S.M. Kamaluddin Fakhri v. The All India Council for Technical Education

Mr. R.Krishnamoorthy, Senior Counsel, leading the arguments made elaborate submissions. Mr. K.Duraiswami, Mr. Mohan Parasaran, Senior Counsel, Mr. Jeevarathnam, Mr. Pl.Narayanan, Mr. Natarajan, Mr. Sureshkumar, Mr. Zaffarullah Khan, besides adopting the arguments of Mr. Krishnamoorthy, also raised other contentions. All the arguments advanced are considered together. Individual submissions will be referred to whenever and wherever necessary. According to counsel:

3.1 State Government, by reason of the amended Regulation of 8(4)(e), will be exercising powers which are not meant to be exercised by the State Government. By reason of the insertion of "higher education" in Entry 66 of List 1 after deleting Entry 25 from List II and by replacing "Education" in Entry 11 of List II, the Supreme Court and various High Courts have been repeatedly holding that the State Government has no jurisdiction in the matter of establishing and administering technical institutions, and in those circumstances, insisting on NoC from the State Government is absolutely without jurisdiction; as per the amendment under challenge, NoC of State Government is a condition precedent for entertaining the application and on failure to comply with the condition of production of NoC for starting a new College, no hearing will be provided to the applicant; it is also stated that NoC from the affiliating University is a further requirement to consider the claim for approval by the Committee; thus, the amended provision confers power upon the State Government to decide the eligibility of a particular applicant even to apply for starting of a new college which is ultra vires the Constitution and illegal for the following reasons:

3.1.1. (a) Legislative function is sought to be delegated to another body contrary to the dicta laid down by the Supreme Court in - State of Tamil Nadu v.. Adhiyaman Educational Institute (1995 (4 ) SCC 104) Thirumuruga Krupananda Variyar & Variyar