Before forming any opinion
regarding the powers of the IIT council, Board, senate and other
authorities, in the matter relating to the admission of the students
to the IITs, the following provisions of the Institutes of Technology
Act, 1961, hereinafter referred to as IIT Act or Act for short, need
to be gone through in their entirety.
Chapter I
PRELIMIANRY
1.-----------------------
2.-----------------------
3. In
this Act, unless the context otherwise requires, -
(a)
"Board", in relation to any Institute, means the Board of
Governors thereof;
(b)
"Chairman" means the Chairman of the Board;
(c)
"Corresponding Institute" means, -
(i)
in relation to the society known as the Indian Institute of
Technology, Bombay, the Indian
Institute
of Technology, Bombay;
*(ia)
in relation to the known society as the College of Engineering &
Technology, Delhi, the
Indian
Institute of Technology, Delhi.
(ii)
in relation to the society known as the Indian Institute of
Technology (Kanpur) Society,
the
Indian Institute of Technology, Kanpur, and
(iii)
in relation to the society known as the Indian Institute of
Technology, Madras, the Indian
Institute
of Technology, Madras;
(d)
"Council" means the Council established under sub-section
(1) of section 31;
(e)
"Deputy Director", in relation to any Institute means the
Deputy Director thereof;
(f)
"Director", in relation to any Institute means the Director
thereof;
(g)
"Institute" means any of the Institutions mentioned in
section 2 and includes the Indian
Institute
of Technology, Kharagpur, incorporated under the Indian Institute of
Technology
(Kharagpur)
Act, 1956;
(h)
"Registrar", in relation to any Institute, means the
Registrar thereof;
(i)
"Senate", in relation to any Institute, means the Senate
thereof;
(J)----------------------------------------
(k)
"Statutes and
Ordinances" in relation to any Institute, mean the Statutes and
Ordinances of the Institute made under this Act.
CHAPTER II
THE INSTITUTES
4.4(I)
Each of the Institutes mentioned in
section 2 shall be a body corporate having perpetual
succession
and a common seal and shall, by its name, sue and be sued.
*(IA)
The College of Engineering and Technology, Delhi, shall on such
incorporation; be called
the
Indian Institute of Technology, Delhi.
(2)
The body corporate constituting each of the said Institute shall
consist of a Chairman, a
Director
and other members of the Board for the time being of the Institute.
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6.(I)
Subject to the provision of this Act, every Institute shall exercise
the following powers and
perform
the following duties, namely:--
(a)to
provide for instruction and research in such branches of engineering
and technology,
sciences
and arts, as the Institute may think fit, and for the advancement of
learning and
dissemination
of knowledge in such branches;
(b)
to hold examinations and grant degrees, diplomas and other academic
distinctions or titles;
(c)
to confer honorary degrees or other distinctions;
(d)
to fix, demand and receive fees and other charges;
(e)
to establish, maintain and manage halls and hostels for the residence
of students;
(f)
to supervise and control the residence and regulate the discipline of
students of the Institute
and
to make arrangements for promoting their health, general welfare and
cultural and
corporate
life;
(g)
to provide for the maintainance of units of the National Cadet Corps
for the students of the
Institute;
(h)
to institute academic and other posts and to make appointments
thereto (except in the case
of
the Director);
(i)
to frame Statutes and Ordinances and to alter, modify or rescind the
same;
(j)
to deal with any property belonging to or vested in the Institute in
such manner as the
Institute
may deem fit for advancing the objects of the Institute;
(k)
to receive gifts, grants, donations or benefactions from the
Governments and to receive
bequests,
donations and transfers of movable or immovable properties from
testators,
donors
or transferors, as the case may be;
(i)
to co-operate with educational or other institutions in any part of
the world having objects
wholly
or partly similar to those of the Institute by exchange of teachers
and scholars and
generally
in such manner as may be conducive to their common objects;
(m)
to institute and award fellowships. scholarships, exhibitions, prizes
and medals; and
(n)
to do all such things as may be necessary. incidental or conducive to
the attainment of all
or
any of the objects of the Institute.
2)
Notwithstanding anything contained in sub-section (1), an Institute
shall not dispose of in
any
manner any immovable property without the prior approval of the Visit
7…………………………….
8……………………………..
9.
(1) The President of India shall be the Visitor of every Institute.
(2)
The Visitor may appoint one or more persons to review the work and
progress of any Institute and to hold inquiries into the affairs
thereof and to report thereon in such manner as the Visitor may
direct.
(3)
Upon receipt of any such report, the Visitor may take such action and
issue such directions as he considers necessary in respect of any of
the matters dealt with in the report and the
Institute
shall be bound to comply with such directions.
10.The
following shall be the authorities of an Institute,
(a)
a Board of Governors;
(b)
a Senate; and
(c)Such
other authorities as may be declared by the Statutes to be the
authorities of the
Institute.
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12……………………………
13.
(1) Subject to the provisions of this Act, the Board of
any Institute shall be responsible for the general superintendence,
direction and control of the affairs of the Institute and shall
exercise
all the powers of the Institute not otherwise provided for by this
Act, the Statutes
and
the Ordinances, and shall have the power to review the acts of the
Senate.
(2}
Without prejudice to the provisions of sub- section (1), the Board of
any Institute shall-
(a)
take decisions on questions of policy relating to the administration
and working of the
Institute;
(b)
institute courses of study at the Institute;
(c)
make Statutes;
(d)
institute and appoint persons to academic as well as other posts in
the Institute;
(e)
consider and modify or cancel Ordinances;
(f)
consider and pass resolutions on the annual report, the annual
accounts and the budget
estimates
of the Institute for the next financial year as it thinks fit and
submit them to the
Council
together with a statement of its developments plans;
(g)
exercise such other powers and perform such other duties as may be
conferred or imposed
upon
it by this Act or the Statutes.
(3)
The Board shall have the power to appoint such committees as it
considers necessary for
the
exercise of its powers and the performance of its duties under this
Act.
14…………………………..
15. Subject to the
provisions of this Act, the Statutes and the Ordinances, the Senate
of an Institute shall have the control and general regulation, and be
responsible for the maintenance, of standards of instruction,
education and examination in the Institute and shall exercise such
otherpowers and perform such other duties as may be conferred or
imposed upon it by the Statutes.
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17……………………………….
18………………………………
19…………………………….
20…………………………………….
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22……………………………………..
23……………………………………..
24………………………………………
25………………………………………
26.
Subject to the provisions of this Act, the Statutes may provide for
all or any of the following
matters,
namely :-
(a)
the conferment of honorary degrees;
(b)
the formation of departments of teaching;
(c)
the fees to be charged for courses of study in the Institute and for
admission to the
Examinations
of degrees and diplomas of the Institute.
(d)
the institution of fellowships, scholarship, exhibitions, medals and
prizes.
(e)
the term of office and the method of appointment of officers of the
Institute;
(f)
the qualification of teachers of the Institute;
(g)
the classification, the method of appointment and the determination
of the terms and
conditions
of service of teachers and other staff of the Institute;
(h)
the constitution of pension, insurance and provident funds, for the
benefit of the officers,
teachers
and other staff' of the Institute;
(i)
the constitution, powers and duties of authorities of Institute;
(j)
the establishment and maintenance of halls and hostels;
(k)
the conditions of residence of students of the Institute and the
levying of fees for
residence
in the halls and hostels and of other charges;
(l)
the manner of filling vacancies among members of the Board;
(m)
the allowances to be paid to the Chairman and members of the board;
(n)
the authentication of the orders and decisions of the board;
(o)
the meetings of the Board, the Senate, or any Committee, the quorum
at such meetings
and
the procedure to be followed in the conduct of their business;
(p)
any other matter which by this Act is to be or may be prescribed by
the Statutes.
27.
(1)
The first Statutes of each Institute shall be framed by the Council
with the previous
approval
of the Visitor and a copy of the same shall be laid as soon as may be
before each
House
of Parliament.
(2)
The Board may, from time to time, make new or additional Statutes or
may amend or
repeal
the Statutes in the manner hereafter in this section provided.
(3)
Every new Statute or addition to the Statutes or any amendment or
repeal of a Statute
shall
require the previous approval of the Visitor who may assent thereto
or withhold
assent
or remit it to the Board for consideration.
(4)
A new Statute or a Statute amending or repealing an existing Statute
shall have no
validity
unless it has been assented to by the Visitor.
28.
Subject to the provisions of this Act
and the Statutes, the Ordinance, of each Institute may provide for
all or any of the following matters namely :-
a)
the admission of the students to the
Institute;
b)
the courses of study to be laid down for
all degrees and diplomas of the Institute;
c)c)
the conditions under which students
shall be admitted to the degree or diploma courses and to
the examinations of the Institute,
and shall be eligible for degrees and diplomas;
d)
the conditions of award of the
fellowships, Scholarships, exhibitions, medals and prizes;
e)
the conditions and mode of appointment
and duties of examining bodies, examiners and
moderators;
f)
the conduct of examinations;
g)
the maintenance of discipline among the
students of the Institute; and
h))
any other matter which by this Act or
the Statutes is to be or may be provided for by the
Ordinances.
29.
(1)
Save as otherwise provided in this section, Ordinances shall be made
by the Senate.
(2)
All ordinances made by the Senate shall have effect from such date as
it may direct, but
every
Ordinance so made shall be submitted, as soon as may be, to the Board
and shall be
considered
by the Board at its next succeeding meeting.
(3)
The Board shall have power by resolution to modify or cancel any
such Ordinance and such Ordinance shall from the date of such
resolution stand modified accordingly or cancelled, as the case may
be.
30…………………………………………………….
CHAPTER III
THE COUNCIL
31.
(1)
With effect from such date as the Central Government may, by
notification in the Official Gazette, specify in this behalf, there
shall be established a central body to be called the
Council.
(2)
The Council shall consist of the members, namely :-
........................................
32………………………………………………..
33.33.
(1) It shall be the general duty of the
Council to co- ordinate the activities of all the Institutes.
(2)
Without prejudice to the provisions of sub. section (1), the Council
shall perform the
following
functions, namely: -
a) to
advise on matters relating to the duration of the courses, the
degrees and other academic distinctions to be conferred by the
Institutes, admission standards and other academic matters;
b)b)
to lay down policy regarding cadres,
methods of recruitment and conditions of service of
employees,
institution of scholarships and freeships, levying of fees and other
matters of
common
interest;
c)
to examine the development plans of each
Institute and to approve such of them as are
considered
necessary and also to indicate broadly the financial implications of
such approved
plans;
d)d)
to examine the annual budget estimates
of each Institute and to recommend to the Central
Government
the allocation of funds for that purpose;
e)e)
to advise the Visitor, if so required,
in respect of any function to be performed by him under this Act; and
f)f)
to perform such other functions as are
assigned to it by or under this Act.
34………………………………..
35……………………………….
CHAPTER
IV
MISCELLANEOUS
……………………………
THE
SCHEDULE
…………………………..
It is to be noted that the
section 15 of the Act provides that subject to the provisions of the
Act and Statutes, the matters relating to the admission of the
students in the institute is to be provided by the Ordinance. Section
29(1) further provides that all the ordinances shall be made by the
senate. The clause (2) of the said section further provides that all
ordinances made by the senate shall have effect from such that date
as it may direct. But every ordinance so made shall be submitted as
soon as may be to the board and shall be considered by the board at
its next succeeding meeting. The clause (3) of the said section
further empowers the board to modify or cancel any such ordinance and
such ordinance shall from the date of such resolution stand notified
accordingly or cancelled, as the case may be. The co-joint reading of
the said section in light of the other provisions of the Act, makes
it clear that the powers to frame, modify or regulate the procedure
of admission in the institute vests in the senate. The senate has the
power to lay down the policy and procedure for admission in the
institutes by passing appropriate ordinances. However the Board of
the Institute can modify or amend any such ordinance. However it
pertinent to mention herein that the Board can not directly frame the
procedure of admission as it has no power to directly pass an
ordinance, and statutes under the Act can not provide for the
admission procedure. Every provision regarding admission has to be
provided for by the Senate by passing an Ordinance first and only
thereafter board can amend or modify the Ordinance.
There is also no provision
under the statutes of various IITs to provide for the procedure for
admission to the institutes. The entire admission process for all the
IITs is governed by the ordinances made by the senates of the various
institutes. Senates of all the institutes by their ordinances agreed
to conduct the joint entrance examination and laid down the
procedures which have been followed till date.
It is also pertinent to
mention herein that there is no provision under the act which speaks
about the procedure of admission except section 15 read with section
29 of the Act. However section 33 of the Act merely confers advisory
function on the IIT council in regard to the matters relating to
admission standards, besides other functions. The council has not
been conferred with any powers to lay down the policy for admission
of the students in the institutes.
However it is being argued
by some persons that the advise given by the council under section
33(2)(a) is binding upon the senate, board and the institute thereby
inviting interpretation of the provisions of the section 33 (2) (a)
of the Act. The said argument is baseless.
The first principle of
interpretation is the literal or grammatical interpretation which
means that the words of an enactment are to be given their ordinary
and natural meaning and if, such meaning is clear and unambiguous,
the effect should be given to the provisions of a statue whatever may
the consequences. The basis of the principle is that the object of
all the interpretation being to know what the legislature intended ,
whatever ever was the intention of the legislature has been expressed
by it through words which are to be interpreted according to the
rules of grammar. The legislature‘s intention can be deduced only
from the language through which it has expressed itself.
The word “advise” used
in the section 33 (2)(a) and (e) of the IIT Act is absolutely clear
and unambiguous and has to been given its ordinary meaning which
means that the IIT council has been conferred only advisory function
under section 33 (2) (a) and 33(2) (e) of the Act. The IIT council
can only advise the institute in regard to the matter relating to
admission.
The
section 33 (2) of the Act provides
(1)
It shall be the general duty of the Council to co- ordinate the
activities of all the Institutes.
(2)
Without prejudice to the provisions of sub. section (1), the Council
shall perform the
following
functions, namely: -
- to advise on matters relating to the duration of the courses, the degrees and other academic distinctions to be conferred by the Institutes, admission standards and other academic matters;
- to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest;
- to examine the development plans of each Institute and to approve such of them as are considered necessary and also to indicate broadly the financial implications of such approved plans;
- to examine the annual budget estimates of each Institute and to recommend to the Central Government the allocation of funds for that purpose;
- ) to advise the Visitor, if so required, in respect of any function to be performed by him under this Act; and
- to perform such other functions as are assigned to it by or under this Act.
The bare reading of the said
provisions makes it clear that a proper classification of the
functions of council has been made under section 33 of the act. The
council has been conferred different powers and functions and various
functions to be performed by them and their nature has been
classified in the said section. The council is required to
co-ordinate the activities of the all the institutes. The section 33
(2) (a) and (e) confers merely advisory function in the matters
relating to the duration of the courses, the degrees and other
academic distinctions, admission standards and other academic matters
and to advise the visitor i.e. president of India in respect of any
function to be performed by him under this Act. The section 33 (2)
(b) on the other hand confers absolute powers on the council to lay
down the policy regarding cadres, methods of recruitment and
conditions of service of the employees. The section 33 (2) (C) (d)
confers monitory function on the council i.e. to examine the
development plan and powers to approve the same after considering the
financial implications, to examine the annual budget and to recommend
the central government for allocation funds for that purpose. The
section 33 has conferred different functions on the council and have
properly classified them. The word “advise” has been deliberately
used by the legislature under section 33 (2) (a) and (b). The
intention of the legislature is clear that the council can only
advise the institute in the matters specified under section 33 (2)
(a) and (e) and same is not binding at all. Though some are
interpreting that the “advise” means “directions” and advise
given by the council is binding on the institute, but if the same
would have been the intention of the legislature, the word “advise”
would not have been used as has been done in the under section 33 (2)
(b) of the Act where under clear cut powers to lay down policies in
respect of matters mentioned therein has been conferred. Had it been
the intention of legislature to make the advise of the council
binding on the institute in the admission matters, the same would
have been placed under section 33 (2) (b) along with other matters.
The co-joint reading of all the section and the classification of the
functions and duties of council made in the said section, makes the
intention of the legislature clear that Council can only advise in
the matters relating to admission in the IIT and same is not at all
binding on the institute. The council has no powers under the Act to
lay down the policy of admission or to issue any direction in this
regard.
One of the important general
principles of interpretation is that the statue should be read as a
whole while construing its provisions. A provision of a statue can
not read in isolation. The section 33 (2) (b) can not be read in
isolation but the entire section 33 has to be read with the entire
Act to deduce the inetion of legislature and the meaning word “
advise” used in the said section. Applying this principle also, the
word “advise” is merely advice and can not be equated with the
word “direct”.
The object of the IIT Act is
to declare certain institutions of technology to be institutions of
national importance and to ensure their autonomy. The Act declares
that each of the Institutes mentioned in
section 2 shall be a body corporate having perpetual succession and a
common seal and shall, by its name, sue and be sued. In order to
ensure its proper and independent functioning, various authorities
i.e. Board and senates have been created and a democratic set up has
been laid down by the Act for the said authorities to exercise their
powers and function. The one of the important feature of the autonomy
of the institutes is the regulation of the procedure of admission to
the institute without any outside or political interference. The
word “advise” has been deliberately used by the legislature under
section 33 (2) (a) and (e) of the IIT Act thereby granting only
advisory function on the IIT council which is actually not the
authority of the institute and is an outside agency, to ensure
autonomy of the institutions. Replacing the words “advise” with
“direct” would amount to frustrating the purpose of the Act. A
provision of Act can not be given an interpretation which would
frustrate the purpose of the Act.
The word “ advise” can
not be equated with the word “direct” as it would amount to
amending the provisions of the Act which the executive can not
legally do. The amendment to the provisions of Act lies only in the
realm of the Parliament.
It is further pertinent to
mention herein that the admission to the IITs can not be equated with
admission procedure of the other institutes which are not covered by
the provisions of the IIT Act.
In view of the aforesaid
discussion it is opined that the entire powers in regard to the
admission matters vest in the senate which it provide by passing
appropriate ordinance. However the Ordinance can be modified by the
Board. The IIT council can only advise in the matters of the
admission standards which advise would not be binding on the
Institute.
(Manvendra Nath Singh)
Advocate,
Delhi High Court, Ch. NO.
483, Block-II, Lawyers Chamber,
Delhi High Court, New
Delhi-110002
Email: mnsingh1975 [AT] yahoo.co.in
