not chose to raise any objection or to submit its views within the said stipulated period. It is stated that under these circumstances, the respondent State having not complied with the mandatory provisions of the Regulations 2.6.2(b) and having not raised any objection within the stipulated period, there would be a deemed permission on the part of respondent State in favour of the Trust for running the Engineering College and the BOPEE cannot be permitted not to allot the students for the purposes of counselling for admission for Session 2008-09. It is stated that the Union of India has enacted the Act of 1987, which provides for a mechanism for grant of approval for setting up of an engineering college, the respondent State could not have enacted any law which prescribes separate conditions/norms for setting up of said a College. It is thus submitted that Section 3(1) of the Act of 2002, which lays down the condition of prior permission from the State Government for setting up/running a Private College is ultra vires of the Constitution and also not in accordance with the provisions of the Act of 1987. It is stated that the Act of 2002 is otherwise hit by the principles as enshrined by Article 254 of the Constitution of India being repugnant to the Act of 1987. It is submitted that the law as enacted by the Parliament should prevail and the State enactment to the extent of repugnancy would be void. It is further submitted that under similar circumstances in the case of State of Tamil Nadu and others v. Adhi Yaman Educational and Research Institute and ors, 1995(4) SCC 104, the Apex Court while dealing and interpreting Section 3 of the Tamil Nadu Private Colleges (Regulations) Act, which prescribed a similar condition as that of Section 3 of Act of 2002, held that such a condition cannot be taken into consideration and made enforceable being in conflict with the Central Act. Placing reliance on the judgment of the Apex Court in the aforementioned case, Mr Thakur submitted that the provisions of Section 3(1) of the Act of 2002, which lay down the same condition of prior permission from the State Government for running an engineering college being in conflict with the provisions of Act of 1987 and the rules and regulations framed there-under, cannot be made applicable to the case of the Trust so far as seeking permission from the State Government is concerned. 6. Mr Thakur, learned counsel for the Trust further submitted that the Cabinet decision No. 150/13 dt. 14th of Sept98, which is also being made the basis for non grant of approval, is also bad in the eye of law. It is stated that in the said Cabinet decision, it has been mentioned that no further request for setting up of engineering colleges shall be entertained unless detailed assessment is made in respect of manpower requirements in the concerned field. It is stated that in the said Cabinet decision, it has been mentioned that no further request for setting up of engineering colleges shall be entertained unless detailed assessment is made in respect of manpower requirements in the concerned field. The said observations incorporated in the Cabinet decision aforementioned are said to be made without taking into consideration any material or data available before the Cabinet for setting up/running a new private college in the State. It is stated that by the said observations, a total ban has been put on the opening of new engineering college in the State which action on the part of respondent-State is arbitrary, unfair, irrational and in violative of Article 14 of the Constitution. It is stated that the respondent State has adopted a discriminatory approach while taking the above Cabinet decision in considering the cases of three Engineering colleges, reference of which has been made in the said decision and putting a complete ban on the opening of any new college in the State in future. It is stated that if the State Government would have been fair enough in its action and would have informed the AICTE about the aforementioned Cabinet Decision when the AICTE had sought its views within a period of 30 days, the Trust would have not invested huge amount of Rs.3 Crores after issuance of Letter of Intent by the AICTE. 7. Learned counsel for the Trust further submitted that in terms of entry 66 of Union List of the VII Schedule, the power to enact a law with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions lies exclusively with the Union. It is stated that in terms of Entry 25 of the concurrent List of the same Schedule, the States have also been given the right to legislate in the matters pertaining to education including technical education, medical education and universities but this is subject to the provisions of Entries 63, 64, 65 and 66 of the Union List. It is thus stated that the Union of India having enacted the Act of 1987, which provides a mechanism for grant of approval for setting up of an engineering college, the State cannot enact any law which is in conflict with the provisions of the aforementioned Act. 8. It is thus stated that the Union of India having enacted the Act of 1987, which provides a mechanism for grant of approval for setting up of an engineering college, the State cannot enact any law which is in conflict with the provisions of the aforementioned Act. 8. Mrs Seema Shehkhar,learned Additional Advocate General, appearing on behalf of respondent State, submitted that the State in exercise of its powers has rightly enacted the Act of 2002, as also the Rules and Regulations framed thereunder. It is stated that under the provisions of the aforementioned Act, no private college can be established or run in the State of J&K without prior permission of the State Government or the competent authority. It is stated that the application of the Trust was considered by the authority concerned and rejected vide Government Order No. 232-HE of 2008 dt. 31st of Oct08. It is stated that so far as nomination of a member of the Inspection Committee is concerned, the same was done to associate with the expert visiting committee of AICTE to examine the preparedness of the Institution in the State to impart quality education as per the norms and standards and the conditions prescribed by the AICTE from time to time. It is thus stated that only nomination of an expert member would not be taken as an approval by the competent authority. So far as the Cabinet decision is concerned, it is stated that the same has been taken after taking various aspects into consideration regarding the growing number of unemployed youths both Degree and Diploma holders in the State. It is stated that the assessment of which reference is made in the Cabinet decision, is concerned, the same is being made by a Technical Agency and after the same is completed, the matter would be considered afresh by the competent authority. It is thus submitted that the Trust having not obtained No Objection from the competent authority, cannot be allowed to run the institution in the State. 9. The only point in issue which requires to be dealt with in the present petition is whether it is obligatory on the part of the Trust to obtain No Objection Certificate from the Respondent State before setting up Engineering College in the State. 10. 9. The only point in issue which requires to be dealt with in the present petition is whether it is obligatory on the part of the Trust to obtain No Objection Certificate from the Respondent State before setting up Engineering College in the State. 10. Before examining the point in issue and adverting to the pleas raised by the learned counsel for the parties, it would be appropriate to notice some of the provisions of the Act of 1987 and the Regulations framed thereunder enacted by the Union of India, Act of 2002, enacted by the State of Jammu and Kashmir and other provisions on which reliance is being placed by both the sides. 11. The Act of 1987 has been enacted by the Central Government with a view to ensure co-ordinated development of technical education system throughout the country. The necessity to enact the said Act was felt after the private engineering colleges entered the field and started imparting education in disregard to the standing instructions/guidelines on the subject without providing the required infrastructure. It was under these circumstances, a need was felt for maintenance of educational standards by such like institutions. The AICTE was given the powers under the said Act to undertake survey in various fields of technical education, collect data on all related matters and co-ordinate the development of technical education in the country. The powers and functions of the Council have been mentioned in Section 10 of Chapter III. Under Section 10(k) of the said Chapter, the AICTE has the power to grant approval for starting new technical institutions. The said provision is relevant and is being reproduced below:- "10(k): grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;" Clause (l) of Section 10 permits the AICTE to advise the Central Government in certain matters. The said provision is relevant and is being reproduced below:- "10(k): grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;" Clause (l) of Section 10 permits the AICTE to advise the Central Government in certain matters. The said provision reads as under:- "(l) advice the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates;" Clause (m) deals with laying down norms for granting autonomy to technical institutions, clause (n) relates to taking necessary steps to prevent commercialisation of technical education, clause (o) provides guidelines for admission of students to technical institutions and Universities imparting technical education, clause (p) relates to inspection of any technical institution, clause (q) is with respect to withholding or discontinuing the grant in respect of courses and Programmes in case any technical institute fails to comply with the directions given by the AICTE within the stipulated period of time and take such other steps which may be necessary for ensuring compliance of the directions issued by the AICTE. As per Clause (r), steps can be taken by the AICTE to strengthen the existing organisation and to set up new institutions and to ensure effective discharge of the AICTEs responsibilities and to create positions of professional, technical and supporting staff based on requirements, clause (s) relates to declaring a technical institute fit to receive grants at various levels and types offering courses in technical education, clause (t) is to advise the University Grants Commission for declaring an institute imparting technical education as a deemed University and clause (u) to set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it in order to make recommendations for recognition or de-recognition of an institute or the programme. 12. 12. The AICTE, in exercise of powers conferred upon it in terms of Section 23(1) of the Act of 1987, has framed Regulations which have been made applicable to the proposals relating to: "a/ grant of approval for establishment of new technical institutions; b/ grant of approval for introduction of new courses or programs and/or increase and/or variation in intake of seats in existing courses or programs in technical institutions; c/ grant of extension of approval for the existing technical institutions;" 13. Regulation 2.5 deals with the requirement of grant of approval. In terms of the said Regulation, no new technical institution of Government, Government aided or private (self financing) institution, whether affiliated or not to any University shall be started and no new course/programme can be introduced and there can be no variation in intake capacity in the existing courses/programmes without obtaining prior permission from the Council. In terms of Regulation 2.5(2), no technical institution shall conduct any technical course/programme without obtaining prior approval of the Council. In terms of Regulation 2.5(3), even the technical institute cannot be affiliated by the University or a Body or Board and even the courses conducted by the said institute unless there is an approval in this regard by the AICTE. 14. Regulation 2.6.2(a) and (b) are relevant and are being reproduced below:- "2.6.2(a): The Regional Office shall forward the proposals complete in all respects, within 15 days from the date of receipt of such proposals, one copy each of the proposals to the concerned State Govt./Union Territories and Affiliating University for obtaining their views within 30 days. (b) The State Govts and the Affiliating Universities shall forward its views within 30 days from the date of receipt of the proposals from the Regional Office. The State Govt./and the affiliating university, shall provide reasons and justification to substantiate their stand. The views of the concerned State Government/Universities shall be taken into consideration while processing the proposals for establishment of new technical institutions. Accordingly, no separate No Objection Certificate (NOC) is required to be submitted to the AICTE by the Applicant Society/Trust from the concerned State Govt/University." 15. The views of the concerned State Government/Universities shall be taken into consideration while processing the proposals for establishment of new technical institutions. Accordingly, no separate No Objection Certificate (NOC) is required to be submitted to the AICTE by the Applicant Society/Trust from the concerned State Govt/University." 15. Regulation 2.6.9 (a),(b) and (c) is also relevant and is being reproduced below:- "2.6.9(a) An Expert visiting Committee shall visit the proposed premises of the institution on payment of requisite processing fee by the Applicant Society/Trust and examine the preparedness of the institution to impart quality education as per the norms & standards and conditions prescribed by the Council from time to time. (b) The Expert visiting Committee shall comprise of the following members: 16. Three Expert members not below the level of Associate Professor/Reader nominated by the Chairman, AICTE. 17. Expert members one each not below the level of Associate Professor/Reader to be nominated by the State Govt. and the respective Affiliating University. 18. Concerned Regional Officer or an Officer of the Council as convener to be nominated by the Chairman AICTE. (a) The Expert Committee shall be headed by an academician/professional of repute from the above committee. (d) The documents to be made available to the visiting Expert Committee shall be notified in the Approval Process Handbook from time to time." 19. The relevant abstract of the Cabinet decision which is being made the basis of non grant of approval/ No Objection by the State Government is also being reproduced below:- "Applications of other proposed private engineering colleges were not approved and no further request for setting up of engineering colleges shall be entertained unless detailed assessment is made in respect of manpower requirements in the concerned field. This assessment shall be done by the Planning Department." 20. Section 3(1) of the Act of 2002, which prescribes prior permission from the State Government for setting up a new private college in the State of Jammu and Kashmir reads as under:- "3. This assessment shall be done by the Planning Department." 20. Section 3(1) of the Act of 2002, which prescribes prior permission from the State Government for setting up a new private college in the State of Jammu and Kashmir reads as under:- "3. No private college to be established or run without prior permission-(1) No private college shall be established or run without the prior permission, in writing, of the Government or the competent authority." As indicated above, the question which is required to be considered in this case is as to whether after the enactment of Act of 1987, referred to above and framing of Regulations by the AICTE in exercise of powers conferred upon it in terms of the said Act, the State Government has the power to accord approval or withdraw permission to run a technical institution as defined in the Act of 1987. 21. In terms of Article 246 of the Constitution of India, the Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I and III and the State legislature has the power to make laws in respect to any of the matters enumerated in List II. The Parliament has also the power to make laws on matters not enumerated in List II for any part of the territory of India not included in a State. In terms of Article 248, the Parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent list or the State list. In terms of the provisions of Article 254(1), if there is an inconsistency between any law made by the Parliament and that made by the State Legislature, then, the law made by the Parliament is to prevail. In terms of the provisions of Article 254(1), if there is an inconsistency between any law made by the Parliament and that made by the State Legislature, then, the law made by the Parliament is to prevail. The said Article reads as under:- "254(1).Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Cl.(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void." 22. The State of Jammu and Kashmir in terms of the provisions of Article 370 of the Constitution of India, enjoys a special status and under these circumstances, it is to be seen as to whether the provisions of Act of 1987 and the Regulations framed by the AICTE which has been established under the said Act, can be made applicable to the State. At this stage, it would be relevant to notice the provisions of Article 370. The said provisions in so-far-as relevant are being reproduced below:- "370: Temporary provisions with respect to the State of Jammu and Kashmir-(1) Notwithstanding anything in this Constitution,- (a) (b) The power of Parliament to make laws for the said State shall be limited to- (i) those matters in the Union List and the Concurrent List which in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may be order specify. Explanation: -- The provisions of Art.1 and of this article shall apply in relation to that State: (c) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify; Provided That no such order which relates to the matters specified in the Instrument of Accession of State referred to in para (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to para (ii) of sub clause (b) of Cl.(1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify; Provided that the recommendation of the Constituent Assembly of the State referred to in Cl. (2) shall be necessary before the President issues such a notification." 23. In terms of the provisions added to the explanation of the aforementioned Article, no order which relates to the matters specified in the Instrument of Accession of State referred to in para (i) of sub clause (b) can be issued except in consultation with the State Government or no such order which relates to the matters other than those referred to in the last preceding provisions shall be issued except with the concurrence of the State Government. At this Stage, it would be apt to notice the preamble of Act of 1987. At this Stage, it would be apt to notice the preamble of Act of 1987. This reads as under:- "An Act to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and co-ordinate development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education and for matters connected therewith." 24. A perusal of the preamble of the Act of 1987 shows that the AICTE under the said Act stands established for coordinated and integrated development of the technical education system at all levels throughout the country and there is no exception in this regard so far as the State of J&K is concerned. 25. As indicated above, the Parliament under the Constitution has the power to make laws with respect to any of the matters enumerated in List I and III of VII Schedule and also with respect to matters enumerated in List II of the said Schedule for any part of the territory of India not included in a State. As per Entry 25 of List III of Schedule VII of the Constitution, the Parliament is also competent to make laws in regard to matters pertaining to education, including technical education, medical education and Universities. It was in exercise of the said powers that the Act of 1987 has been enacted. Since, it has been provided in Article 370 of the Constitution, that the Parliament can make law for the State of Jammu and Kashmir in respect of items indicated in list I and III of Schedule VII, the Act of 1987, which has been enacted by the Parliament and extended to whole of the country, would be applicable to the State of Jammu and Kashmir also. The respondent State has not pleaded in its response nor Mrs Seema Shehkhar, learned Additional Advocate General, appearing for the State, made any submission that before making applicability of the Act of 1987 to the State of J&K, the concurrence was not obtained by the President. The respondent State has not pleaded in its response nor Mrs Seema Shehkhar, learned Additional Advocate General, appearing for the State, made any submission that before making applicability of the Act of 1987 to the State of J&K, the concurrence was not obtained by the President. When the President has extended the said Act to the whole of the country including the State of J&K and no exception has been given in this regard, then, it has to be presumed that the concurrence must have been obtained from the State Government so far as the applicability of the said Act to the State is concerned. The powers in this regard excercised by the President regarding making applicability of the Act of 1987 to all parts of the country including the State of J&K, thus, cannot be curtailed. In this regard, it would be apt to notice the observations made by the Apex Court in the case of AIR 1970 SC 1118, Sampath Parkash v. State of Jammu and Kashmir and anr. What has been observed in para 13 of the judgment is being reproduced below:- "Article 368 has been applied to Jammu and Kashmir primarily with the object that amendments made by the Parliament in the Constitution of India as applicable in the whole of the country should also take effect in the State of Jammu and Kashmir. The proviso, when applying this article serves the purpose that those amendments made should be made applicable to the State of Jammu and Kashmir only with the concurrence of the State Government and after such concurrence is available these amendments should take effect when an order is made under Article 370 of the Constitution. Thus, Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for the rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even, in this process, the powers of the President under Article 370 have to be exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Article 370." 26. Even, in this process, the powers of the President under Article 370 have to be exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Article 370." 26. As noticed above, the Act of 1987 has been made applicable to all parts of the country including the State of J&K and this power exercised by the President in view of the above legal position cannot be curtailed. 27. At this stage, it would be relevant to mention that wherever any Act enacted by the Parliament is not to be made applicable to the State of J&K, there is a mention of the same but while enacting the Act of 1987, no exception has been given and this Act has been made applicable to whole of the country including the State of J&K. 28. There is another aspect of the matter. In terms of the Regulations framed by the AICTE under the Act of 1987, which stand noticed above, the AICTE has to accord approval to the setting up of a new engineering college only after consultation with the State concerned. In terms of Regulation 2.5 framed by the AICTE in exercise of powers conferred upon it by Section 23(1) of the Act, as noticed above, no new technical institution of Government, Government aided or private (self financing) institution can be started and no new course/programme can be introduced without prior permission from the Council. In terms of Regulations 2.6.2(b), noticed above, there is no requirement of separate No Objection Certificate (NOC) from the State Government/University to be submitted to the AICTE by any applicant/Society/Trust. Therefore, Clause 3(1) of SRO 339 of 2005, vide which it has been laid down that no private college shall be established or run without prior permission in writing from the competent authority, being inconsistent with the aforementioned Regulation 2.6.2 framed by the AICTE, cannot be sustained. This is because the said provision made by the State legislation is in conflict with the Central legislation so far as obtaining of prior approval from the State Government is concerned and when such is the situation, the law made by the Central legislation has to prevail. This is because the said provision made by the State legislation is in conflict with the Central legislation so far as obtaining of prior approval from the State Government is concerned and when such is the situation, the law made by the Central legislation has to prevail. Reliance in this regard can be placed on the judgment of the Apex Court reported as State of T.N. and another v. Adhiyaman Educational & Research Institute and ors, (1995)4 SCC 104. What has been observed in para 41 of the judgment in the above case is being reproduced below:- "..(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 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 Central legislation, the same would be inoperative." 29. In the present case also, the State legislation by laying down the above condition i.e. 3(1) of SRO referred to above, has encroached upon the legislation made by the Union, and therefore, the same being in conflict with the Central legislation can not be made effective and operative unless and until, the applicability of Act of 1987, to the State of J&K, as indicated above, is itself challenged by the State. 30. In Jaya Gokul Educational Trust v. Commissioner & Secretary to Government, Higher Education Department, Thiruvanathapuram, Kerala State and another, (2005)5 SCC 231, the State of Kerala, had also taken an objection that since the petitioner has not obtained prior approval from the State of Kerala to establish a college, no permission can be allowed to run the college. The Apex Court relying on Adhiyamans case (supra) held that: "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 nor any other law which specifically required the "approval" of the State Government. The Apex Court relying on Adhiyamans case (supra) held that: "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 nor any other law which specifically required the "approval" of the State Government. It was contended that the T.N. 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 I that in T.N. case, Section 10(k) of the AICTE Act was referred to and the power of "approval" for establishing a technical institution was considered. 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 T.N.case." 31. It was further held in the above case that in case the State of Kerala had a policy, it should have brought the same to the notice of AICTE for taking appropriate action in the matter but the State authorities of their own cannot reject the proposal on the ground that prior permission has not been obtained from the competent authority. Similar is the position in the present case also. In case, the State of J&K was having the policy that permission is required, then, it should have submitted its views which were so invited by the AICTE also. Having not done so, the State cannot raise an objection that petitioner Trust has not obtained prior permission therefore, it cannot be allowed to run its college. 32. It be further noticed that in terms of Regulation 2.6.2(a), reproduced above, whenever, a proposal is received by the Regional Office of the Council for setting up a technical institution, the said proposal complete in all respects is being sent to the concerned State Government/Union Territories/Affiliating Universities within 15 days of the receipt of proposal for obtaining views within a further period of 30 days. While forwarding its views, the State Government/Union Territory/University concerned has to give reasons and justification to substantiate their stand. After receipt of the said views, the AICTE processes the case for establishment of new technical institution. While forwarding its views, the State Government/Union Territory/University concerned has to give reasons and justification to substantiate their stand. After receipt of the said views, the AICTE processes the case for establishment of new technical institution. Thereafter in terms of Regulation 2.6.9(a) an Expert Committee from the AICTE accompanied by an Expert member nominated by the State Government and affiliating University concerned visits the proposed premises of the institution. It is only after the said formalities are complete, the AICTE taking into consideration the preparedness of the institution, allows permission or rejects the case for running of the said institution. In this case also, as is specifically pleaded in the petition, an inspection team of AICTE after receiving the proposal from the Trust, forwarded its copy as per the requirement to the State and invited its views. The State Government, however, did not respond to the same. Thereafter, an inspection team of AICTE visited the premises of the Trust and conducted on spot inspection. The State Government also nominated one expert member as required in terms of the Regulation aforementioned. The State while adopting this course, neither raised any objection at any stage nor submitted its views to the AICTE as to whether the Trust institution cannot be allowed to run due to lack of infrastructural facility or due to non obtaining of prior permission from the State Government, and on the other hand, deputed its expert member who accompanied the inspection team of the AICTE and conducted on spot inspection of the premises of the Institution. The stand of the State that the expert member was only nominated to associate with the expert visiting committee of AICTE to examine the preparedness of the Institution and the same cannot be treated as an approval, thus, cannot be accepted. If the State was of the firm view that the Trust has not obtained prior permission, then, there was no question of deputing its expert member to inspect the premises of the Institution and on the other hand, as indicated above, should have submitted its views to the AICTE. If the State was of the firm view that the Trust has not obtained prior permission, then, there was no question of deputing its expert member to inspect the premises of the Institution and on the other hand, as indicated above, should have submitted its views to the AICTE. Once the State Government deputed its expert member as required in terms of Regulation 2.6.9(a) alongwith the Visiting committee of the AICTE for making on spot inspection and raised no objection nor submitted its views till the approval was granted by the AICTE, then, it will be a deemed permission in favour of the petitioner Trust for running the institution. Under such circumstances, the State Government, as observed above, cannot be now allowed to raise the objection that Petitioner Institution cannot be permitted to run without prior permission from the Competent authority, which otherwise, as observed above is not required in terms of the provisions of the Act of 1987 and the Regulations framed by the AICTE. 33. So far as the Cabinet decision 150/13 dt. 14th of Sept98 is concerned, the State Government vide the above decision considered grant of permission in favour of three Institutions and observed that no further request for setting up of engineering colleges shall be entertained unless detailed assessment is made in respect of manpower requirements in the concerned field. While making above observations, it has not been mentioned as to on what basis the case of three engineering colleges was approved and what was the basis for rejecting the case of other private engineering institutes/colleges.It has also not been made clear as to what would be the manpower assessment required on the basis of which permission can be considered for establishment of new engineering colleges in the State. The State has also not referred any ground for distinguishing the case of three approved engineering colleges with those whose proposal has been rejected. Even otherwise, it is not the case of the respondent State that the petitioner Trust was lacking any manpower requirement or infrastructural facility. On the other hand, as indicated above, the State deputed its expert member along with the visiting committee of the AICTE. Even otherwise, it is not the case of the respondent State that the petitioner Trust was lacking any manpower requirement or infrastructural facility. On the other hand, as indicated above, the State deputed its expert member along with the visiting committee of the AICTE. Proper inspection of the premises of the petitioner Institute has been done but no objection was submitted to the AICTE that the said college/institute cannot be allowed to run due to lack of any infrastructural facility or manpower requirement. In the absence of any such material on record, the State Government should not have adopted a discriminatory approach while dealing with the cases of petitioner Trust and accepting the setting up/running of only three engineering colleges reference of which has been made in the Cabinet decision. The said decision, therefore, so far as it observes that no further request for setting up of engineering colleges shall be entertained, is held to be arbitrary, unreasonable, capricious, perverse and illegal. The learned counsel for the petitioner is right in his submission that the respondent State has not framed any fool proof policy so far as the entertainment of the fresh proposals for setting up new private technical institutions in the State is concerned. The same is apparent from the aforementioned Cabinet decision itself. The respondent-State vide the said decision which was taken in the year 1998 had granted approval in favour of three engineering colleges referred to in the said decision and thereafter rejected the proposal of all other engineering colleges subject to the detailed manpower assessment which was stated to be done by the Planning Department. Nothing has been placed on record by the respondents as to how many proposals were received by the State Government for setting up technical institutions in the State after 1998 and as to what detailed assessment has been made by the Planning department and what suggestions have been furnished in this regard to the competent authority for setting up new engineering colleges in the State, when the need of the hour is that the concerned State authorities should be fair enough in rendering their duties so far as imparting proper education and training, maintenance of educational standards, promotion of qualitative improvement of technical education and providing of other infrastructure is concerned. Under these circumstances, the plea raised by the learned Additional Advocate General that before allowing setting up of a new private engineering college in the State, which permission otherwise is not required in terms of the Act of 1987 and the Regulations framed by the Council, that the State has to see the increasing number of unemployed youths, cannot be said to be a plea which requires any consideration. In case, the State authorities start looking to this aspect of the matter that as the unemployment is increasing day by day, therefore, no new college/institution is to be established, then, the whole education system in the country would come to a stand-still. The State authorities are under an obligation to create employment facilities for the youth of the country but cannot be permitted to take a stand that because unemployment is increasing, therefore, no new engineering college/institute can be allowed to run for the purposes of imparting education. If this is done, then, the State will be at liberty to close even those institutions in the State who are imparting primary education. Such an act on the part of the State will be violative of the fundamental rights of not only those citizens who want to get the technical education or education in any other field but also of those who want to establish new technical institutions in the field of art, medicine, engineering etc., though they have to comply with the norms and standards as laid down in this regard by the competent authority. As noticed above, it was only for ensuring co-ordinated development of technical education system, that the Act of 1987 was enacted by the Central legislation and has been made applicable to the whole of the country including the State of J&K, and therefore, it is expected that the State authorities would be fair enough to act in accordance with the provisions of the Act and the Regulations framed there-under. 34. For the reasonsmentioned above, this petition is disposed of with the following directions:- 1/ Provision 3(1) of SRO 339 of 2005, which prescribes prior permission from the competent authority for setting up a new private engineering college is held to be ultra vires of the Constitution and is accordingly quashed; 2/ The Cabinet decision dt. 34. For the reasonsmentioned above, this petition is disposed of with the following directions:- 1/ Provision 3(1) of SRO 339 of 2005, which prescribes prior permission from the competent authority for setting up a new private engineering college is held to be ultra vires of the Constitution and is accordingly quashed; 2/ The Cabinet decision dt. 14th of Sept98, so far as it lays down the condition that no further request for setting up of engineering colleges in the State shall be entertained is also held to be arbitrary, illegal, against the principles of natural justice and is struck down; 3/ The petitioner Trust shall be allowed to run its college in case the same has been granted approval by the AICTE in terms of the Act of 1987 and the Regulations framed thereunder; 4/ The University concerned shall consider the case of the Trust for affiliation and allocation of students in accordance with the relevant rules for the ensuing session 2009-10 and not for the Session 2008-09 as the students, if now allocated, would not be able to cover the minimum attendance. 5/ That the State Government will formulate a policy regarding manpower requirement and other infrastructural facility for running/establishment of a new Engineering College/Institute in future but this shall be in consistence with the norms and standards laid down by the AICTE. Let appropriate steps in this regard be taken within a period of two months from the date, a copy of this order is received by the respondent State. A copy of this order shall be sent to the Chief Secretary of the State.