Kerala High Court
Kollengode Educational & Charitable ... vs All India Council For Technical ... on 5 April, 2013
Author: K.M.Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
WA.No. 650 of 2013 IN WP(C).29611/2012
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AGAINST THE ORDER/JUDGMENT IN WP(C) 29611/2012 of HIGH COURT OF
KERALA DATED 05-04-2013
APPELLANT(S)/APPELLANT/PETITIONER :
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KOLLENGODE EDUCATIONAL & CHARITABLE TRUST,
REP.BY ITS ACTING CHAIRMAN, K.UNNIKRISHNAN
S/O. KUNJU, 'KAUSTHUBHAM', KATTUKODE
VADAKKENCHERRY, PALAKKAD-678 683.
BY ADVS.SRI.NIRMAL. S
SMT.VEENA HARI
RESPONDENTS/RESPONDENTS:
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1. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REP.BY MEMBER SECRETARY, 7TH FLOOR
CHANDRALOK BUILDING, JANPATH, NEW DELHI-110 001.
2. THE REGIONAL OFFICER
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
SOUTH WESTERN REGIONAL OFFICE
BANGALORE UNIVERSITY CAMPUS, P.K.BLOCK, PALACE ROAD
BANGALORE-560 009.
R1-R2 BY ADV. SRI.S.KRISHNAMURTHY,SC, AICTE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2014,
ALONG WITH WA.1111/2013, THE COURT ON 06-03-2014 DELIVERED THE
FOLLOWING:
C.R.
K.M.JOSEPH
&
A.K.JAYASANKARAN NAMBIAR, JJ.
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W.A.NOS.650 & 1111 OF 2013
-----------------------------------
Dated this the 6th day of March, 2014
J U D G M E N T
A.K.JAYASANKARAN NAMBIAR, J.
This common judgement disposes W.A.No.650/2013 and W.A.No. 1111/2013 preferred by the appellant therein - Kollengode Educational & Charitable Trust.
2. W.A.No.650/2013 is filed against the judgement dated 05.04.2013 of the learned single judge dismissing W.P.(C).No. 29611/2012. In the said writ petition, the appellant herein had challenged Ext.P12 communication dated 10.10.2012 of the All India Council for Technical Education (hereinafter referred to as 'AICTE') rejecting the request of the appellant for Extension of Approval for the Institute of Science & Technology, Palakkad for the year 2012-13. W.A.No.1111/2013, on the other hand, is filed against the judgement dated 18.07.2013 of the learned single judge dismissing W.P.(C).No.12157/2013. In the said writ petition, the appellant herein had challenged Ext.P3 order dated 10.04.2013 of the AICTE rejecting the request of the appellant for Extension of W.A.NOS.650 2 & 1111/2013 Approval for the Institute of Science & Technology, Palakkad for the year 2013-14. As the issue involved in both the appeals was common, the appeals were taken up together for hearing and disposal.
3. The brief facts necessary for the disposal of these appeals are as follows;
The appellant is a Public Trust running a private Engineering College under the name and style of "Palakkad Institute of Science & Technology (PISAT)" at Kollengode in Palakkad District. The said Institute is stated to have obtained a provisional affiliation from the Calicut University as also an approval from the AICTE in June, 2009. The AICTE approval was extended for the next academic year (2010-11) also. When an extension was sought for the following year - 2011-12 - however, the AICTE rejected the request for extension on the ground that it had come to its notice that the Chairman of the Trust had been charge-sheeted by the Central Bureau of Investigation (CBI) and the AICTE had taken a decision not to grant Extension of Approval (hereinafter referred to as 'EOA') to such institutes where it was found that the CBI had filed a charge sheet against any of the office bearers of the educational agency. The appellant then approached this court through W.P.(C). W.A.NOS.650 3 & 1111/2013 No.19449/2011 seeking a direction to the AICTE to grant the EOA for the year 2011-12. This court allowed the said writ petition, vide judgement dated 07.06.2012, after finding that it was not on the basis of any non-compliance of any direction to cure a defect or deficiency or for want of any inspection by the AICTE that the EOA was not granted.
4. The request of the appellant for EOA for the next year ie. 2012-13, though made in time on 12.01.2012, was not considered by the AICTE, initially on the ground that the application of the appellant for EOA for 2011-12 was still pending consideration. Later, when the appellant produced a copy of the judgement in W.P.(C).No.19449/2011, the AICTE appears to have accepted the fact that there was a valid EOA for 2011-12 but proceeded to refuse the EOA for 2012-13 citing Clause 3.1 (d) of Approval Process Handbook (APH) 2012-13. This decision was communicated to the appellant vide order dated 10.10.2012 that was impugned in W.P.(C).No.29611/2012 after amending the writ petition to incorporate a challenge against the constitutional validity of Clause 3.1 (d) as well. By judgment dated 05.04.2013, the learned single judge while dismissing the writ petition, upheld the validity of Clause 3.1 (d) of the APH 2012-13. It was also found W.A.NOS.650 4 & 1111/2013 that insofar as there was a charge sheet issued against the Chairman of the Trust, the appellant was not entitled to get an EOA for the year 2012-13.
5. During the pendency of W.P.(C).No.29611/2012, the appellant also applied for an EOA for the year 2013-14. This application was accepted by the AICTE on 08.02.2013. Thereafter, on finding that the APH 2013-14 of the AICTE also contained a provision similar to Clause 3.1 (d) that existed in the APH for the earlier year, the appellant moved an interlocutory application No.4003/2013 in W.P.(C).No.29611/2012 seeking a direction to the AICTE to ignore Clause 3.1 (d) of the APH 2013-14 while considering the application preferred by the appellant for the EOA for the year 2013-14. This prayer in the interlocutory application was made on the strength of the ratio laid down by the Supreme Court in the case of Bharathidasan University v. AlI India Council For Technical Education and Others ((2001) 8 SCC
676) as well as the judgement dated 13.12.2012 of the said court in Parshvanath Charitable Trust and Others v. All India Council For Technical Education and Others (SLP (C).No. 26086/2012). It was the appellant's case that in view of the said judgments of the Supreme Court, the provisions of Clause 3.1 (d) of W.A.NOS.650 5 & 1111/2013 the APH 2013-14 had to be ignored, as they were not in consonance with the provisions of the AICTE Act. No orders were passed by this court on the said interlocutory application but as already noticed, the learned single judge dismissed the writ petition itself.
6. The application submitted by the appellant for EOA for the year 2013-14 was rejected by the AICTE vide order dated 10.04.2013. Although the appellant filed an appeal against the said order before the appellate committee of the AICTE, as contemplated by the APH 2013-14, no action was taken on the appeal by the said committee. The appellant, therefore approached this Court through W.P.(C).No.12157/2013 challenging the order dated 10.04.2013 of the AICTE refusing EOA for the year 2013-14. When the writ petition came up for orders before this court on 29.05.2013, the learned single judge took note of the contention of the AICTE that in the absence of any EOA for the previous year, there could not be any EOA granted for the year 2013-14 either. This court, however, recorded the submission on behalf of the State Government that the name of the appellant could also be included in the list of Institutions/Engineering colleges for allotment for the year 2013-14 subject to the execution of an agreement with the W.A.NOS.650 6 & 1111/2013 Government for seat sharing. The appellant did not, however, get the benefit of this interim order of the court owing to an agreement with the Government not being entered into.
7. The writ petition itself was later heard by a learned single judge of this court who found that insofar as the validity of Clause 3.1 (d) of the APH had been upheld by this Court in W.P.(C).No. 29611/2012 and no stay had been granted against the operation of that judgement in W.A.No.650/2013 preferred by the appellant against the said judgement, the application for EOA preferred by the appellant had to be considered in the light of the said clause in the APH. Thus viewed, insofar as there was no approval by the AICTE for the earlier year (2012-13), the appellant was not entitled to an EOA for the year 2013-14 either. The learned judge also found that the mere fact that the Chairman of the Trust had since resigned from the Trust on 20.03.2013 did not mean that the insinuation against the Trust had ceased to exist. As regards the submissions made by the appellant regarding the non requirement of any approval by the AICTE, based on the judgement of the Supreme Court in the case of Association of Management of Private Colleges v. All India Council for Technical Education and Others ((2013) 8 SCC 271), the learned judge found that W.A.NOS.650 7 & 1111/2013 the said decision would not be of any assistance to the appellant since it was rendered in the context of grant of AICTE approval to MCA/MBA courses run by colleges in Tamil Nadu affiliated to Bharathidasan University or Manonmaniam Sundaranar University and did not consider the issue of requirement of AICTE approval for institutions running Engineering colleges. On these findings, W.P.(C).No.12157/2013 was dismissed by the learned single judge.
8. In view of the similarity in the nature of reliefs prayed for in both the writ appeals as also the common issues involved, both the writ appeals were taken up together for hearing and disposal. We have heard Adv. Sri. Nirmal S on behalf of the appellants in both the writ appeals as also Adv. Sri. S. Krishnamurthy, Standing Counsel for the AICTE. The contentions put forth by Adv.Sri Nirmal on behalf of the appellants are summarised as under;
(i) The action of the AICTE in rejecting the EOA for the years 2012-13 and 2013-14 is illegal since Clause 3.1 (d) of the APH, that was relied upon to reject the applications of the appellant, was itself ultra vires the provisions of the AICTE Act;
(ii) Even assuming that the said Clause was valid, it could not have been relied upon by the AICTE to deny the request for EOA for the year 2012-13 since the W.A.NOS.650 8 & 1111/2013 clause, though introduced in the APH before the date specified for consideration of applications for EOA for the year 2012-13, the 2012 Regulations, that authorised the prescription of conditions of approval through the APH, were notified and came into force only with effect from 27.09.2012. The said clause could not, therefore, have been pressed into service while considering the application for EOA submitted by the appellant for the year 2012-13;
(iii) In the absence of Clause 3.1 (d) of the APH while considering applications for EOA for the year 2012-13, the findings of this court, in the judgement in WP (C) 19449/2011, would come to the aid of the appellant and the AICTE had to necessarily grant the EOA to the appellant for the year 2012-13;
(iv) For the year 2013-14, notwithstanding the existence of Clause 3.1 (d) in the APH, the appellant had nevertheless to be given the EOA since the disabling fact of a charge sheet against the Chairman of the Trust had ceased to exist with the said Chairman retiring from the Trust with effect from 20.03.2013, well before the date of consideration of the application for EOA by the AICTE;
(v) By virtue of the authoritative pronouncements of the Supreme Court in the cases of Bharathidasan University and another v. All India Council For Technical Education and Others ((2001) 8 SCC 676), Parshvanath Charitable Trust and Others v. All India Council For Technical Education and Others ((2013) 3 W.A.NOS.650 9 & 1111/2013 SCC 385) and Association of Management of Private Colleges v. All India Council For Technical Education and Others ((2013) 8 SCC 271), the AICTE had no power to regulate the affairs of the appellant institute and consequently the grant or refusal of the EOA was wholly irrelevant to the issue of whether the appellant could run the Engineering institute.
9. Meeting the submissions put forth on behalf of the appellants, Adv.Sri.Krishnamurthy, appearing on behalf of the AICTE would submit as under;
(i) The request of the appellant for EOA for the year 2012-13 could not be acceded to for the reason that, as on the date of consideration of applications, there was no valid application received from the appellant owing to the fact that it did not have a valid EOA for the previous year;
(ii) By the time, the application of the appellant for the EOA for 2012-13 could be considered by the AICTE, pursuant to the judgement of this Court in W.P.(C).No. 19449/2011, Clause 3.1 (d) of the APH 2012-13 had already been introduced and hence the application submitted by the appellant had to be processed in accordance with the said provisions;
(iii) Clause 3.1 (d) of the APH was a provision that was validly made pursuant to the powers of the AICTE under the AICTE Act. The said provision was in conformity with the objects of the Act;
W.A.NOS.650 10 & 1111/2013
(iv) The existence of a charge sheet filed by the CBI against the Chairman of the appellant Trust was a disabling factor insofar as grant of EOA to the appellant for the years 2012-13 and 2013-14 were concerned. The mere fact that the Chairman had resigned from the Trust with effect from 20.03.2013 did not mean that the disqualification of the Trust had ceased to exist;
(v) Going by the express provisions of the AICTE Act and the judgments of the Supreme Court on the issue the existence of a power in the AICTE, to regulate technical education courses carried on by institutes that were affiliated to Universities, was both undeniable and unassailable.
10. We have considered the submissions of both sides. We feel that before embarking upon an analysis of the rival contentions, it would be apposite to note the relevant statutory provisions that indicate the scope of the regulatory power exercised by the AICTE in the context of technical education in the country.
Section 2 (f), (g), (h) and (i) of the AICTE Act read as:
"2. Definitions:-
..............
(f) "Regulations" means regulations made under this Act.
(g) "Technical education" means programmes of education, research and training in W.A.NOS.650 11 & 1111/2013 engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare;
(h) "Technical institution" means an institution, not being a university which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;
(i) "University" means a University defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 (3 of 1956) and includes an institution deemed to be a University under Section 3 of that Act.
10. Functions of the Council - 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 management and maintenance of standards and for the purposes of performing its functions under this Act, the Council may-
.......
(k) grant approval for starting more technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned:"
Further, the relevant sections of University Grants Commission Act, 1956 reads as under :
"2.Definitions:-
..............
(f) "University" means a University established or incorporated by or under a Central Act, as Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the commission in accordance with the regulations made in this behalf under this Act.
12. Functions of the Commission:- It shall be the general duty of the Commission to take, in consultation with the Universities or other W.A.NOS.650 12 & 1111/2013 bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may-
(a) inquire into the financial needs of
Universities;
(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose:
(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem 1[necessary or appropriate for the development of such Universities or for the maintenance, or development or both, of any specified activities of such Universities] or for any other general or specified purpose: Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve, 2[(cc) allocate and disburse out of the Fund of the commission, such grants to institution deemed to be Universities in pursuance of a declaration made by the Central Government under Section 3, as it may deem necessary, for one or more of the following purposes, namely:-
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose;] 1["(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and, disbursing out of the Fund of the Commission such grants as the Commission may deem necessary".]
(d) recommend to any University the measures W.A.NOS.650 13 & 1111/2013 necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation:
(e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general specified purpose out of the consolidated Fund of India or the consolidated Fund of the State, as the case may be;
(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;
(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University as the case may be;
(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University.
(i) require a University to finish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that university respecting each of such branches of learning;
(j) perform such other functions as may be prescribed or as may be deemed necessary by the commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.
12A. Regulation of fees and prohibition of donations in certain cases:-
(1) In this section-
(a) "affiliation", together with its grammatical variation, includes, in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a university:
(b) "college" means any institution, whether W.A.NOS.650 14 & 1111/2013 known as such or by any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance with the rules and regulations of such university, is recognized as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification.
(c) "Prosecution" in relation to a course of study, includes promotion from one part or stage of the course of study to another part or stage of the course of study.
(d) "qualification" , means a degree or any other qualification awarded by a university.
(e) "regulations" means regulations made under this Act.
(f) "specified course of study", means a course of study in respect of which regulation of the nature mentioned in sub-section (2) have been made.
(g) "student" includes a person seeking admission as a student:
(h) "university" means a university or institution referred to in sub-section (1) of Section
22.
(2) Without prejudice to the generality of the provisions of section 12 if, having regard to- ......
(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study: and
(d) all other relevant factors, the commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universities concerned, specify by regulations the matters in respect of which fees may be charged and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulation in this behalf, by any college W.A.NOS.650 15 & 1111/2013 providing for such course of study from or in relation to, many student in connection with his admission to, and prosecution of, such course of study;....
13. Inspection -(1) For the purpose of ascertaining the financial needs of a University or its standards or teaching examination and research the Commission may, after consultation with the University, cause an inspection of any department or departments thereof to be made in such manner as may be prescribed and by such person or persons as it may direct.
(2) The Commission shall communicate to the University the date on which any inspection under sub section (1) is to be made and the University shall be entitled to be associated with the inspection in such manner as may be prescribed.
(3) The Commission shall communicate to the University its views in regard to the results of any such inspection and may, after ascertaining the opinion of the University, recommend to the University the action to be taken as a result of such inspection.
(4) All communications to a University under this section shall be made to the executive authority thereof and the executive authority of the University shall report to the Commission the action, if any, which is proposed to betaken for the purpose of implementing any such recommendation as is referred to in sub-section (3)
14. Consequences of failure of Universities to comply with recommendations of the Commission- If any University [grants affiliation in respect of any course of study to any college referred to in sub-section (5) of section 12-A in contravention of the provisions of that sub-section or] fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13 or contravenes the provisions of any rule made under clause (f) or clause (g) of sub-section(2) of section 25, or of any regulation made under clause (e) 0r clause (f) or clause (g) of section 26] the Commission after taking into consideration the cause, if any, shown by the university for such failure or contraventions I may withhold from the University the grants W.A.NOS.650 16 & 1111/2013 proposed to be made out of the Fund of the Commission".
11. The provisions of the Statute clearly indicate that the regulatory power entrusted with the AICTE is all encompassing, in respect of technical institutes that are not already regulated in that respect by the Universities, whereas the power is a limited one when it comes to its exercise vis-`-vis Universities and its component institutes/colleges. This position in law has been explained by the Supreme Court in the decisions reported in Bharathidasan University and another v. All India Council For Technical Education and Others ((2001) 8 SCC 676), Parshvanath Charitable Trust and Others v. All India Council For Technical Education and Others ((2013) 3 SCC 385) and Association of Management of Private Colleges v. All India Council For Technical Education and Others ((2013) 8 SCC
271) the relevant paragraphs of which judgments are extracted herein below.
Bharathidasan University and another v. All India Council For Technical Education and Others ((2001) 8 SCC 676):
12. It is by now well settled that Parliament has enacted the University Grants Commission Act, 1956 as well as the AICTE Act, 1987 in the purported exercise of the powers envisaged in Entry 66 of List I of the Seventh Schedule to the Constitution of India, W.A.NOS.650 17 & 1111/2013 which reads as "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions". It was permissible for Parliament to enact a law with the object and aim of coordination and determination of standards among a particular class or category of institutions, which may deal wiht different kinds of education and research as also scientific and technical institutions of different disciplines and specialised branches of even such disciplines. Parliament, while enacting the AICTE Act, was fully alive to the existence, in full force and effect of the provisions of the UGC Act, 1956, which specifically dealt with the coordination and determination of standards at university level of institutions as well as institutions for higher studies of the category or class other than but deemed to be universities and yet roped into the definition of "technical institution" only institutions not being a university as defined in Section 2(i). Apart from so defining technical institutions so as to be exclusive of university even in empowering AICTE to do certain things, special care seems to ahve been conspicuously and deliberately taken to make specific mention of universities, wherever and whenever AICTE alone was expected to interact with universities and university departments as well as its constituent institutions. In the statement of objects to the AICTE Act, the evil sought to be curbed was stated to be the coming up indiscriminately of a number of private engineering colleges and polytechnics in complete disregard of the guidelines resulting in diluted standards, unplanned growth, inadequte faciliteis and lack of intrastructural facilities in them and not of any anomalies arising out of any university bodies or UGC to even think of either sidelining or subjugating them by constituting AICTE. The guarded language employed for the said purpose and eliberate omission to refer to the universities in Section 10(1)(K) of the AICTE Act while empowering AICTE to accord approval for starting new technical institutions and introduction of new programmes or courses by or in such institutions cannot be ignored ot be of any insignificance. A careful analysis of the various provisions contained in Sections 10, 11 and 22 will W.A.NOS.650 18 & 1111/2013 further go to show that the role of interaction conferred upon AICTE vis-as-vis universities is limited to the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it, with no further or direct control over such universities or scope for any direct action except bringing it to the notice of UGC or other authorities only, of any lapses in carrying out any directions of AICTE in this regard, for appropriate action. While stating that autonomy of universities should not mean a permission for authoritarian functioning, the High Courts by the construction placed by them have virtually allowed such authoritarianism to AICTE to such an extent as to belittle the importance and elegant role assigned to the universities in the educational system of the country and rendered them virtually subordinate to AICTE. In our view, that does not seem to be the object of creating AICTE or passing of the AICTE Act. Such construction as has been placed by the Court in M.Sambasiva Rao case which found favour of acceptance of the Court in the present case ought to have been avoided and the same could neither be said to have been intended nor was even in the contemplation of Parliament nor should UGC and the universities been relegated to a role subordinate to AICTE. UGC and universities have always had and have an accepted and well-merited role of primacy to play in shaping as well as stepping up a coordinated development and improvement in the standards of education and research in the sphere of education. When it is only institutions other than universities which are to seek affiliation, it was not correct to state in the decisions under challenge that a university, which cannot grant affiliation to a technical institution, cannot grant the same to itself. Consequently, the conclusions rendered based on the principles for classifying enactments into "general law" and "special law" to keep them within their respective limits or area of operation are not warranted and wholly uncalled for and do not merit our approval or acceptance.
13. AICTE cannot, in our view, make any regulation in exercise of its powers under Section 23 W.A.NOS.650 19 & 1111/2013 of the Act, notwithstanding sub-section(1), which though no doubt enables such regulations being made generally to carry out the purposes of the Act, when such power is circumscribed by the specific limitation engrafted therein to ensure them to be "not inconsistent with the provisions of this Act, and the Rules .....". So far as the question of grnating approval, leave alone prior or post, Section 10(1)(k) specifically confines the limits of such power of AICTE only to be exercised vis-a-vis technical institutions, as defined in the Act and not generally. When the language is specific, unambiguous and positive, the same cannot be overlooked to give an expansive meaning under the pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to the Statement of Objects and Reasons for the AICTE act, are not warranted or justified. Therefore, the Regulation insofar as it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw such approval, in a given case of contravention of the Regulations (Regulation 12) are directly opposed to and inconsistent with the provisons of Section 10(1)(k) of the Act and consequently void and unenforceable." Parshvanath Charitable Trust and Others v. All India Council For Technical Education and Others ((2013) 3 SCC 385)
17. The provisions of the All India Council for Technical Education Act, 1987 (for short "the AICTE Act") are intended to improve the technical education system throughout the country. The various authorities under the AICTE Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such coordinated action in higher education with proper standard is of paramount importance to the national progress.
18. The provisions of the AICTE Act, including W.A.NOS.650 20 & 1111/2013 its Preamble, make it abundantly clear that AICTE has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. AICTE is required to regulate and ensure proper maintenance of norms and standards in technical education system. AICTE is to further evolve suitable performance appraisal system for technical institutions and universiteis incorporating norms and mechanisms in enforcing their accountability. It is required to provide guidelines for admission of students and has the power to withhold or discontinue grants to such technical institutions where norms and standards laid down by it and directions given by it from time to time are not followed. The duty and responsibility cast on AICTE implies that the norms and standards to be set should be such as would prevent isolated development of education in the country.
19. Section 10 of the AICTE Act enumerates various powers and functions of AICTE as also its duties and obligations to take steps towards fulfilment of the same. One such power as envisaged in Section 10(k) is to "grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned."
It is important to see that AICTE is empowered to inspect or cause to inspect any technical institution in clause (p) of Section 10 without any reservation whatsoever. However, when it comes to the question of universities, it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. The inspection may be made or caused to be made of any department or departments only and that too, in such manner as may be prescribed, as envisaged in Section 11 of the AICTE Act.
20. All these vitally important aspects go to show that the Council (AICTE) created under the AICTE Act is not intended to be an authority either superior to or to supervise and control the universities W.A.NOS.650 21 & 1111/2013 and thereby superimpose itself upon such universities merely for the reason that they are imparting teaching in technical education or programmes in any of their departments or units. A careful scanning of the provisions of the AICTE Act and the provisions of the University Grants Commission Act, 1956 in juxtaposition, will show that the role of AICTE vis-a-vis the universities is only advisory, recommendatory and one of providing guidance, thereby subserving the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself. Reference can be made to the judgments of this Court in Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale ((2012) 2 SCC 425), State of T.N. v. Adhiyaman Educational & Research Institute ((1995 4 SCC 104) and Bharathidasan University v. All India Council for Technical Education ((2001) 8 SCC 676).
21. From the above principles, it is clear that AICTE has varied functions and powers under the AICTE Act. It is a specialised body constituted for the purpose of bringing uniformity in technical education all over the country and to ensure that the institutions which are recognised by AICTE are possessed of complete infrastructure, staff and other facilities and are capable of maintaining educational standards for imparting technical education.
24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of AICTE in the field of technical education. Statutes like the present once as well as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law. AICTE is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take W.A.NOS.650 22 & 1111/2013 precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by AICTE. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education, examination and proper infrastructure for betterment of technical educational system.
Association of Management of Private Colleges v. All India Council For Technical Education and Others ((2013) 8 SCC 271)
38. .........Therefore, the definition in Section 2
(h) technical institution in AICTE Act which authorizes the AICTE to do certain things,special care has consciously and deliberately been taken to make specific mention of university, wherever and whenever the AICTE alone was expected to interact with university and its departments as well as constituent institutions and units. It was held after analyzing the provision of Sections 10, 11 and 12 of the AICTE Act that the role of the inspection conferred upon the AICTE vis-a-vis universities is limited to the purpose of ensuring roper maintenance of norms and standards in the technical education system so as to conform to the standard laid down by it with no further or direct control over such universities or scope for any direct action except bringing it to the notice of UGC.... ....It is rightly pointed out from the affidavit filed by UGC as directed by this Court in these cases on the question of affiliated colleges to the university, that W.A.NOS.650 23 & 1111/2013 the affidavit is very mechanical and it has simply and gratuitously without foundation added as technical institutions including affiliated colleges without any legal foundation. In paragraphs 13,14,15 and 19 of the Affidavit filed by the UGC and the assertion made in paragraph 23 is without any factual foundation which reads as under:
"That it is further submitted that affiliated colleges are distinct and different than the constituent colleges. Thus it cannot be said that constituent colleges also include affiliated colleges"....... ......It can only advise the UGC for formulating the standard of education and other aspects to the UGC. In view of the law laid down in Bharathidasan University and Parashavanath charitable Trust cases (supra), the learned senior counsel Dr.Dhavan has rightly submitted for rejection of the affidavit of the UGC, which we have to accept as the same is without any factual foundation and also contrary to the intent and object of the Act.
39. It is also relevant to refer to the exclusion of university from the definition of 'technical institution' as defined under Section 2(h) of the AICTE Act. The Institution means an Institution not being university, the applicability of bringing the university as defined under clause 2(1) of UGC Act includes the institution deemed to be a university under Section 3 of the said Act and therefore the affiliated colleges are excluded from the purview of technical institution definition of the AICTE Act. The submission made on behalf of the colleges which are affiliated to the representative universities which are being run by the appellants in the connected appeals will also come within the purview of the university referred to in the above definition of technical institution. The above interpretation sought to be made by the learned senior counsel and another counsel is supported by the provisions of the UGC Act. Section 12A of the UGC Act clearly speaks of regulation of fees and provisions of donation in certain cases which refers to the phrase affiliation together with its grammatical variation included in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of W.A.NOS.650 24 & 1111/2013 universities. A careful reading of sub-sections (2) (C), (3), (4) and (5) of Section 12 A of the UGC Act makes it abundantly clear about colleges which are required to be affiliated to run the courses for which sanction/approval will be accorded by the university or under the control and supervision of such universities.
Therefore, affiliated colleges to the university/universities are part of them and the exclusion of university in the definition of technical institution as defined in section 2(h) of the AICTE Act must extended to the affiliated colleges to university also, otherwise, the object purpose of the UGC Act enacted by Parliament will be defeated. The enactment of UGC ACT is also traceable to Entry 66 List I. The aforesaid provisions of the UGC Act have been examined by this Court with reference to the provisions of AICTE Act Bharathidasan University's case. Therefore, it has clearly laid down the principle that the role of the AICTE Act is only advise in nature and is confined to submitting report or giving suggestions to the UGC for the purpose of implementing it suggestions maintain good standards in technical education in terms of definition under Section 2(h) of the AICTE Act and to see that there shall be uniform education standard throughout the country to be maintained which is the laudable object of the AICTE Act for which it is enacted by the Parliament.
12. The legal position that emerges, therefore, is that the AICTE is the authority competent to regulate the field of technical education carried on by technical institutes other than those run by the Universities or their component institutes/colleges. When it comes to technical institutes that are affiliated to Universities, the judgment of the Supreme Court in the case of Association of Management of Private Colleges v. All India Council For W.A.NOS.650 25 & 1111/2013 Technical Education and Others ((2013) 8 SCC 271), clarifies that even such technical institutes can only be regulated by the University in question and the AICTE can only function in an advisory role to the UGC in the matter of regulation over the field of technical education carried on through affiliated institutes/colleges. The upshot of these decisions is that when it comes to the regulation of technical education carried on by institutes/colleges affiliated to a university, the power to regulate is with the University in question and is to be exercised in accordance with the directions and guidelines issued by the UGC.
13. In the cases before us, the situation is slightly different. As we have noticed, the University in question- The Calicut University - was relying on the regulations issued by the AICTE to approve the technical institutions and grant affiliation to them. This was probably because as per the UGC (Affiliation of Colleges by Universities) Regulations, 2009, the UGC has mandated the compliance, by the college/institution, with standards fixed, inter alia, by statutory bodies such as the AICTE, as an eligibility condition for the grant of affiliation by the Universities. In the case of colleges managed by registered Societies/Trusts, apart from the requirement of complying with the provisions of the Act, the W.A.NOS.650 26 & 1111/2013 Statutes and the Ordinances, Rules and Regulations of the University, there is also an obligation to follow the Rules, Regulations and Guidelines of the Statutory/Regulatory bodies issued from time to time, as a condition for grant of affiliation. Clauses 2.6 and 3.1 of the said Regulations are extracted hereunder;
2.6. "Statutory/Regulatory body" means a body so constituted by a Central/State Government Act for setting and maintaining standards in the relevant areas of higher education, such as All India Council for Technical Education (AICTE), Medical Council of India (MCI), Dental Council of India (DCI), National Council for Teacher Education (NCTE), Bar Council of India (BCI), etc.;
3.1. The proposed college seeking affiliation, at the time of inspection by the university, shall satisfy the following requirements, or the requirements in respect of any of them prescribed by the Statutory/Regulatory body concerned, whichever is higher:
3.1.1. undisputed ownership and possession of land measuring not less than 2 acres if it is located in metropolitan cities, and 5 acres if it is located in other areas;
3.1.2. administrative, academic and other buildings with sufficient accommodation to meet the immediate academic and other space requirements as specified by the University concerned for each of the higher education course/programme with adequate scope for future expansion in conformity with those prescribed by the UGC/Statutory/Regulatory body concerned, taking care that all buildings constructed in the college are disabled friendly; 3.1.3. academic building sufficient to accomodate the faculties, lecture/seminar rooms, library and laboratories with a minimum W.A.NOS.650 27 & 1111/2013 of 15 sq.ft. per student in lecture/seminar rooms/library and 20 sq.ft. per student in each of the laboratories;
3.1.4. number of teaching and non-teaching staff as per University norms;
3.1.5. adequate civic facilities for essentials like water, electricity, ventilation, toilets, sewerage, etc. in conformity with the nouns laid down by the Central/State PWD;
3.1.6. a library with at least 1000 books, or 100 books in different titles on each subject, whichever is more, of the proposed programmes to include both text books and reference books, besides two journals per subject, along with a book bank facility for students belonging to the Scheduled Castes, Scheduled Tribes and such other sections as may be specified by the UGC from time to time.
3.1.7. Necessary laboratory equipments
as prescribed by the University/
Statutory/Regulatory body concerned, for each of the higher education programmes; 3.1.8. a multi-purpose complex/an auditorium and facilities for sports, canteen, health care, separate common rooms and separate hostels for boys and girls as per the local requirements as decided by the University.
3.1.9. appropriate furniture for lecture/seminar rooms, laboratories, library, faculty rooms, rooms for administrative staff including the Principal, multi-purpose complex/auditorium, common rooms and hostel rooms, and for other facilities;
3.1.10. a duly constituted managing body as specified by the University.
3.2. The college, if not run by the State Government. 3.2.1. shall be managed by a duly constituted and registered Society or Trust;
3.4. The Registered Society/Trust proposing the college shall execute a bond:
3.4.1 to impart instruction only in the subjects and for the courses/programmes in the faculties for which affiliation has been granted by the W.A.NOS.650 28 & 1111/2013 University and shall not seek retrospective affiliation. All such courses/programmes shall follow the syllabi approved by the appropriate academic bodies of the University. 3.4.2 to comply with all the provisions of the Act, the Statutes and the Ordinances, Rules and Regulations of the University framed in this regard;
3.4.3 to follow the Rules, Regulations and Guidelines of the Statutory/Regulatory bodies issued from time to time.
3.4.4 to the effect that the number of teaching posts, the qualification of teaching staff and their recruitment/promotion procedures as prescribed by the UGC and conditions of service shall be in accordance with the Statutes/Ordinance/Regulations of the University/State Government/UGC, and shall ensure imparting of adequate instruction to the students in the courses/programmes of studies to be undertaken by the college and that the Student-Teacher Ratio in the college shall be as per the UGC norms.
3.4.5 to the effect that the members of the teaching and non-teaching staff shall be regularly and fully paid in the pay scales along with applicable allowances asper the pay scales prescribed by the UGC/Central/State Govt. as the case may be, from time to time.
3.4.6. to the effect that appointment of members of the teaching and the non-teaching staff shall be made only on considerations of merit based on qualifications and experience prescribed for them and not by demanding or accepting any donation or other consideration: 3.4.7 to the effect that the college shall obtain the eligibility approval of the appointed teaching staff from the University within three months of affiliation and shall report all changes in the teaching staff and all other changes that may affect the fulfillment of the conditions for affiliation to the University within a fortnight of changes coming into effect.
3.4.8 to the effect that all fees to be charged W.A.NOS.650 29 & 1111/2013 from the students shall be as per the fee structure approved by the University based on the norms of the UGC from time to time; 3.4.9 to the effect that the college shall not collect any capitation fee or donation in any form amounting to corrupt practices from or on behalf of any of its students or their parents/guardians except the prescribed fee and other charges as approved by the University based on the norms of the UGC.
3.4.10 to the effect that no student shall be admitted to any programme of study by the college in anticipation of grant of affiliation or in excess of the number of seats sanctioned per programme of study by the University. 3.4.11 to the effect that the college shall not, without the previous permission of the University, suspend offering an already approved course/programme of study: 3.4.12. to the effect that the academic and welfare activities of the students belonging to the Scheduled Castes, Scheduled Tribes and other disadvantaged groups, including minorities, wherever applicable shall be properly taken care of by the college. 3.4.13. to the effect that all registers and records, including audited statement of accounts, as required to be maintained under the Regulations/Orders of the UGC/University/Government shall be maintained and made available as and when required for inspection:
3.4.14 to the effect that the college shall furnish all such returns and other information as the UGC/University/Government may required to enable it to monitor and judge the performance of the college with regard to maintenance of academic standards and shall take such action as the UGC/University/Government may direct to maintain the same:
14. The UGC Regulations extracted above would clearly W.A.NOS.650 30 & 1111/2013 indicate that while the power to frame independent Regulations to regulate technical education in affiliated colleges/institutions is with the UGC, the UGC itself has chosen to make the AICTE Regulations applicable to the colleges affiliated to the Universities.
In particular, for colleges managed by duly constituted and registered Societies or Trusts, such as that in the instant case, clause 3.4.3 of the UGC (Affiliation of Colleges by Universities) Regulations, 2009, extracted above makes it obligatory for the registered Society or Trust to execute a bond undertaking, inter alia, to "follow the Rules, Regulations and Guidelines of the Statutory/Regulatory bodies issued from time to time". As already noted, the definition of "Statutory/Regulatory body" under the Regulations includes even the AICTE. Thus, a College/Institution managed by a Registered Trust is obliged to give an undertaking that it will follow the Guidelines/Regulations of the AICTE while seeking affiliation with the University in accordance with the UGC (Affiliation of Colleges by Universities) Regulations, 2009. On the facts of the instant cases, this meant that the regulation exercised by the AICTE, acting under Sections 10, 11 and 23 of the AICTE Act, and through the APH framed under the AICTE Regulations, 2012 was one that the institute run by the appellant was bound to accept as a condition for its affiliation to the University. When we W.A.NOS.650 31 & 1111/2013 pointed this out to counsel for the AICTE, he acknowledged this legal position but stated that the AICTE/UGC would have to re-visit these provisions pursuant to the decision of the Supreme Court in the case of Association of Management of Private Colleges (supra).
15. In view of the legal position noticed above, we find ourselves unable to accept the contention of the appellant that by virtue of the authoritative pronouncements of the Supreme Court in the cases referred supra, the AICTE had no power to regulate the affairs of the appellant institute and that consequently the grant or refusal of the EOA was wholly irrelevant to the issue of whether the appellant could run the Engineering institute. The AICTE Regulations did govern the running of the appellant's institute and its entitlement to run the institute during 2012-13 and 2013-14 would have to be examined in the backdrop of the said Regulations. The appellant's institute was obliged, by virtue of the undertaking stipulated in the UGC (Affiliation of Colleges by Universities) Regulations, 2009, to subject itself to the AICTE Regulations.
16. In the appeals before us, we note that there is a challenge against the vires of Clause 3.1 (d) of the APH 2012-13. W.A.NOS.650 32 & 1111/2013 The APH 2012-13 traces its validity to the AICTE Regulations 2012, which have been framed pursuant to the powers conferred on the AICTE under S.23 of the AICTE Act read with Sections 10 and 11 of the said Act. Apart from conferring a power to frame Regulations (S.23), S.10 of the Act makes it 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 maintenance of standards. This being the case, we do not see any legal infirmity in Clause 3.1. (d) of APH 2012-13 itself, after 27.09.2012 - the date on which the 2012 Regulations were notified and came into force, since it was framed in exercise of a specific power given under the Act to the Council. The pleadings in the writ petitions and the writ appeals would indicate that the appellant is essentially challenging the applicability of the said clause to the applications submitted by it for the years 2012-13 and 2013-14. In this connection, it is relevant to note that Clause 3.1 (d), though introduced in the APH 2012-13 before the date specified for consideration of applications for EOA for the year 2012-13, the 2012 Regulations, that authorised the prescription of conditions of approval through the APH, were notified and came into force only with effect from 27.09.2012. It is only from that date, therefore, that the said clause obtained legal sanctity, and could legally operate, to determine the W.A.NOS.650 33 & 1111/2013 validity of an application submitted by the appellant. For the year 2012-13, up to 27.09.2012, the APH could not have contained a Clause similar to Clause 3.1 (d) that prescribed a condition for approval. This was because the earlier Regulations of 2011 authorised the council to publish only an APH that dealt with the procedure to process the applications of Institutions and/or promoters. The authorization with regard to prescription of conditions of approval through the APH was not there. Clause 3.1
(d) of APH 2012-13, to the extent it incorporated a new condition for grant of approval, could not, therefore, have been pressed into service while considering the application for EOA submitted by the appellant for the year 2012-13. The application for EOA submitted by the appellant for the year 2012-13 had, therefore, to be considered in the light of the provisions of the APH as they stood, without the clauses therein that incorporated conditions for the grant of approval. Viewed in that light, the appellant was entitled to get an EOA for the year 2012-13 notwithstanding the fact that a charge sheet was issued by the CBI against the Chairman of the Trust. The AICTE shall, accordingly, consider the grant of EOA for the year 2012-13 to the appellant, if their application is otherwise in order and the institute in question satisfies the requirements for grant of EOA in the APH as it stood prior to the amendment of W.A.NOS.650 34 & 1111/2013 clause 3.1(d).
17. The application of the appellant for EOA for the year 2013-14 was, however, rightly refused based on the provisions of the APH as they stood at the time of consideration of the applications for EOA. This is because, although the appellant has a case that the Chairman of the Trust, against whom the CBI had filed a charge sheet, had resigned from the Trust, the provisions of the APH clearly indicate that the disqualification incurred is for the institution concerned that applies for the EOA. Hence, the charge sheet against the Chairman had the effect of bringing in a disqualification for the Trust of which he was the Chairman and, consequently, for its institute that was claiming the EOA. We therefore see no reason to interfere with the judgement of the learned single judge to the extent it upholds the rejection by the AICTE of the application for EOA submitted by the appellant for the year 2013-14.
18. In view of our findings on the various issues raised in these writ appeals, we dismiss W.A.No.1111/2013 and partly allow W.A.No.650/2013, without any order as to costs, by summarizing our findings as follows;
W.A.NOS.650 35 & 1111/2013
(i) The upshot of the decisions of the Supreme Court in the cases of Bharathidasan University's case (supra), Parshvanath Charitable Trust's case (supra) and All India Council For Technical Education's case (supra) is that when it comes to the regulation of technical education carried on by institutes/colleges affiliated to a university, the power to regulate is with the University in question and is to be exercised in accordance with the directions and guidelines issued by the UGC.
(ii) The UGC (Affiliation of Colleges by Universities) Regulations, 2009, clearly indicates that while the power to frame independent Regulations to regulate technical education in affiliated colleges/institutions is with the UGC, the UGC itself has chosen to adopt the Regulations of the AICTE in the exercise of the said power as adverted to in paragraph 14 above. It is therefore that the appellant's institute became obliged to abide by the AICTE Regulations as a condition for obtaining affiliation to the Calicut University.
(iii) There is no legal infirmity in Clause 3.1. (d) of APH 2012-13, after 27.09.2012 - the date on which the 2012 Regulations were notified and came into force, since it was framed in exercise of a specific power given under the Act to the Council. Post 27.09.2012, therefore, the said provision cannot be said to be ultra vires the powers of the Council under the AICTE Act. W.A.NOS.650 36 & 1111/2013
(iv) The situation prior to 27.09.2012, however, is different. Clause 3.1 (d), though introduced in the APH 2012-13 before the date specified for consideration of applications for EOA for the year 2012-13, the 2012 Regulations, that authorised the prescription of conditions of approval through the APH, were notified and came into force only with effect from 27.09.2012. It is only from that date, therefore, that the said clause obtained legal sanctity, and could legally operate, to determine the validity of an application submitted by the appellant.
(v) The application for EOA submitted by the appellant for the year 2012-13 had, therefore, to be considered in the light of the provisions of the APH as they stood, without the clauses therein that incorporated conditions for the grant of approval. Viewed in that light, the appellant was entitled to have its application for EOA considered for the year 2012-13, as for the earlier year (2011-12), notwithstanding the fact that a charge sheet was issued by the CBI against the Chairman of the Trust. We direct the AICTE to consider the grant of EOA to the appellant subject to the institute in question satisfying the requirements for grant of EOA in the APH as it stood prior to the amendment of clause 3.1(d).
(vi) The application of the appellant for EOA for the year W.A.NOS.650 37 & 1111/2013 2013-14 was rightly refused based on the provisions of the APH as they stood at the time of consideration of the applications for EOA. This is because, although the appellant has a case that the Chairman of the Trust, against whom the CBI had filed a charge sheet, had resigned from the Trust, the provisions of the APH clearly indicate that the disqualification incurred is for the institution concerned that applies for the EOA.
K.M.JOSEPH JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE prp