2010 Supreme(Mad) 2543

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
Srinivasa Institute of Engineering and Technology, rep. by its Principal Dr. D. Padmanabhan, Chennai
Versus
All India Council for Technical Education (AICTE), rep. by its Member Secretary, New Delhi & Others
WRIT PETITION Nos. 3656, 3657, 3848, 4585, 4624, 4823, 4989, 6093, 6350, 7569, 11886, 11364, 12125, 12126, 12127, 12128, 12129, 12558, 12559, 12567, 11899 & 10516 of 2010
Decided on : 30-06-2010

Ratios
a. A delegated legislation can be challenged mainly on the ground of its violation of the Constitution and the enabling Act.
b. Court would exercise caution when the delegated legislation is challenged on the ground of its inconsistency with the object or scheme of the Act.
c. Regulation authorizing AICTE to initiate civil and criminal action against the erring institutions are ultra vires.
d. Absolutism is anathema to the constitutional system of Government
e. Though the Courts are not to judge the correctness of the opinion formed by the authorities, it can examine the existence of the circumstances warranting such decision.
f. Courts would not, normally weigh the pros and cons of the policy framed or adopted by the Government on any matter.
g. Courts would interfere with the policy decision of the Government only in case it infracts any of the Constitutional or Statutory provisions.
h. Decision of the Government to change its policy on any matter is not to be interfered with by the Court unless any illegality is committed in its execution.
i. Wisdom and advisability of educational policies are ordinarily not amenable to judicial review, unless it can be demonstrated that the policy is contrary to any Constitutional principles or statutory provision.
j. Unless there are words in the statute sufficient to show the clear intention of the legislature to affect existing rights, it is deemed to be prospective only.
k. The doctrine of legitimate expectation can be invoked only where there is an irreparable loss to the party and public interest does not suffer.

Headnote:(A)All India Council for Technical Education Act, 1987(52 of 1987)- Sec.10, 11, 23-Constitution of India-Art.14, 19(1)(g)-Education-Technical education-Standard- Regulation-Publication-Gazette-Prospective or retrospective-Breach-Consequence-Prosecution-Legitimate expectation-Petitioners were the engineering colleges approved by AICTE-They had applied for the renewal of their approval as per the regulations of the year 2006 which was then in force-Later, new regulations were published which mandated the institutions to comply with it-New regulations imposed higher financial burden upon the institutions and prescribed higher qualifications for the teaching staffs etc.-Petitioners challenged the new regulations as financially unviable, harsh and unconstitutional-Petitioners also challenged the constitutional validity of the part of the regulation that prescribed civil and criminal liability for breach of the regulation-AICTE contended that the regulations were intended to ensure excellence in technical education and it had necessary authority to effect such policy change and they were reasonable-Held, except the part of the regulation that imposed civil and criminal consequence for breach of the regulations, other regulations were valid-The institutions were entitled to have legitimate expectation that their pending applications would be considered as per the regulations that were in force on the date of making the application-Regulations, 2010 would be prospective and applicable only from the next academic year-Pending applications were directed to be considered as per the Regulation, 2006- Approval Process Hand Book need not be gazetted to make it binding-Court called upon the AICTE to undertake periodical survey, conduct research regularly to achieve excellence in technical education for quick development of the country-Writ petitions were disposed accordingly.

        (B)Constitution of India-Art.13, 14-Subordinate legislation-Validity-Challenge-Court-Power-Limitation-A delegated legislation can be challenged mainly on the ground of its violation of the Constitution and the enabling Act-Court would exercise caution when the delegated legislation is challenged on the ground of its inconsistency with the object or scheme of the Act.

        A delegated legislation can be declared invalid by the Court mainly on two grounds viz., (i) violation of the provisions of the Constitution and (ii) violation of the provisions of the enabling Act. If the rule making authority exceeds its authority and makes any provision inconsistent with the provisions of the Act, it can be held to be a violation of the provisions of the enabling Act. Para 49

        But, where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity. The validity of a subordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fair-minded authority could ever have made it. A subordinate legislation would not enjoy the same degree of immunity as a legislative act would. Para 55

        (C)All India Council for Technical Education Act, 1987(52 of 1987)- Sec.10, 11, 23-Constitution of India-Art.13, 14-Education-Technical education-AICTE-Standard- Regulation-Violation-Consequence-Prosecution-Validity-Regulation authorizing AICTE to initiate civil and criminal action against the erring institutions are ultra vires.

        However, Regulation 11.1, which authorises civil and criminal action against the defaulting institutions, is not contemplated under the provisions of Act. Therefore, it is ultra vires of the enabling Act. In such a situation, there is no other scope for this Court except to confirm the validity of the Regulations 2010, excluding Clause 11.1, which is a penal provision, made without the authority of law. Para 60

        (D)All India Council for Technical Education Act, 1987(52 of 1987)- Sec.10, 11, 23-Constitution of India-Art.14, 19(1)(g)-Education-Technical education-Standard- Regulation-Publication-Gazette-Prospective or retrospective-Breach-Consequence-Prosecution-Legitimate expectation-Absolutism is anathema to the constitutional system of Government-Though the Courts are not to judge the correctness of the opinion formed by the authorities, it can examine the existence of the circumstances warranting such decision.

        The constitutional system of Government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi-judicial decision. … … In other words, the existence of the circumstances in question is open to judicial review, though the opinion formed by the authority is not amenable to review by the courts. This can be done by the courts while confining this to the acknowledged parameters of the judicial review namely, illegality, irrationality and mala fides. Para 62

        (E)Constitution of India-Art.13, 14, 226-Administration of justice-Judiciary-Writ jurisdiction-Power-Exercise-Policy decision-Interference-Courts would not, normally weigh the pros and cons of the policy framed or adopted by the Government on any matter-Courts would interfere with the policy decision of the Government only in case it infracts any of the Constitutional or Statutory provisions- Decision of the Government to change its policy on any matter is not to be interfered with by the Court unless any illegality is committed in its execution- Wisdom and advisability of educational policies are ordinarily not amenable to judicial review, unless it can be demonstrated that the policy is contrary to any Constitutional principles or statutory provision.

        It is not normally within the domain of any court to weigh the pros and cons of the Policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it.

        70. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belong to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21. Courts will interfere only if there is a clear violation of constitutional or statutory provisions or non-compliance by the State with its constitutional or statutory duties. Para 69, 70

       Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. Wisdom and advisability of educational policies are ordinarily not amenable to judicial review, unless it can be demonstrated that the policy is contrary to any Constitutional principles or statutory provision. In other words, it is not for this Court to consider relative merits of different policies/regulations and consider whether a wiser or better one can be evolved. But, when there is arbitrary exercise of power, the Court can very well interfere with such policies of the Government. Para 97

        (F)Interpretation of statutes-Statute-Operation-Prospective-Retrospective-Right-Vested right-Interference- Unless there are words in the statute sufficient to show the clear intention of the legislature to affect existing rights, it is deemed to be prospective only.

        It is a cardinal principle of law that every statue is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But, the rule in general is applicable where the object of the statue is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only. Para 82

        (G)Constitution of India-Art.14-State-Action-Arbitrariness-Expectation-Legitimate expectation-Invocation-Limitation-The doctrine of legitimate expectation can be invoked only where there is an irreparable loss to the party and public interest does not suffer.

        The doctrine of legitimate expectation can be invoked where there is an irreparable loss to the party and public interest does not suffer. Though a right based upon the legitimate expectation is not a legal right, when the expectation is legitimate, reasonable, logical and valid and a certain degree of fairness is required from the other persons, then the doctrine of legitimate expectation can be invoked. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage. Para 92