Madras High Court
National Engineering College vs All India Council For Technical ... on 18 March, 2025
W.A.No.1146 of 2016
and W.P.(MD) No.21453 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.01.2025
PRONOUNCED ON : 18.03.2025
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
W.A.No.1146 of 2016
and
W.P. (MD) No.21453 of 2023
W.A.No.1146 of 2016
National Engineering College
Rep.by its Chairman Mrs.K.R.Chennammal
K.R. Nagar, Kovilpatti,
Thoodhukudi District.
(Chairman of the appellant college is
substituted vide court order dated
22.08.2023 made in CMP (MD) No.
10831 of 2022 in W.A.No.1146 of 2016) ... Appellant / Petitioner in both
W.A No.1146 of 2016 and
W.P No.21453 of 2023
Vs
All India Council for Technical Education
Rep.by its Member Secretary
Nelson Mandela Marg, Vasat Kunj
New Delhi – 110 067. ... Respondent in both W.A No.1146
of 2016 and W.P No.21453 of 2023
Prayer in W.A.No.1146 of 2016 : Writ Appeal filed under Clause 15 of Letter
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W.A.No.1146 of 2016
and W.P.(MD) No.21453 of 2023
Patents Appeal to set aside the judgment dated 01.09.2016 made in W.P.No.
40899 of 2002.
Prayer in W.P.(MD) No.21453 of 2023 : Writ Petition filed under Article 226
of the Constitution of India praying for a Writ of Ceriorarified Mandamus
calling for the records relating to the All India Council for Technical
Education (Grant of Approval for Technical Institution) Regulations, 2020
F.No.AB/AICTE/REG/2020 dated 04.02.2020 issued by the Member -
Secretary of the AICTE and quash the same and further declare that the
Regulation No.4.1(b) of the All India Council for Technical Education (Grant
of Approval for Technical Institution) Regulations, 2020
F.No.AB/AICTE/REG/2020 dated 04.02.2020 is invalid, inoperative and
unenforceable in respect of the petitioner to function under the name and style
of “National Engineering College”.
In both W.A.No.1146 of 2016
and W.P (MD) No.21453 of 2023
For Appellant / Mr.A.L.Somayaji
Petitioner : Senior Counsel for
Mr.V.Perumal
For Respondent : Mr.N.Dilip Kumar
Standing Counsel or AICTE
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W.A.No.1146 of 2016
and W.P.(MD) No.21453 of 2023
COMMON JUDGMENT
[Judgment of the Court was made by RMT.TEEKAA RAMAN, J.]
By administrative order, the W.P (MD) No.21453 of 2023 is posted
alongwith Writ Appeal.
2. Counter has been filed in both the cases and common argument and
common judgment were rendered.
3. For the sake of convenience, the petitioner is referred to as
“Petitioner College”.
4. The brief factual matrix of the case that are required for the disposal
of this writ petition in netshell are as under -
4.1 The petitioner / Institution, namely, “National Engineering College”
was established by the National Educational and Charitable Trust, registered
under the Trust Registration Act, under Regn.No.180 of 1984. The
Government of Tamil Nadu, vide G.O.Ms.No.939 dated 20.07.1984, granted
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permission to the said Trust to start an Engineering College in the name and
style “National Engineering College” at Kovilpatti, under the Self Financing
Scheme in order to cater the needs of rural area people, from the academic
year 1984-1985 and thereafter, on 11.10.1984, the Madurai Kamarajar
University had granted affiliation as well as permission to start Under
Graduate Courses in Mechanical Engineering, Electronics and
Communication Engineering and Computer Science with an intake of 60
students in each discipline.
4.2 The College was started in the academic year 1984-1985 after
obtaining necessary permission / approval / affiliation. The Government, vide
Letter dated 04.08.1992, had granted three permissions to the petitioner
College to start Electrical and Electronics Engineering with an intake of 60
students and Electronics and Instrumentation Engineering with an intake of 30
students and the petitioner / College was affiliated upto the year 1992 with the
Madurai Kamaraj University.
4.3 In the interregnum, the All India Council for Technical Education
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[AICTE] Act, 1987 [Central Act 52 of 1987] came into force on 28.08.1988
vide G.O.Ms.No.317 [E] dated 26.03.1988.
4.4 The AICTE had also granted permission to the petitioner / College
on 19.08.1993 by approving the existing courses recognised by Madurai
Kamaraj University and the very same Council had accorded permission to
conduct two additional courses, viz., Electronics and Instrumentation
Engineering and Electrical and Electronics Engineering with an intake of 40
students in each discipline, after getting necessary permission / approval from
the Government of Tamil Nadu.
4.5 After the formation of Manonmaniyam Sundaranar University in
the year 1992, the said University has also granted affidavits for conducting
courses in the very name and style and it was also followed by an increase in
intake of students from 40 to 60 by AICTE for Electronics and
Instrumentation Engineering and Electrical and Electronics Engineering and
not stopping with that, the petitioner / Institution has started Master of
Computer Application [MCA] with an intake of 30 students and it was
increased from 30 to 60 from the academic year 1997- 1998 and the AICTE
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had accorded permission to do so and further, granted permission to start M.E.
[Computer Science and Engineering] with an intake of 25 students from the
academic year 2001-2002 and the Under Graduate Courses, viz., Information
and Technology Course with an intake of 60 students from the academic year
2009-2010.
4.6 It is the specific case of the petitioner that the College, viz., the
National Engineering College, is functioning from the academic year
1984-1985 onwards and after the introduction of the AICTE Act, the said
Body had also continued to grant permission/approval to the existing courses
and also permitted the Institution to start the Under Graduate Courses and
Post Graduate Courses in certain disciplines, having aware of the fact that it
uses the word “National”.
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5.1 As stated supra, the All India Council, after inspection by an expert
committee had granted approval vide communication dated 19.08.1993 to
National Engineering College. The approval granted by AICTE was
periodically renewed. On 04.08.1998, Manonmaniam Sundaranar University
also granted temporary affiliation for the year 1992-1993 for the above
Mechanical Engineering, Electronics and Communication Engineering and
Computer Science courses. The respondent issued paper advertisement
number AICTE/23/2002 dated 02.11.2002, which reads as follows :
"The use of word "Indian" and / or "National" and/or "All
India" and/or "All India Council" and/or "Commission" in any
part of the name any name of a Technical Institution and/o whose
abbreviated form leads to "IIN / "IT " / "IISC" / "IT" /" AICTE"/
"UGC" shall not be permitted. As institution which is already
functioning with the nam using the above words shall submit its
application change of name within one month from the date
publication of this notification for approval by Al failing which
AICTE may withdraw its approval".
5.2 Aggrieved by the paper advertisement, National Engineering
College filed W.P. No.40899 of 2002 before this Court and obtained an order
of interim stay of the impugned notification on 14.11.2002 in W.M.P. No.
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60569 of 2002. The interim stay was made absolute on 23.09.2003. However,
Writ Petition was dismissed on 01.09.2016.
6.1 The learned Single Judge of this Court, by an order dated
01.09.2016 in W.P.No.40899 of 2002 has observed as follows -
8. The primordial submission made by the learned Senior
Counsel appearing for the petitioner is that since there is no
express prohibition as to the use of the word “National” under the
Emblems and Names [Prevention of Improper Use] Act, 1950,
coupled with the fact that 12 the petitioner / Institution came to be
established prior to passing of the AICTE Act, it need not change
its name by deleting the word “National” and in support of the
same, has placed reliance upon the other decisions.
6.2 The learned Judge has further held as follows -
10. .....................Insofar as the interpretation given to
Clause No.7 of the Emblems and Names [Prevention of Improper
Use] Act, 1950, is concerned, it is to be stated that the impugned
Advertisement issued by the respondent / AICTE does not say
that in terms of the above said Act, there is a prohibition to use the
word “National”. But, placed reliance upon the All India Council
for Technical Education Approval Process Handbook, which is
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having a statutory backing.
6.3 The learned Judge has also held as follows-
13. It is not in serious dispute that the impugned
Advertisement came to be issued on the basis of the AICTE
Approval Process Handbook which is described as a legal
document under the AICTE Act, 1987 and in exercise of statutory
power only, the respondent has issued the impugned
Advertisement.
14. The respondent / AICTE, in terms of the Statutory
powers only has issued the impugned advertisement and
admittedly, the exercise of the said statutory powers have not been
put to challenge.
7. Aggrieved by the final order in W.P. No.40899 of 2016 dated
01.09.2016, the petitioner College filed W.A.No.1146 of 2016 and obtained an
order of Interim Stay on 15.09.2016 which was subsequently extended on
22.11.2016. Pending Writ Appeal, the interim order in in operation.
8.1 Thereafter, AICTE issued All India Council for Technical
Education (Grant of Approval for Technical Institutions) Regulations, 2020
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dated 04.02.2020 under sub section (1) of Section 23 read with Sections 10
and 11 of the AICTE Act and in supersession of the All India Council for
Technical Education (Grant of Approval for Technical Institutions)
Regulations, 2018 notified in the Gazette of India dated 31.12.2018. Under
said Regulations, Regulation No. 4 deal with the 'Generic Conditions for
Approval' which is extracted for the sake of convenience.
"4.1 a. The Applicants shall not name the Technical Institution in
such a way that the abbreviated form of the name of the Technical
Institution becomes IIM/ IIT/ IISc/ NIT/ AICTE/UGC/ MHRD/ Gol. The
Applicant shall also not use the word(s) Government/ India/Indian/
National/ All India/ All India Council/ Commission, anywhere in the name
of the Technical Institution and other names as prohibited under the
Emblems and Names (Prevention of Improper Use), Act, 1950. Provided
that the restrictions mentioned above shall not be applicable, if the Technical
Institution is established by Government of India or its name is approved by
the Government of India.
b. The Institutions which were already given approval with those
words shall be instructed to change/ drop the word from the Name of the
Institution, as the Stake holders may misinterpret them to be Government/
Government Aided Institutions. If any Institution (other than
Government/Government Aided) continue to use 'Indian', 'National', etc.
in the Name of the Institution, the Council shall remove such words while
issuing EoA.
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c. Applicants/ Institutions shall not use the names of the Existing
Institutions within the State."
8.2 Thus, the Petitioner College filed W.P. (MD) No. 21453 of 2023
challenging Clause 4(i)(b) of All India Council for Technical Education
(Grant of Approval for technical institutions) Regulations, 2020 dated
04.02.2020.
8.3 The said Regulations provides that a person who makes an
application to the All India Council for Technical Education (herein after
referred as AICTE) for seeking approval shall not name the Technical
Institution in such a way that the abbreviated form of the Technical Institution
becomes "IIM"/"IIT"/"IISC"/"NIT"/"AICTE"/"UGC"/"MHRD"/"Gol" and
shall not use the word(s) Government/India /Indian/National/All India/ All
India Council/Commission anywhere in the name of the Technical Institution
and other names as prohibited under the Emblems and Names (Prevention of
Improper Use), Act, 1950.
8.4 On perusal of the above said impugned notification (hereinafter
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referred to as notification), we find that sub clause (b) of Clause 4.1 specifies
that Institutions which are already given approval with those words shall be
instructed to change/drop the words from the name of the institution as the
stake holders misinterpret may them to be Government/Government Aided
Institutions. It further states that if any institution other than
Government/Government aided continues to use Indian, National etc. in the
name of the Institution, the AICTE shall remove such words while issuing the
extension of approval for the conduct of the technical programs in the
institution.
9. The said writ petition has been filed challenging the advertisement
No.AICTE 23 of 2002 in the Hindu dated 02.11.2002 issued by the Member
Secretary of AICTE and to quash the same. The said writ petition was
dismissed. Against the said order of dismissal, Writ Appeal has been filed
and interim order was granted in CMP No.14793 of 2016. We are also
keeping in mind the findings rendered by the learned Single Judge for
rejection of the W.P.No.40899 of 2002, as extracted supra, in respect of the
Writ Appeal.
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10. The present writ petition is filed challenging the said notification
itself and hence the decision in the Writ Petition No.21453 of 2023 will
govern the lis in the writ appeal.
11. Mr.A.L.Somayaji, learned Senior Counsel appearing for the
appellant/petitioner College would contend that (a) the respondent AICTE
has no power or jurisdiction to prohibit the word “National” and competency
to frame the regulation prohibiting the use of the above mentioned name,
more so, with “retrospective effect” and further contended that (b) powers of
the respondent are dealt with Section 12, 22 and 23 of AICTE Regulations
and also relied upon the judgment of the Hon'ble Division Bench of Kerala
High Court reported in the case of Sujith Kumar and another vs. Vinodh and
8 others in OP (KAT) No.542 & 543 of 2019 dated 09.12.2019, as confirmed
by Hon'ble Supreme Court in SLP No.C 11399 to 011402 of 2021 dated
04.08.2021 and (c) further relied upon the judgments reported in 2020 (1)
MHLJ 74, AIR 2007 Bombay 184 and AIR 2016 Raj 62 and also (d)
produced a typedset that the colleges and institutions that are using the word
“National”and the respondent AICTE which has approved the above said use
of the word “National” in other incidental cases, as mentioned in the typedset
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and also the various private institutions which are using the word “National”
and accreditation of the respondent's council.
12. Per contra, Mr.N.Dilip Kumar, learned Standing Counsel appearing
for the respondent would contend that (a) AICTE has powers to make the rule
with regard to Section23 of the Act retrospectively and (b) it has got
competency to frame regulations and emphasized upon Section 10(k) that
AICTE only has power to grant approval and also draw our attention to
Section 23, read in consonance with Section 10(k) sub clause (m) (r) (v) and
would contend repelling the contention of the learned Senior Counsel for the
appellant/petitioner College.
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13. On the point of “retrospectivity”, we also heard the learned
Standing Counsel for the respondent who contended that the use of the word
"National" is clearly prohibited under clause 7 of the schedule to the Emblems
Act unless approved by the Central Government. Regulation 4.1.b. put to
challenge herein is in line with the Emblems Act. Evidently, according to the
Emblems Act, as well as the Grant of Approvals Regulations, the competent
authority to vest a right with any institution / body to use the word 'National'
is the Central Government. The Petitioner institution has not produced
anything to show that they have such authorization from the Central
Government to show that they have a right to use the name.
14. Heard both. Perused voluminous of typed set filed by both sides.
15.1 The sum and substance of submission of the standing counsel for
the respondent counsel is that the advertisement and the provision only require
the Petitioner to change their name with effect from the date of its introduction
and not, since its inception. It is settled that when a statute operates in the
future, it cannot be said to be retrospective operation. Reliance is placed on
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the judgment in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil &
ors, reported in AIR 1966 SC 1758 wherein it has been held as follows:
"9. In this connection it is relevant to distinguish between an existing
right and a vested right. Where a statute operates in future it cannot be
said to be retrospective merely because within the sweep of its operation
all existing rights are included. As observed by Buckley, L.J. in West v.
Gwynne"
15.2 The Standing Counsel for the respondent AICTE Council would
submit that in light of the above mentioned facts and circumstances, the
Regulation has not been enacted retrospectively.
15.3 It is the specific contention of the Standing Counsel for the
respondent that the Approval Process Handbook has a “statutory backing” and
would place reliance upon Section 23 of the AICTE Act and developed his
argument by submitting that the expansive powers granted to the AICTE under
Section 23 of the AICTE Act allow for the formulation of regulations that
align with the objectives of the Act, provided they do not contradict its
provisions. Despite arguments to the contrary, the Council's regulatory
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capabilities extend beyond merely granting approvals for new institutions.
15.4 The Standing Counsel for the respondent further vehemently
submitted that the harmonious reading of Sections 10 and 23 underscores the
Council's authority to implement rules that foster both the development and
regulation of technical education. The “Approval Process Handbook”, with its
statutory backing, further reinforces the mandatory nature of compliance for
institutions. Thus, while the regulation's retrospective application must be
judiciously assessed, the Council's directive to modify future actions remains
within its legitimate purview.
15.5 The last limb of argument of the learned Standing Counsel is that
the regulations were not laid before the Parliament, as required under Section
24 of AICTE Act, however does not undermine the Council's authority.
16. Mr.A.L.Somayaji, learned Senior Counsel for the
appellant/petitioner college relied upon the following judgments touching
upon the point of word “National” as used in the Emblem Act -
(i) South India Textiles & Ors. Vs. Government of
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Andhra Pradesh & Ors. reported in AIR 1989 AP 555
(ii) Goenkarancho Ekvot Vs. Union of India & Ors.
reported in AIR 2007 Bombay 184.
(iii) Thomad Luke Vs. The Registrar of Firms in WP (C)
(iv) Bharat Chamber Vs. The General Manager,
District Industries Center reported in 2012 (6) CTC 453
(v) Kerala Corrugated Box Vs. The District Registrar
(General) in W.P. (C) No.10976 of 2014 (V)
(vi) Shri Ragunath International School Vs. State of
Rajasthan reported in 2014 (3) WLN 545 (Raj)
(vii) New India Public School Scoiety and Ors. Vs. State
of Rajasthan reported in 2015 (3) WLN 1 (Raj)
(viii) Rajasthan Public School Samiti and Ors. Vs. State
of Rajasthan reported in 2015 SCC Online Raj 8786
(ix) Kerala Ju-Jitsu Association Vs. The District Registrar
(General) reported in WP (C) No.323 of 2016 (M)
(x) Geeta Rani Vs. Union of India & Ors. reported in
2019 (2) CWC 6
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17. On the point of “retrospective operation” or “prospective
operation”, Mr.A.L.Somayaji, learned Senior Counsel for petitioner College
relied upon the following judgments -
(i) The Co-operative Central Bank Ltd. & Ors. Vs. The
Additional Industrial Tribunal, Andhra Pradesh & Ors. reported
in 1969 (2) SCC 43
(ii) Mahabir Vegetable Oils (P) Ltd. Vs. State of Haryana reported
in 2006 (3) SCC 620
(iii)T.Kaliamurthi & Anr. Vs. Five Gori Thaikkal Wakf & Ors.
reported in 2008 (9) SCC 306
(iv) Shree Sidhabali Steels Ltd. & Ors. Vs. State of Uttar Pradesh
& Ors. reported in 2011 (3) SCC 193
(v) Federation of Indian Minerals Industries & Ors. Vs. Union of India
& Anr. reported in 2017 (16) SCC 186
(vi) Ram Chandra Prasad Singh Vs. Sharad Yadav reported in
2020 SCC Online SC 821
(vii) Union of India & Ors. Vs. G.S. Chatha Rice Mills & Anr.
reported in 2021 (2) SCC 209
(viii) Assistant Exercise Commissioner Kottayam & Ors. Vs.
Esthappan Cherian & Anr. Reported in 2021 (10) SCC 210
(ix) Pharmacy Council of India Vs. Rajeev College of Pharmacy
& Ors. Reported in 2023(3) SCC 502
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(x) Dr.J.J.Magdum College of Engineering Vs. AICTRE & Ors.
reported in 2020 (1) Mh.L.J.74
(xi) Sujith Kumar K.V. & Ors. V. Vinod M.S. & Ors. reported in
(x) Vijeesh V & Ors. V. The State of Kerala & Ors. reported in
SLP (Civil) Diary No.28477 of 2020
and also relied upon for the preposition that AICTE Regulation should be
placed before the Parliament as reported in 2013 (8) SCC 271 [Association of
Management of Private Colleges v. All India Council for Technical
Education & Ors. to the point that every judgment must be read as applicable
to the particular facts proved or assumed to be proved.
18. Mr.N.Dilip Kumar, learned Standing Counsel draw our attention to
the object and reasons of All India Council for Technical Education Act, 1987
and also The Emblems and Names (Prevention of Improper Use) Act, 1950
and the definition for the word “suggests”.
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19. Rival submissions made by the learned Senior Counsel for the
petitioner and Standing Counsel for the respondent are kept in mind and the
decisions referred thereto are perused.
20. The present Writ Petition (MD) No.21453 of 2023 is filed seeking
for a declaration to declare the Regulation No.4.1(b) of the All India Council
for Technical Education (Grant of Approval for Technical Institution)
Regulations, 2020 F.No.AB/AICTE/REG/2020 dated 04.02.2020 as invalid,
not binding upon the existing institution and direct the respondent to permit
the petitioner to function in the name and style of “National Engineering
College” as it being stood.
21. Counter has filed by the respondent. Based upon the counter,
Standing Counsel for the respondent made submissions as extracted supra.
Defending the notification, the crux of the respondent stand, as submitted by
Standing Counsel is that the word 'National' in the name of the petitioner self-
financing private engineering technical institution, as a prefix or suffix, will
lead to misconception in the minds of the common public as if it is sponsored
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or run by the Central Government of India. He further submitted that the said
regulation is introduced only to prevent the dubious naming of the institutions
and to avoid the misconception in the minds of the students, parents and the
public at large. The respondent AICTE, being a statutory body empowered to
control and regulate the growth of technical education and institutions is
empowered to issue the impugned regulations.
21.2 In reply, the learned Standing Counsel further submitted that the
respondent AICTE is the institution set up by the Act of Parliament under
Entry 66 of List – I Schedule VII relating to institution of higher
learning and the parliament has empowered such a body to coordinate and set
standards for all technical institution in India and therefore with such capacity,
the impugned notification has been issued. He further contended that the
impugned notification and regulations are framed only in the large interest of
the public so that the said prefix will not lead to confusion for a common man
to identify whether these institutions are set up by the Government.
21.3 Rejoinder has been filed by the petitioner college wherein it is
stated that the principles of eye of common man or Doctrine of consumer eye
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has been derived from the trademark and patents and people have identified
the institution as private institution for more than 4 decades (40 years) and it is
one of the primary institution which is the first self-financing institution
started in Tamil Nadu before 39 years and hence such a contention is fair
fetched and the same is only a sweeping statement and besides draw our
attention to the list of cases annexed in the typed set numbering 99 cases
where Colleges, Schools and Polytechnic Educational Institutions having
their names either prefixed or suffixed with word “National”.
22. After taking into consideration the rival submissions and
contentions raised in the counter and the rejoinder filed by the petitioner
college and typedset of papers including list of colleges having prefix
“National”and list of educational institution having “National” and various
other institutions which was approved by AICTE, this Court finds that
following question of law arises in the Writ Appeal -
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(i) Whether AICTE has got the power and jurisdiction to
prohibit the use of words "Indian" and / or "National" and/or
"All India" and/or "All India Council" and/or "Commission" in
any part of the name of a Technical Institution and/or any
name whose abbreviated form leads to
"IIM" /"IIT"/"IISC"/"IIIT"/"AICTE"/"UGC" in any part of the
name of the Technical Institution.
(ii) If, so, assuming such power exists, whether AICTE
has got the competence to frame the regulations prohibiting
the use of the above mentioned names with retrospective
effect?
23.1 After perusal of the contents in the AICTE Act, as interpreted by
the Hon'ble Supreme Court in the above cited decisions, we find that Section
10 of the Act deals with powers and functions of the Council. It provides that
it shall be the duty of the Council to take all such steps as it may think fit for
ensuring coordinated and integrated development of technical education and
the maintenance of standards and for the purpose of performing its functions,
the Council, may inter-alia grant approval for starting new technical
institutions and for introduction of new courses and programs in consultation
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with the agencies concerned and also set up a National Board of accreditation
to periodically conduct evaluation of technical education or programs on the
basis of guidelines, norms and standards as specified by it and to make
recommendation to the council or university grants commission or other
bodies regarding recognition or de-recognition of the institute programs.
23.2 On perusal of Section 12 & 22 of the Act, we find that the power
of the Central Government to make rules by notification in the official gazette
to carry out the said purpose of the Act has been incorporated. Since there is a
specific challenge and reference to Section 23 of the Act, the same is extracted
for the sake of continuity.
Section 23 empowers the council to make regulations not
inconsistent with the provisions of the Act and rules to carry out
the purpose of the Act and such regulations are to be published in
the official gazette. In order to appreciate the issue involved, it is
necessary to set out the provisions of sub Section 2 of Section 23;
(2) In particular, and without prejudice to the generality
of the foregoing power, such regulations may provide for all or
any of the following matters, namely:-
(a) Regulating the meetings of the Council and the
procedure for conducting business thereat;
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(b) The terms and conditions of service of the officers
and employees of the Council;
(c) Regulating the meetings of the Executive Committee
and the procedure for conducting business thereat;
(d) The area of concern, the constitution, and powers
and functions of the Board of Studies;
(e) The region for which the Regional Committee be
established and the constitution and functions of such
Committee.
23.3 A careful reading of Section 23, in particular, Sub Section 2
would reveal that the power to frame regulations would not embrace or in
encompass within its preview as to the words to be used in the name of the
technical institution as also the words not to be used in the names of the
technical institution, assumes significance.
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23.4 A reading of the provisions of the Act, would also disclose that no
such power is vested in the respondent council as to what words are to be used
by the technical institution in its name. Consequently, the council lacks
competence and power to take any decision or to make regulation as to what
words are to be used in the name of the technical institutions. Hence, we find
that the respondent council lacks competence and power to take decision and
also no specific power has been pointed out by AICTE in its counter affidavit
or in the course of arguments as to the powers of the council to take policy
decisions or make regulations in this regard.
24.1 The second question of law is that whether the respondent has
got any power and competency to frame the regulations with retrospective
effect.
24.2 It is admitted case of the respondent council that the power to
frame regulations in exercise of power under Section 23 is in the nature of
subordinate legislation. Therefore, it is necessary to examine whether in
exercise of power to make regulations, which is subordinate legislation in
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character, the council can make regulations which are retrospective in
character in the sense that it applies to all the institutions which are in
existence prior to the framing of 2020 Regulations.
24.3 At this juncture, it is relevant to refer to the decision of the
Hon'ble Apex Court in the case of UNION OF INDIA AND OTHERS
VERSUS G.S. CHATHA RICE MILLS AND ANOTHER, reported in 2021
(2) SCC 209, wherein the Apex Court, after referring to the decision in the
case of Hukam Chand versus Union of India, reported in (1972) 2 SCC 601,
Regional Transport Officer Versus Associated Transport Madras (P) Ltd,
reported in (1980) 4 SCC 597 1981 SCC (Tax) 9) and Federation of India
Mineral Industries versus Union of India, reported in (2017) 16 SCC 186
has summed up the legal position to the effect that the Central Government or
the State Government cannot make subordinate legislature having
retrospective effect unless the parent statute explicitly or by necessary
implication authorizes it to do so and that delegated legislation is ordinarily
prospective in nature and the right or liability created for the first time cannot
be given retrospective effect.
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24.4 In the above said decision, at Para 8, the Hon'ble Supreme Court
has extensively dealt with rule making power and empowerment of Central
Government with regard to subordinate legislation. The relevant portion that
are applicable to the question in hand is extracted as under -
8. The extent and amplitude of the rule-making power would
depend upon and be governed by the language of the section. If a
particular rule were not to fall within the ambit and purview of the
section, the Central Government in such an event would have no power to
make that rule. Likewise, if there was nothing in the language of Section
40 to empower the Central Government either expressly or by necessary
implication, to make rule retroactively, the Central Government would be
acting in excess of its power if it gave retrospective effect to any rule. The
underlying principle is that unlike Sovereign Legislature which has power
to enact laws with retrospective operation, authority vested with the
power of making subordinate legislation has to act within the limits of its
power and cannot transgress the same. The initial difference between
subordinate legislation and the statute laws lies in the fact that a
subordinate law-making body is bound by the terms of its delegated or
derived authority and that court of law, as a general rule, will not give
effect to the rules, thus made, unless satisfied that all the conditions
precedent to the validity of the rules have been fulfilled....
24.5 At Para 105.2, sub-clause 2, the Hon'ble Apex Court has held as
follows -
105.2 The Court held that the fact that the rules had been
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framed in pursuance of a resolution passed by the legislature or that
they have to be placed on the table of the legislative body would not
lead to an inference that the legislature had authorised the framing of
subordinate legislation with retrospective effect: (Associated Transport
Madras case [Regional Transport Officer v. Associated Transport
Madras (P) Ltd., (1980) 4 SCC 597: 1981 SCC (Tax) 9), SCC p. 599
4.......The mere fact that the rules framed had to be
placed on the table of the legislature was not enough, in
the absence of a wider power in the section, to enable the
State Government to make retrospective rules. The whole
purpose of laying on the table of the legislature the rules
framed by the State Government is different and the effect
of any one of the three alternative modes of so placing the
rules has been explained by this Court in Hukam Chand v.
Union of India [Hukam Chand v. Union of India, (1972) 2
SCC 601].
24.6 At para 106, the Hon'ble Apex court has held as follows -
106. In Federation of Indian Mineral Industries v.
Union of India [Federation of Indian Mineral Industries v.
Union of India, (2017) 16 SCC 186], a three-Judge Bench of
this Court formulated the principles on the subject. Madan B.
Lokur, J. observed that the power to frame subordinate
legislation is not retrospective unless it is authorised expressly
or by necessary implication by the parent statute.
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25.1 It remains to be stated that in the above said decision, various
points have been decided by the Hon'ble Supreme Court to the extent that the
Central Government or the State Government (or any other authority) cannot
make a subordinate legislation having retrospective effect unless the parent
statute, expressly or by necessary implication, authorises it to do so.
Delegated legislation is ordinarily prospective in nature and a right or a
liability created for the first time cannot be given retrospective effect. [Panchi
Devi v. State of Rajasthan, (2009) 2 SCC 589: (2009) 1 SCC (L&S) 408.
25.2 The above said decision has been approved on similar lines in
State of Rajastan Vs. Basant Agrotech India Ltd., reported in 2013 (15)
SCC 1 and keeping in mind the above provisions, as enunciated by the
Hon'ble Supreme Court with regard to whether a particular regulation a
subordinate legislation and empowered to act retrospectively for the same
competency of the parent legislation has to be looked into. The said
preposition is kept in mind.
26.1 Coming to the impugned notification, it is the specific stand of the
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Standing Counsel for the respondent that they have power under Section 23.
The said Section 23 is extracted supra. Thus, the scope of lis is now narrated
down, as discussed infra. Thus, it becomes necessary to examine the
provisions of Section 23 in light of other provisions of the Act. Whether there
is express power entrusted to AICTE to make subordinate legislature having
retrospective effect or even in the absence of such a provision, the parent Act
by necessary implication authorities the subordinate authority to make
legislation with retrospective effect.
26.2(a) Obviously there is no express provision in Section 23 to make
regulation with “retrospective effect” which is only a subordinate legislation.
26.2(b) A reading of the provisions of the Act reveals that a primordial
obligation on the part of the council is to have a proper planning and
coordinated development of education system throughout the country, the
promotion qualitative improvement of such education in relation to planned
quantitative growth and the regulation and proper maintenance of norms and
standards in technical education system. It is for this purpose the council has
been established under Section 3 of the Act.
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26.3 The functions of the council are enumerated which do not imply
any power given to the council to frame regulations “retrospectively”. On the
contrary, Section 10(K) provides for grant of approval for starting new
technical ES institutions or for starting new courses or programs. Therefore
this Court is clear that there is no power vested with the council to frame
regulations with retrospective effect.
26.4 The impugned regulation 4(1)(b) in so far as it applies to change
of name containing the words stipulated therein to existing technical
institutions with the threat of removal of such words by council of existing
technical institutions fails to drop the words enumerated in 4(1)(a) from the
names of the technical institution is clearly without any authority or power. In
that the regulations are made applicable retrospectively to the technical
institutions which has come into existence before the coming into force the
Act or the regulations. Thus, we find that AICTE lacks competency to make
to make regulation with retrospective effect.
27.1 On a combind reading of regulation 4.1.a. And 4.1.b, we find
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that they are compliment to each other dealing with different situation.
27.2 We like to refer to the Division Bench of Kerala High Court in
the case of Sujith Kumar and Anr. Vs.Vinodh and 8 Ors. including the All
India Council for Technical Education in OP (Kat) No.542 & 543 of 2019
vide order dated 09.12.2019 wherein it has been held that the following twin
conditions are to be satisfied to make a subordinate legislation and to give
retrospective effect viz.
(i) That the parent statute must authorize the delegate to
frame subordinate legislation with retrospective effect.
(ii) The subordinate legislation must itself declare that
the same will have retrospective effect.
28.1 In that case, the Division Bench of Kerala High Court was
considering the issues of whether the stipulation in the 2019 Regulations
which were brought into force only on 01.03.2019 can have any retrospective
operation. In other words, the question is whether the stipulations in those
Regulations can apply to vacancies of lecturers which arose prior to
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01.03.2019.
28.2 The Divisoin Bench of Kerala High Court has held that
subordinate legislation cannot have any retrospective operation unless two
conditions are satisfied. The 1st condition is that the 'parent statute must
authorise' the delegate to frame subordinate legislation with 'retrospective
effect'. The 2nd condition is that the subordinate legislation 'must itself
declare' that the same will have 'retrospective effect'.
29. In Mahabir Vegetable Oils (P) Ltd. v. State of Haryana reported
in (2006) 3 SCC 620 it was held as follows -
"41. We may at this stage consider the effect of omission of the said
note. It is beyond any cavil that a subordinate legislation can be given a
retrospective effect and retroactive operation, if any power in this behalf is
contained in the main Act. The rule-making power is a species of delegated
legislation. A delegatee therefore can make rules only within the four
corners thereof.
42. It is a fundamental rule of law that no statute shall be
construed to have a retrospective operation unless such a construction
appears very clearly in the terms of the Act, or arises by necessary and
distinct implication. (See West v. Gwynne [(1911) 2 Ch 1: 104 LT 759
(CA)))" The conditions noticed above are to be cumulatively satisfied if we
are to hold that the 2019 regulations have retrospective operation. No
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provision has been pointed out from the AICTE Act to suggest that the
AICTE could frame regulations with retrospective effect. The regulations
themselves do not declare that they are retrospective in operation. We
therefore, have no hesitation to hold that all vacancies of lecturers in
polytechnics which arose prior to 01.03.2019 can be filled up without
reference to the 2019 regulations.
and accordingly, we find that the above twin conditions are to be cumulatively
satisfied in order to make AICTE regulations with retrospective effect. The
Kerala High Court has held that no provision has been pointed out in the
AICTE Act to suggest that AICTE regulations will have retrospective effect.
30. It remains to be stated that the said decision was rendered by the
Division Bench of Kerala High Court while dealing with the case of
regulation relating to filling up of vacancies of lecturers in polytechnic
colleges prior to 01.03.2019 i.e., prior to the framing of regulation and the
very same regulation has been considered and the competency has been
considered by the Division Bench and the Division Bench of the Kerala High
Court has held that in the absence of any provision in AICTE Act to suggest
that AICTE Regulations will have retrospective effect, has struck down the
filling up of vacancies in the new regulation.
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31. As against the above said order, it appears that the State of Kerala
has filed SLP No.011399 to 011402 of 2021 and the same was dismised by the
Hon'ble Supreme Court on 04.08.2021 and hence we concur with such view of
the Division Bench judgment of the Hon'ble Kerala High Court which has
been confirmed by the Hon'ble Supreme Court. We do not find any other
provisions to make a different diverge view with that of the Division Bench
judgment. Accordingly, we have no hesitation to come to the conclusion that
AICTE has no powers to make regulation with retrospective effect.
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32.1 The learned Single Judge, while deciding W.P.No.40899 of 2022
(W.A.No.1146 of 2006) has observed at Para 10 of the judgment that All
India Council for Technical Approval Process Handbook is having a “statutory
backing”.
32.2 We called upon both the learned Senior Counsel for the petitioner
College and the Standing Counsel for the respective parties to address on the
issue.
33. As observed by the learned Single Judge at Para 13 of the
impugned judgment in Writ Appeal, it is not in serious dispute that the
impugned advertisement came to be issued on the basis of the AICTE
Approval Process Handbook which is described as a legal document under the
AICTE Act, 1987 and in exercise of statutory power only, the respondent has
issued the impugned advertisement. So is the finding of the learned Single
Judge which is subjected to challenge in the Writ Appeal.
34. We have perused the impugned order passed by the learned Single
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Judge and also the AICTE Approval Process Handbook.
35.1 At the outset, we would like to express that such a finding is
legally unsustainable “to the limited extent of retrospectivity in operation” and
we put a question to the Standing Counsel for the respondent under what
provision of law such an Approval Process Handbook was issued and further
when there is no provision in the Act for issuance of Approval Process
Handbook. The learned Senior Counsel for the petitioner would contend that
in the absence of any provisions, such Handbook can only be treated as an
Administrative instruction and the same cannot be assigned as a statutory
power nor in exercise taken thereof. In the absence of any provisions in the
Act for issuance of Approval Process Handbook. It can be only treated as set
of guidelines for authorities to consider in the matter of issuance of approval
for new institutions and at no stretch of imagination, the Approval Process
handbook can be equated to the regulations framed under Section 23 of the
Act.
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35.2 In this regard, we are fortified by the Division Bench Judgment of
the Bombay High Court in the case of DR. J. J. MAGDUM COLLEGE OF
ENGINEERING VERSUS AICTE & OTHERS, reported in 2020 1 MHLJ
74. In that case, the Engineering College, which was the Writ Petitioner,
secured approval for starting the College in the year 1992 when the Act was
holding the field. The council increased the land requirement norm to 25 acres
which according to the council, the Engineering College failed to fulfill.
35.3 The Hon'ble High Court, while considering the above question,
held in Para 49 that the approval process handbook guidelines are only
prospective and they effect the existing institution only to the extent of the
new courses the institution may apply for and nothing beyond.
35.4 Consequently, this court find that Clause 2.6 of the approval of
process of Handbook shall be applicable only to new institutions set up. The
Approval of process of handbook will only apply to colleges that seek
approval from the Respondent, but not the institutions such as the Writ
Appellant/Petitioner, which have already obtained its approval as early as
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1984.
36. As we find that the reasoning of the Division Bench of Bombay
High Court in the above said case is squarely applicable to the facts and
circumstances of this case, we have no hesitation to hold that the finding
rendered by the learned Single Judge in this regard is unsustainable in law and
hence the said finding hereby stands vacated.
37. The next contention is with regard to The Emblem Names
(Prevention of Improper Use) Act, 1950. The Act prohibits the improper use
of certain emblems or names, specified in the schedule without the previous
permission of the Central Government or such officer of the Government as
may be authorized. The Schedule to the Act contains the names and
emblems. For the purpose of the present case, what is necessary is to refer to
Clause 7 of Schedule which runs as follows:
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7. Any name, which may suggest or be calculated to suggest -
(i) the patronage of the Government of India or the Government of a State; or
(ii) connection with any Local Authority or any Corporation or body constituted
by the Government under any law for the time being in force".
38. Rival submissions in this point as extracted supra are kept in
mind.
39. After perusing the various judgments as relied upon by the learned
counsel for the petitioner on the above score in (i) South India Textiles &
Ors. Vs. Government of Andhra Pradesh & Ors. reported in AIR 1989 AP
555; (ii) Goenkarancho Ekvot Vs. Union of India & Ors. reported in AIR
2007 Bombay 184; (iii) Thomad Luke Vs. The Registrar of Firms in WP (C)
No.21435 of 2007 (B); (iv) Bharat Chamber Vs. The General Manager,
District Industries Center reported in 2012 (6) CTC 453; (v) Kerala
Corrugated Box Vs. The District Registrar (General) in W.P. (C) No.10976
of 2014 (V); (vi) Shri Ragunath International School Vs. State of
Rajasthan reported in 2014 (3) WLN 545 (Raj) and(vii) New India Public
School Society and Ors. Vs. State of Rajasthan reported in 2015 (3) WLN 1
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(Raj), we find that the word "National" which is found in the name of the
Petitioner's institution is not mentioned in the schedule. Further, the
provisions of the Act do not impose a total prohibition from the use of the
word "National". It only prohibits improper use of the words mentioned in the
Schedule. The Schedule does not specifically contain the word "National".
40. Furthermore, it is apt to refer to the decision of the Bombay High
Court in GOENKARANCHO EKVAT VERSUS UNION OF INDIA &
ORS. reported in AIR 2007 BOMBAY 184. Para 8 of the Judgment is
extracted below.
"8. The cumulative reading of the above provisions shows that a
person is prohibited from using in his trade activity any name or emblem
specified in the schedule. Clause 4 of the schedule contemplates that
name, emblem or official seal of the Government of India or of any State
or any name which may suggest patronage of the Government of India or
the State Government cannot be used by a person. Name of a place, thus,
is not even mentioned in the schedule. It is the name, emblem or seal of
Government of any State which cannot be used by any person in his trade
activity. This is permissible, provided previous permission of the
Government or such officers specified by the Government is taken by the
person concerned."
41. Admittedly, in the instant case, neither in the counter, nor during
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the argument, the respondent has made any allegations that the petitioner /
appellant had improperly used the word “National”. With regard to the
applicability of the word “National” in respect of educational institution, the
Division Bench of Rajasthan High Court (Jaipur Bench) in New Indian
Public School Society & Ors. v. State of Rajasthan & Ors. reported in AIR
2016 Raj 62 has dealt with the question as to whether the word “Indian” in
the name or School or College is in contravention to Section 3 of the Emblems
Act. The operative portion of the judgment is as follows:
8. A conjoint reading of Section 3 of the Act of 1950 and Entry
No. 7 to the Schedule appended thereto indicates that what is prohibited
is not the use of a name but its improper use which is suggestive or
calculated to suggest the patronage of the Government of India or the
State Government. For a contravention of the Act of 1950 therefor what
is the essential is that any word utilized by an entity or organization
incorporating it in its name, is suggestive of or intended to suggest or
reflect the patronage of the Government of India rendering it improper.
Central to a contravention of the Act of 1950 therefore is the improper
use of a word-relating the user to the Government of India or the
Government of State. In the circumstances of the case, a bare look at
the name of the petitioner-Society and all the schools and colleges run
by it would indicate that the word "Indian" is merely a part of the whole
name of the colleges/schools incorporating prefixes and suffixes as have
been detailed herein above. The word "Indian" used in the name of the
schools/colleges is not stand alone and is preceded and followed by
other words with the consequence that the name taken as a whole is not
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even remotely suggestive or calculated to suggest that it has the backing
or support or patronage of the Government of India. In fact this is not
even the allegation. What is however asserted without any foundation is
that the mere use of the word "Indian" in any name of a school or
college is sufficient to mislead the "unsuspecting and gullible" students
and the parents. That to my mind is a very patronizing view of the
respondents verging on an insult to national intelligence and
awareness. The basis of this conclusion appears to be ipse dixit of the
respondents without being based on any objective material. It has not
been submitted that even a single complaint has been received from any
member of the allegedly "unsuspecting and gullible consumers" Le. the
students in the various institutions of the petitioner-Society and/or their
parents.
9. ................................ I am of the considered view that Section
3 of the Act of 1950 does not absolutely prohibit the use of any word
even if it be "Indian/National/Bharat" in conjunction with other words
to express the name and style of a business/trade/vocation. It is only
when it can be established in a given case that the name is being
improperly used, is calculated to suggest by itself Government
patronage, support or approval, it would stand prohibited under Section
3 of the Act of 1950 read with Entry No. 7 of the Schedule appended
thereto. In the facts of the case as detailed herein above, to my mind,
neither the name of the petitioner-Society, nor its schools and colleges
where the word "Indian" is merely a part of the whole name, can even
remotely be construed as an attempt to reflect the patronage or support
or approval of the Government of India in running of the schools and
colleges. As stated herein above, there can be no presumption as sought
to be drawn under the impugned order dated 03.07.2013 with regard to
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improper use of a name."
42.1 After perusing the above said decision, we find that in order to
make a contravention as defined in the above said Act, what is essential is
any word utilised by the School, there must be a suggestive or intend to
suggest or reflect patronage of the Government of India empower, in other
words, the petitioner has improperly used the word “National”. The above
said any one of the three conditions has to be satisfied.
42.2 The respondent, in his counter has stick on to the word
“suggestive” and relied upon the judgment rendered by the Division Bench of
this Court in another case.
42.3 After perusing the above provisions and in the absence of any
compliant from any student, college or parents that they have been misguided
by the word unsuspecting or gullible consumers against the petitioner's
college, we find that the prohibition which is let in Section 3 of the Act 1950,
a National has to be read with in conjunction with the other words. Here, in
the instant case, word “National” is merely a part of the whole name, cannot
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even remotely be construed as an attempt to reflect the patronage or support or
approval of the Government of India in running of the schools and colleges.
Hence, no presumption can be drawn under the impugned order with regard
to improper use of the name.
43.1 It is needless to state that every judgment must be read as
applicable to a particular facts proved or assumed to be proved. In this
connection, we also took note of the typedset of papers filed by the petitioner
to show that the AICTE has approved National Institute of Securities Market,
MAA Buddha National Institute of Engineering and Technology and NIT
Polytechnic (all are private and self financing institutions) to use the word
“National” as prefix or “as a part of its name”.
43.2 The University Grants Commission (UGC) has also approved
National College of Pharmacy to use the word “National”. The University
Grants Commission has approved the following Private Institutions to use the
word “National”.
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(i) National Degree College
(ii) Sri Sai Baba National Degree College
(iii)Bhagalpur National College
(iv) Gurunayak National College
(v) Govind National College
(vi) Guru Tegh Bahadur National College
(vii) National College for Women
(viii) I.G. National College
(ix) Maharana Pratap National College
(x) National Evening College of Commerce
(xi) National Institute of Engineering,
(xii)K.P. National College of Arts & Science and
(xiii) N.K.T. National College of Education for women
44. We have also taken note of the ranking of the petitioner institution
by various competent authorities, as stated in the affidavits which goes to
show that the petitioner is running the College in the same name for long 40
years namely 4 decades and various records enclosed in the affidavit and
typedset of papers goes to show that if at this juncture, i.e. after 40 years, they
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are made to delete the name “National”, it would cause prejudice for various
reasons, as mentioned in the affidavits, found to have force.
45. In fine -
(a) the finding of the learned Single Judge in the judgment under
challenge in W.A.No.1146 of 2016 that AICTE “Approval Process
Handbook” is having statutory force to act retrospectively hereby stands
vacated and the conditions prescribed under the “Approval Process
Handbook” with regard to prohibition to use the word “National” does not
have any statutory force for its retrospective action.
(b) We are in agreement with the view expressed by the Division
Bench of Kerala High Court with regard to the very same question of law
decided in respect of the very same regulation, i.e. AICTE Regulations, that it
has no power to make regulations retrospectively which was upheld by the
Hon'ble Supreme Court on 04.08.2021, as extracted supra.
(c) We are also in agreement with the view of the Division Bench
judgment of the Bombay High Court with regard to retrospectivity in AICTE
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Approval Process Handbook does not have any statutory backing for
retrospectivity.
(d) We are also in agreement with the view of Division Bench of
Bombay High Court with regard to use of the word “National” and also
(e) with regard to use of the word “National” at the educational
institutions with the Division Bench of Rajasthan High Court, as extracted
supra. Hence, both the questions of law as formulated in the preceding
paragraphs are held against the respondent AICTE and in favour of the
petitioner College.
46. Accordingly, this Writ Petition No.21543 of 2023 is allowed and
the notification is held to be invalid and the regulation to be invalid in respect
of the petitioner College. In view of the above order passed in this writ
petition, W.A.No.1146 of 2016 is allowed and the judgment dated 01.09.2016
made in W.P.No.40899 of 2002 is set aside. In view of the order passed in
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this writ petition, W.P.No.40899 of 2002 stands allowed on the similar lines.
No costs.
[T.K.R., J.] [N.S., J.]
18 .03.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
rgr
To
The Member Secretary
All India Council for Technical Education
Nelson Mandela Marg, Vasat Kunj
New Delhi – 110 067.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:47:01 pm )
RMT.TEEKAA RAMAN, J.
and
N.SENTHILKUMAR, J.
rgr
Pre-delivery Common Judgment
in W.A.No.1146 of 2016 and
18.03.2025
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