- (1.) The petitioner herein is one of the trustees of Tmt. Kannammal Educational Trust. In the affidavit filed in support of the writ petition, the petitioner trustee has stated that the Trust decided to start a Law College at Madras under the name and style of the Tamil Nadu Law College from the Academic Year 1994-95. It is stated that the trust possesses sufficient land, building funds and all other infrastructural facilities to start the said Law College on a self-financing basis. After having made all such arrangements, the petitioner made an application to the Bar Council of India on 1-4-1994 requesting the @page- Mad304 Bar Council of India to grant permission to start the college in the City of Madras. In response to the said application, the Bar Council of India sent a copy of the questionnaire which was directed to be filled and re-submitted to the council through the University. It is further stated that the petitioner complied with the said requirements and also paid a sum of Rs. 15,000/- towards inspection fees. The Bar Council of India appointed an inspection team and the said team inspected the premises of the petitioner-Trust on 9-8-1994 and after the inspection by a proceeding dated 19-8-1994 the Bar Council of India granted permission to the petitioner-Trust to run 5 years Law Course only from the Academic Year 1994- 95. It is also stated that the Bar Council of India permitted the petitioners to admit students in the first year class for the current session, i.e., 1994-95. The petitioner-Trust made an application to the University of Madras, the respondent herein for affiliation of the college for the year 1994-95 on 2-8- 1993. The University of Madras by its communication dated 22-9-1994 rejected the application. The said letter reads as follows :- From The Registrar, University of Madras.To The Chairman, Tmt. Kannammal Educational Trust, Madras-600 017.Sir,Sub: Starting of Law College in the name of Tamil Nadu Law College -Regarding.Ref.: Your letter dated 10-8-1994.________I am to inform you that the Syndicate at its meeting held on 8-9- 1994 considered the letter received from the Chairman, Tmt. Kannammal Educational Trust, Madras-17 for establishing the New Law College in the name and style of Tamil Nadu Law College, Madras together with permission letter dt. 19- 8-1994 from the Bar Council of India, New Delhi and resolved as rejected since the Trust has not submitted G.O. from Government of Tamil Nadu.Yours faithfully,Sd/-Registrar.Aggrieved by the same, the petitioner-Trust has approached this Court by way of this writ petition.
(2.) A counter-affidavit has been filed on behalf of the University of Madras wherein it is stated that the letter dated 2-8-1993 of the petitioner-Trust was not received and only the subsequent letter 17-6-1994 was received and thereafter the matter was considered by the Syndicate in the meeting held on 8-9-1994. It is further stated in the counter-affidavit of the respondent as follows :- "I respectfully submit that when the proposals were received from various educational agencies for opening of new Law Colleges for the academic year 1994-95, as per the recommendations of Syndicate Committee on recognition, affiliation and inspection of College dated 30-5-1994, the Syndicate in the meeting held on 29-6-1994 has resolved that the educational agencies applied for starting of new Law Colleges be informed that the approval of the Bar Council of India and Government Order for starting Law College be obtained and forwarded to the University. The Syndicate being a statutory authority to grant affiliation to the colleges as per the Madras University Act, 1923 is entitled to impose such stipulations which are permissible in law. It was in accordance with the said decision of the Syndicate the proposal of the petitioner to start Law College for 1994-95 was rejected also on the ground that the Government Order was not obtained.I respectfully submit that inasmuch as the petitioner has not made application in the proper form within time, the petitioner is not entitled for consideration for affiliation for the year 1994-95. That apart the petitioner has not accompanied the Government Order for starting a Private Law College. It is not correct for the petitioner to state that the State Government has no say in the starting of a Law College. Even a perusal of the letter of the Bar Council of India dt. 19-8-1994 which was subsequently sent by the petitioner along with the letter dt. 24-8-1994 itself would show clearly that the petitioner has to obtain no objection from the Government and the University to start the Private Law College. That apart it is unsustainable to state that the starting of Law College is within the purview of Entry No. 66 of the List 1 of Schedule VII of the Constitution of India. That relates to the co-ordination and determination of standard in institutions for High Education and Research and Scientific and Technical Institutions.I respectfully submit that in respect of starting of the Private Law College which is also a college within the meaning of the Tamil Nadu Private Colleges Regulation Act 1976, it is no doubt true that the Bar Council of India's permission is necessary being the professional body but the State Government's consent is also required as seen in the letter of the Bar Council of India dated 19-8-1994 itself."
(3.) It is submitted by Mr. Somayaji, learned senior counsel appearing for the petitioner that there is infirmity in the impugned order dated 22-9-1994 of the respondent University of Madras in rejecting the application of the petitioner trust for affiliation on the ground that the trust has not submitted G.O. from Government of Tamil Nadu. In this connection, the learned senior counsel referred to the Madras University Act of 1923. Section 19(ii) of the said Act reads as. follows: The Syndicate shall have the following powers namely.....(ii) "To affiliate colleges to the University and to recognise colleges as approved colleges".He also refers to the statutes made under S.30 of the Madras University Act (hereinafter referred to as the Act), and in particular Chapter XXVI-1(a) which reads as follows dealing with Affiliated College:"Affiliated College" means any college affiliated to the University and providing course of study for admission to the examinations for degrees 'of the University and includes' a college deemed to be affiliated to the University under the Madras University (Amendment) Act, .1966".Statute 37 of Chap. XXVI reads as follows:"A college applying for affiliation or approval shall send a formal letter of application to the. Registrar between the 1st July and 31st October proceeding the academic year in which the courses are proposed to be started and shall give full information in the letter of a application on the following matters:a) Constitution and personnel of the Managing Body.b) Subjects and courses in which affiliation or approval is sought.c) Previous, if any, for affiliation or approval in the same subjects and their disposal.d) Accommodation, equipment, the strength of the College, the number of students for whom provision has been made or is proposed to be made. The information relating to accommodation should be accompanied by drawings.e) Qualifications, salaries and work of the teachers' together with a time-table or work.f) Hostel and lodgings, and play-ground, and residence for the Principal and the other members of the staff.g) Fees proposed to be levied and the financial provision made for capital expenditure on buildings and equipment for the continued maintenance of the college".Learned senior counsel appearing for the petitioner submitted that there is no provision under the Madras University Act, 1923 for any approval from the Government of Tamil Nadu and in the absence of any provisions in the Act, the impugned letter rejecting the application of the petitioner trust for affiliation of the Law College of the petitioner trust is unsustainable. On the other hand Mr. P. Jothimani, learned counsel appearing for the respondent/University, submitted that even though the impugned order does not mention the provision of the law under which it has been rejected, contended that the application of the petitioner trust is covered under the Tamil Nadu Private Colleges' (Regulation) Act, 1976 and in particular, the learned counsel referred to S. 5 sub-sec. (3) which reads as follows :-"5. Grant of permission- (1) On receipt of an application under sub-sec. (1) of S. 4, the Government :-(a) may, after considering the particulars contained in such application, grant or refuse to grant the permission; and(b) shall communicate their decision to the applicant within such period as may be prescribed;Provided that the permission shall not be refused under this section unless the applicant has been given an opportunity of making his representations;Provided further that in case of refusal of the permission the applicant shall be entitled to the refund of one-half of the amount of the fee accompanying the application.(2) The decision of the Government under clause (a) sub-sec. (1) shall be final.(3) No University shall grant affiliation to any private college unless permission has been granted by the Government under sub-sec. (1)".and submitted that no University shall grant affiliation to any private college unless per- mission has been granted by the Government under sub-sec. (1). He also refers to sub- sec. (3) of S. 1 and submitted that the Tamil Nadu Private Colleges (Regulation) Act, 1976 applies to all private colleges. In answer to the said contention, learned senior counsel appearing for the petitioner submitted that the ,professional colleges are outside the purview of the Tamil Nadu Private Colleges (Regulation) Act, 1976. In support of this contention, the learned senior counsel relied on the judgment of a Division Bench of this Court reported in P. Kasilingam v. P.S.G. College of Technology, 1984 Lab IC 1134, wherein this Court has held as follows (at p. 1143):-"Let us first consider the submission of the learned counsel that the Act in terms is not applicable to professional colleges. It is therefore, necessary to consider some of the provisions relating to this contention. "Private Colleges;' is defined' in S.2(8) as meaning "a college maintained by an educational agency and approved by, or affiliated to a University but does not include a college -(a) established or administered or maintained by the Central Government or the Government or any local authority or any University; or(b) giving, providing or imparting religious instruction alone, but not any other instructions".Under the provisions of the Act read with the rules, these "Private Colleges" and educational agencies have to comply with and carry out the instructions, directions and orders issued by the "Director or his subordinate officers" from time to time on pain of withdrawal of the recognition and the grant. "Director" is defined as meaning Director of Collegiate Education. But so far as engineering and technological institutions are concerned, there is a different competent officer who is designated as Director of Technical Education and he is the authority competent to issue instructions, directions and orders and he is not one of those authorities who functions under the Private Colleges (Regulation) Act, 1976. The technical institutions do not function in this State under the Director of Collegiate Education. The teaching and non-teaching grants of the State Government for Engineering Colleges had all along been given under the Grant-in-Aid Code, subject to the directions and conditions mentioned therein and that had been the practice even after the College Act came into force in 1976. In fact, the Rules defined "college" also and that read as follows:-"College" means and includes Arts and Science College, Teachers Training College, Physical Education College, Oriental College, School or Institute of Social Work and Music College maintained by an educational agency and approved by, or affiliated to the University".This definition is consistent with the Act not being applicable to Engineering Colleges and technological institutions. It is true that the Rules could not restrict the application of the Act. But we are not reading the Rules as restricting the operation of the Act, but as an instance of how the authorities who are to enforce the provisions of the Act have understood and applied the provisions, keeping in view the intentions of the Legislature. All along the Central Government and the State Government were proceeding on the basis that the Act is not applicable to Engineering Colleges which are professional institutions.";