Telangana High Court
Joseph Sriharsha Mary Indraja ... vs Jawaharlal Nehru Technological ... on 11 December, 2018
Author: V Ramasubramanian
Bench: V Ramasubramanian
*IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF AN-
DHRA PRADESH
* HON'BLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HON'BLE SRI JUSTICE N. BALAYOGI
+W.P.Nos.18954, 19819, 19983, 19986, 20126, 21201, 21865,
22231, 22240, 22831, 22851, 22984 and 23573 of 2017
% Date: 11-12-2018
W.P.No.18954 of 2017 and batch
1. Dr. V.R.K. Educational Society, Regd. No.6383/1994,
Rep. by its Treasurer, Mohd. Shah Alam Rasool Khan,
10-3-307/309, Shah Manzil, Masab Tank, Hyderabad
2. Dr. V.R.K. Womens College of Engineering & Technology,
Aziznagar, Moinabad, R.R. District, Rep. by its
Correspondent Mohd. Shah Alam Rasool Khan
3. Mohd. Shah Alam Rasool Khan S/o Dr. Mohd. Vizarath
Rasool Khan, Aged 37 years, R/o. 10-3-307/309,
Shah Manzil, Masab Tank, Hyderabad
... Petitioners
Vs.
1. Jawaharlal Nehru Technological University, Hyderabad,
Rep. by its Registrar, Kukatpally, Hyderabad
2. The Telangana State Council for Higher Education,
Masab Tank, Hyderabad, Rep. by its Member Secretary
3. The Convenor (TSEAMCET-Admissions) 2017,
C/o The Telangana State Council for Higher Education,
Masab Tank, Hyderabad
4. The Convenor (TSPGCET-Admissions) 2017,
C/o The Telangana State Council for Higher Education,
Masab Tank, Hyderabad
5. The All India Council for Technical Education,
New Delhi, Rep. by its Member Secretary
6. The State of Telangana, Rep. by its Principal Secretary,
Higher Education Department, Secretariat, Hyderabad
... Respondents
2
VRS, J & NBY, J
W.P.Nos.18954 of 2017 & batch
! Counsel for the Petitioner : Mr. S. Sri Ram
Mr. Sri Charan Telaprolu
Mr. Tarun G. Reddy
^ Counsel for Respondents : Mr. A. Abhishek Reddy, S.C. for
JNTU
Mr. K. Ramakanth Reddy,
G.P. for Higher Education (TG)
< Gist:
> Head Note:
? Cases referred:
1) 1964 AIR 1823 SC
2) (2003) 9 SCC 564
3) (2001) 8 SCC 676
4) (2013) 8 SCC 271
5) 2000 (2) SCR 1234
6) 2004 (3) LAWS (SC) 20
7) (2009) 7 SCC 751
8) (2011) 4 SCC 606
9) (2011) 15 SCC 242
10) (2015) 11 SCC 291
11) 2011 MLJ (2) 641
12) (2007) SCC 1 386
13) AIR 1958 SC 956
14) (2005) 6 SCC 537
15) 2008 (2) MLJ 593
16) (2010) 8 SCC 49
3
VRS, J & NBY, J
W.P.Nos.18954 of 2017 & batch
HON'BLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HON'BLE SRI JUSTICE N. BALAYOGI
W.P.Nos.18954, 19819, 19983, 19986, 20126, 21201, 21865,
22231, 22240, 22831, 22851, 22984 and 23573 of 2017
COMMON ORDER:(per V. Ramasubramanaian, J) Minority and Non-minority Educational Institutions offering Professional Graduate and Post Graduate Courses have come up with these writ petitions challenging some of the Regulations notified by the Jawaharlal Nehru Technological University (JNTU) in Decem- ber 2016, under the title Jawaharlal Nehru Technological University Affiliation Procedure and Regulations, for the Academic Year 2017- 2018.
2. We have heard Mr. S. Sri Ram, Mr. Sri Charan Telaprolu, and Mr. Tarun G. Reddy, learned counsel for the petitioners and Mr. A. Abhishek Reddy, learned standing counsel for the University.
3. The immediate provocation for the petitioners to challenge the Regulations issued by the University was that some of the Col- leges were put by the University under "No Admission Category", for some others, the University granted affiliation for an intake, lesser than the intake permitted by the AICTE and in respect of two col- leges, the University rejected affiliation on the ground that the policy considerations of the State Government did not permit the creation of new courses or new colleges in respect of certain disciplines. Therefore, the petitioners have come up with the above writ petitions challenging not only the Regulations but also the orders passed by 4 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch the University (i) either putting them under No Admission Category, or (ii) rejecting affiliation for some of the courses or (iii) granting af- filiation for a reduced intake. The reason why the petitioners chal- lenge the Regulations, is that the orders directly affecting the peti- tioners were purportedly passed on the basis of some of the Regula- tions.
4. Before proceeding further, we must bring on record one more fact namely that the JNTU issues a set of Regulations, in exer- cise of the power conferred by Section 29 of the Jawaharlal Nehru Technological University Act, 2008 (JNTU Act), year after year. Therefore, the impugned Regulations issued in December, 2016 in respect of the academic year 2017-2018, were replaced by another set of Regulations issued in December, 2017 in respect of academic year 2018-2019. These Regulations issued in respect of the aca- demic year 2018-2019 have also become the subject matter of chal- lenge in a fresh batch of writ petitions filed in the year 2018.
5. In fact, when the present batch of writ petitions came up at the commencement of the academic year 2017-2018, this Court passed limited interim directions directing the University to recon- sider the cases of some of the petitioners at least in respect of some of the courses, without putting against the petitioners some of the norms, which were patently irrational. Pursuant to those interim or- ders, many of the petitioners in this batch of writ petitions got orders of affiliation for the academic year 2017-18, for the courses for which they deserved affiliation.
5
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch
6. Therefore, in the natural course of things, we thought that the present batch of writ petitions had become infructuous in view two things namely (i) that the impugned Regulations have now been replaced by a new set of Regulations, which have also come under challenge in a new batch of cases; and (ii) that by virtue of the in- terim orders passed in some of these writ petitions, many of the peti- tioners were also granted affiliation and nothing more remained for the petitioners in respect of the academic year 2017-18.
7. But it was pointed out by the learned counsel appearing for the petitioners and rightly so, that when the very same set of Regula- tions are issued year after year with some cosmetic changes and when it is not possible for this Court to finally decide all the writ peti- tions year after year within the time schedule available for comple- tion of admissions, it may not be wise to close the writ petitions as having become infructuous. At some point of time, in respect of some academic year, the validity of these Regulations have to be decided so that future litigation can be arrested. If each one of these Regulations which are under challenge, are upheld in one batch of cases, then there can be no challenge to the same or similar set of Regulations in future and to the action taken on the basis of the same or similar set of Regulations year after year. This will ensure the arrest of future litigation. On the contrary, if any of these Regula- tions is held ultra vires, the University will be prohibited from issuing the same or similar Regulations in future. Therefore, despite the fact that the academic year 2017-2018 is already over and despite the 6 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch fact that the outcome of these writ petitions will not really have any substantial impact either upon the colleges or upon the University, we have been persuaded to undertake this exercise, so as to avoid future litigation on the very same set of Regulations. Regulations under challenge:
8. The Regulations under challenge in these writ petitions are Regulations 3.25, 3.4, 5.2, 5.3, 5.4, 7.1 to 7.11 and 12.5. Apart from these Regulations, Annexure-I relating to Faculty Selection Commit- tee and the Guidelines for Adjunct Faculty are also under challenge. While Regulations 5.2, 5.3 and 5.4 of the impugned Regulations in relation to the year 2017-2018 are not adopted in relation to the cur- rent academic year 2018-2019, all other impugned Regulations are adopted either with some modifications in substance or with a differ- ence in the language. In order to highlight what these impugned Regulations provide for and as to whether similar provisions are available in the Regulations for the current academic year, we ex- tract below in a tabular column, a comparison between the im- pugned Regulations relating to the year 2017-18 and the corre- sponding Regulations relating to the year 2018-19. S.No. JNTU Regulations for 2017-18 JNTU Regulations for 2018-19
1. 3.25 Affiliation to PG programs: The 3.27 Affiliation to PG programs:
PG program(s) proposed to be offered The PG program (s) proposed to be offeredin a Department shall be af-
in a Department shall be affiliated, sub-
filiated, subject to the grant of affilia- ject to the grant of affiliation of the UG program in the concerned department tion of the UG program in the con-
cerned departments, unless the Col-
unless the College/ Institution is a stan- dalone PG college as approved by lege/Institution is a standalone PG AICTE/PCI/other statutory bodies. College/Institute as approved by AICTE/ PCI/ other statutory bodies.
2. 3.4 The College shall follow the norms 3.4 The College/Institute shall follow for intake and number of courses at UG the norms for intake and number of level and PG level as approved by the courses at UG level and PG level as 7 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch University, the intake in no case shall approved by the University, the exceed those sanctioned by intake in no case shall exceed those AICTE/PCI/other statutory bodies for sanctioned by AICTE for courses that academic year. like B. Tech, M. Tech, MBA, MCA etc.; Pharmacy Council of India (PCI) for Pharmacy Courses like B. Pharmacy, M. Pharmacy, Pharma-D, Pharma-D (PB) etc., for that aca-
demic year. The University may consider any variation in intake after obtaining approval from AICTE/PCI/State Government/ other statutory bodies, prior to admissions for the current academic year. The Institution shall follow the regula-
tions and norms of the University and will strictly adhere to the intake approved by the University and the courses for which affiliation is granted. The University will follow the approvals granted by AICTE for courses like B. Tech, M. Tech, MBA, MCA etc., Pharmacy Council of India (PCI) for Pharmacy courses like B. Pharmacy, M. Pharmacy, Pharma-D, Pharma-D (PB) etc. The grant of approval by the relevant sta-
tutory bodies does not automatically entitle the institutions for the grant of affiliation for the same intake, but is subject to the satisfaction of the Uni-
versity that all the parameters for grant of affiliation are met by the institution.
3. 5.2 A new College proposing to offer Similar provision not present in technical education with the University the 2018 Regulations affiliation shall first seek a No Objec-
tion Certificate (NOC) from the Univer-
sity before applying to AICTE/PCI/other Statutory body.
4. 5.3 The permission for establishing Col- Similar provision is not present in leges and starting of new programs in the 2018 Regulations the existing colleges shall be considered by the University as per the prior-
ity/policy of the State Government if any.
5. 5.4 The University shall not grant NOC Similar provision not present in for starting a PG program without af- the 2018 Regulations filiation of UG program in the con-
cerned discipline except for MBA and MCA or in a standalone College.
6. 7.1 to 7.11 contain detailed procedure 7.1 to 7.10 contain almost identical for evaluation of application for af- prescriptions filiation
7. 12.5 Non fulfilment of AICTE re- 12.5 Non fulfillment of AICTE/ quirements based on which Approval PCI/Other Statutory Bodies re- is granted quirements as the case may be based on which approval is If the information provided by the Col- granted 8 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch lege/Institution to AICTE is found to be If the Information provided by the false during FFCA inspection, the Col- college/Institute to AICTE/PCI/ Oth- lege/Institution shall be liable to the er Statutory Bodies is found to be following action by the University 1. false during FFCA inspection or Appraisal to AICTE and the concerned there is a large discrepancy between program/course shall be recommended the data uploaded to the University for admission in the current academic and the one uploaded to the statutory year only after clearance from AICTE is authorities by the college/ Institute, obtained by the College/Institution be- they shall be liable to the following fore the completion of admissions. action by the University.
1. The University may reject the ap-
plication for grant of affiliation for that particular course or program.
2. Appraisal to AICTE/ PCI/ Other Statutory Bodies and the concerned programme/course shall be recom-
mended for admission in the current academic year only after clearance from AICTE is obtained by the col-
lege/institute before the completion of admissions.
8. Annexure I: Faculty Selection Com- Annexure I: Faculty Selection mittee Committee Minority Institutions: The relaxation for B. Minority Institutions:
minority institutions can be availed as prescribed by UGC/State Govt. from The relaxation for minority institu- time to time. The present relaxation of tions can be availed as prescribed by Vice-Chancellor nominee as per UGC UGC/State Govt. from time to time. regulations 2010 is as follows: In case The present relaxation of Vice- of colleges notified/declared as minority Chancellor nominee as per UGC educational institutions, two nominees regulations 2010 is as follows:
of the chairpersons of the college, from out of a panel of five names, preferably In case of college/Institutes notified/ from minority communities, recom- declared as minority educational in- mended by the Vice-Chancellor of the stitutions, two nominees of the chair- affiliating University from the list of persons of the college/institute, from experts suggested by the relevant statu- out of a panel of five names, prefera- tory body of the College, of whom one bly from minority communities, rec- should be a subject expert. The minority ommended by the Vice-Chancellor Institution shall upload the certificates of the affiliating University from the of qualification, experience and ap- list of experts suggested by the rele- pointment letters in the faculty registra- vant statutory body of the col- tion portal of the University along with lege/institute, of whom one should be their joining report and obtain a regis- a subject expert. tration number which shall be used for further correspondence. It is 37 open for The minority institution shall upload the University to verify qualification the certificates of qualification, ex- and experience of the appointed faculty perience and appointment letters in including verification of geniuses of the the faculty registration portal of the certificates. University along with their joining report and obtain a registration number which shall be used for further correspondence. It is open for the University to verify qualification and experience of the appointed faculty including verification of genuineness of the certificates.9
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch
9. Guidelines for Adjunct faculty:
The University will allow the ap-
pointment of adjunct faculty in af-
filiated colleges to the extent of 20% of the faculty required. The guide- Not present in the 2018 Regula-
tions.
lines for the appointment of adjunct faculty are as follows: The education qualifications as prescribed by the AICTE for adjunct faculty will be applicable.
In the case of candidates working in an organisation/industry he/she shall produce NOC from the parent or-
ganisation to act as adjunct faculty and to fulfil the norms as follows: (i) Presence of the adjunct faculty must be as per the time table and also he/she should be present during the inspection by the Univer-
sity/AICTE/UGC/Government Agencies; (ii) The adjunct faculty shall have 10 years of experience and he/she should not be more than 70 years of age by 31st December of that Academic year; (iii) Adjunct faculty must be a member of at least two professional bodies and also his/her services and contributions should be recognised by at least one professional body in his/her field.
He/She must be an accomplished professional in his/her chosen field of discipline, comparable at at least the top one third of the regular fac-
ulty in professional expertise and reputation in their own fields and organisations. In case of candidates from an industry, his/her domain knowledge should be a part of cur-
riculum with significant value.
What the impugned Regulations prescribe and why they are challenged:
9. Regulations 3.25 and 5.4 are challenged, because these Regulations mandate that a Post Graduate programme proposed to be offered in a Department shall not be affiliated, unless the Under Graduate program in the concerned department has been granted 10 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch affiliation. The only exception to this rule is that if the institution is a standalone Post Graduate Institution or if the institution is offering MBA or MCA, the grant of affiliation for a P.G. programme need not depend upon the grant of affiliation for U.G. programme.
10. These two Regulations are challenged by the petitioners on the ground that they are repugnant to the Regulations of AICTE.
According to the petitioners, the Approval Process Handbook issued by AICTE does not contain such a restriction and that therefore, the restriction imposed by the University is repugnant and also irrational, especially when standalone P.G. Institutions are exempt from the applicability of the provision.
11. Regulation 3.4 as it stood when these writ petitions were filed (2017-18) and as it now stands for the current academic year (2018-19), enables the University to grant affiliation for a lesser in- take than the intake permitted by AICTE or Pharmacy Council of In- dia or other statutory bodies. This regulation is opposed on the ground that the University cannot act like a superior body to other statutory bodies such as AICTE, Pharmacy Council of India etc., and that the power to grant affiliation for a reduced intake arrogated to itself by the University, directly encroaches into the territory occupied by the statutory bodies like AICTE.
12. Regulations 5.2 and 5.3 mandate an institution which pro- poses to start a new college, to obtain a No Objection Certificate (NOC) from the University before making an application to statutory bodies such as AICTE/PCI etc. These Regulations enable the Uni- 11
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch versity to take a call on the request for NOC, based upon the policy considerations of the State Government. Therefore, these Regula- tions are opposed on the ground that once a central body is vested with the power to grant approval for starting a new college or a new course, there is no scope for the policy considerations of the State to interfere with the same indirectly through the University. The re- quirement of a NOC, according to the petitioners, is repugnant to the Regulation 4.14 of the AICTE Approval Regulations 2012 and the PCI Regulations. It is the contention of the learned counsel for the petitioners that the State Government as well as the Affiliating Uni- versity, are required to participate in the consultation initiated by AICTE and hence, they cannot reserve a veto power for themselves outside the consultative process. The Regulations conferring a pow- er upon the University and upon the State Government to have a fi- nal say in the matter, by requiring a NOC, is, according to the peti- tioners, repugnant to the Regulations issued by the Central Bodies.
13. Regulations 7.1 to 7.11 oblige the institutions to apply on- line annually as per the schedule prescribed by the University. The applications are to be verified by FFCA followed by a visit of the FFCA with a prior notice of 48 hours in case of annual inspections. The University may also conduct surprise inspections without prior notice. These regulations also empower the University to grant af- filiation, course-wise on the basis of the recommendations of the Standing Committee. Based upon the recommendations of the Standing Committee, the University is obliged under the Regulations 12 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch to communicate deficiencies, if any, to the college, as per the time schedule. These Regulations are opposed on the ground that they are used by the University to fix their own norms of equivalence in the qualifications fixed for faculty members, thereby belittling the sta- tus of the expert statutory bodies such as AICTE, PCI etc. Therefore, these Regulations are assailed as being guilty of overreach. Regula- tion 12.5 stipulates that if the information provided by the college to AICTE is found to be false during FFCA inspection, the University may apprise AICTE about the same and the University will grant af- filiation only after equivalence is obtained from AICTE before the completion of the admissions. The objection of the petitioners to this regulation is that the time frame followed by the University provides very little space or scope for the colleges to take up the matter with AICTE and hence, the colleges get punished even before the griev- ances of the colleges can be redressed by the AICTE.
14. Annexure-I of the impugned regulations is challenged to the extent that it mandates the nominees of the University to partici- pate in the process of selection of faculties of the colleges. Such of those petitioners who belong to the religious minority, contend that the prescription contained in Annexure-I is ultra vires Article 30 (1) of the Constitution.
15. Annexure-III to the regulations contains guidelines for the appointment of adjunct faculties. As per these guidelines, the affili- ated colleges are entitled to appoint adjunct faculties to the extent of twenty percent of the faculty requirement but the adjunct faculties (1) 13 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch should hold the qualifications prescribed by AICTE (2) should pro- duce NOC from their parent organization, in case they are working in some organization/industry (3) should be present at the time of in- spection by the UGC/University/AICTE/ Government agencies (4) should have atleast 10 years of experience (5) should not be over 70 years of age as on the 31st day of December of the relevant year (6) should be a member of at least two professional bodies, one of whom should have recognised his services and contributions (7) should be an accomplished professional in his chosen field of disci- pline, comparable to at least the top one-third of the regular faculty and (8) should have domain knowledge, if he is from an industry, with such domain knowledge forming part of the curriculum with sig- nificant value.
16. The guidelines for appointment of adjunct faculties is chal- lenged on the ground that they are repugnant to the norms stipu- lated by the AICTE and that some of these prescriptions bear no nexus to the object of appointment of adjunct faculties.
17. Apart from challenging some of the regulations, the peti- tioners also have a few other grievances. One is that the University is not adhering to the time frame for the commencement of the an- nual process of renewal of affiliations, strictly in accordance with the law declared by the Supreme Court in Parshvanath Charitable Trust v. AICTE (2013 (5) SCC 385). The second grievance is the conduct of surprise inspections and the reliance placed upon the findings of surprise inspection, without reference to the findings of 14 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch the regular FFCA. The third grievance of the petitioners is to the re- jection of affiliation based on the performance of the students of the institutions in the previous academic years. Another grievance of the petitioners is that the University is insisting on the availability of fac- ulties, library and laboratory even for the second, third and fourth year of the additional course or additional intake even when the col- lege is imparting study only in the first year of the course. Discussion and Analysis:
18. Before proceeding to analyze each of the regulations un- der challenge and the grounds on which they are assailed, it may be necessary first to have a look at the AICTE Act, the Regulations is- sued by AICTE and the Approval Process Handbook issued year af- ter year. It is also necessary to trace the source of power for the uni- versity to frame regulations and then find out if there is any repug- nancy.
AICTE Act, 1987, AICTE Regulations, A.P. Education Act, 1982, JNTU Act, 1972 and the role of AICTE vis-à-vis the role of the University
19. The All India Council for Technical Education is an institu- tion that was established even before India attained independence. It was established in the year 1945, but it gained statutory sanction only under the AICTE Act, 1987. But even before the advent of the AICTE as a statutory body, the State of A.P. had the A.P. Education Act, 1982, Section 6 of which empowered the Government to estab- 15
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch lish a Board known as State Board of Technical Education and Training.
20. The Jawaharlal Nehru Technological University was estab- lished under State Act No.16/1972, much before the enactment of A.P. Education Act, 1982 and the enactment of the AICTE Act, 1987. Despite having been issued at least 15 years before the advent of the AICTE Act, section 4 of the Jawaharlal Nehru Technological University Act, 1972 made it clear that the ob- jects of the University enlisted therein would be subject to any law as may be made by parliament as to coordination and de- termination of standards in institutions of higher education or research and scientific and technical institutions. Under Sec- tion 4(1), the objects of JNTU were made subject to such direc- tions as may be given by or on behalf of the Central Govern- ment. Section 27 of the JNTU Act empowers the Executive Council of the University and the Academic Senate to make regulations, re- lating to matters that are required to be provided for by the regula- tions.
21. But the JNTU Act, 1972 was repealed and replaced by the Jawaharlal Nehru Technological Universities Act, 2008. The primary reason as to why a new Act was passed was that the State Govern- ment wanted to restructure the JNTU into four different universities. Section 4 of the 2008 Act also made the objects of the universities subject to any law as may be made by the parliament as to coordina- tion and determination of standards. Similar to Section 27 of the 16 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch 1972 Act, Section 29 of the 2008 Act also empowered the Executive Council and the Academic Senate to make regulations consistent with the provisions of the Act, the Statute and the ordinances, for all or any of the other matters which are required to be provided for by the regulations.
22. The All India Council for Technical Education, as we have pointed out earlier, was set up in 1945 as a National Expert Body to advice the Central and State Governments for ensuring the Coordi- nated Development of Technical Education in accordance with ap- proved standards. After the mushroom growth of private Engineer- ing Colleges and Polytechnics and the growing erosion of standards, the Council felt it necessary that it should be vested with statutory powers to regulate and maintain standards of Technical Education in the country. Therefore, a National Working Group was set up in No- vember, 1985. On the basis of the recommendations made by the National Working Group, the AICTE Act, 1987 was enacted. Section 23 (1) of the AICTE Act empowers the Council to make regulations not consistent with the provisions of the Act and the Rules, generally to carry out the purposes of the Act. Section 10 (1) of the Act enjoins upon the Council, the duty to take all such steps as may be neces- sary for ensuring coordinated and integrated development of Tech- nical and Management Education and maintenance of standards. Clause (i) of sub-section (1) of Section 10 empowers the Council to lay down norms and standards for courses, curricula, physical and instrumental facilities, staff pattern, staff qualifications, quality in- 17
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch structions, assessment and examinations. Clause (o) empowers the Council to provide guidelines for admission of students to Technical Institutions and Universities imparting technical education. Clause
(k) of sub-section (1) of Section 10 empowers the Council to grant approval for starting new Technical Institutions and for introduction of new courses or programmes in consultation with the agencies concerned.
23. It will be of interest to note that sub-section (2) of Section 23, which enlists the matters that could be provided for in the Regu- lations framed by the AICTE, does not include any of the powers in- dicated in Section 10(1). Clauses (a) to (e) of sub-section (2) of Sec- tion 23 deal with the manner in which the meetings of the Council are to be regulated, the procedure for conducting business at the meetings of the Council, the terms and conditions of service of offi- cers and employees of the Council, the constitution and powers of the Board of Studies etc. But sub-section (2) of Section 23 makes it clear that the items listed therein are without prejudice to the gener- ality of the powers to make Regulations under sub-section (1), for carrying out the purposes of the Act. This is why Regulations are issued by AICTE in exercise of the powers conferred by Section 23 (1) read with the relevant clauses of sub-section (1) of Section 10.
24. The AICTE Act is to be traced to entry 66 of List-I of the Seventh Schedule to the Constitution. The JNTU Act and the Regu- lations issued by the University can be traced to entry 25 of List-III. 18
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch
25. Whenever a contention of repugnancy between a Central Act traceable to Entry 66 of List-I and a State Act traceable to Entry 25 of the List III is raised, the primary duty of the Court should be to see whether both Legislations could survive without detriment to or destruction of the other.
26. In R. Chitralekha v. State of Mysore1, the Constitution Bench of the Supreme Court pointed out that the question regarding the impact of Entry 66 of List-I and Entry-25 of List-III must be de- termined by a reading of the Central Act and the State Act conjointly. The Court pointed out that a State Law providing for such stan- dards, having regard to Entry 66 of List-I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating as to wipe out or appreciably abridge the Central field and not otherwise. The Court also pointed out that if a State law prescribes higher percentage of marks for extra curricular activi- ties in the matter of admissions to colleges, it cannot be said that it would be encroaching on the field covered by Entry 66 of List-I.
27. The decision of the Supreme Court in R. Chitralekha was followed in several cases including the one in State of Andhra Pra- desh v. K. Purushotham Reddy2. The decision in K. Purushotham Reddy arose under very peculiar circumstances. The State of An- dhra Pradesh enacted in the year 1986, an Act known as Andhra Pradesh Commissionerate of Higher Education Act, 1986. The con- stitutional validity of the said Act was questioned on the ground of 1 1964 AIR 1823 SC 2 (2003) 9 SCC 564 19 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch lack of legislative competence, in view of the University Grants Commission Act, 1956. Though a Full Bench of this Court rejected the challenge, the Supreme Court declared the Act as unconstitu- tional, by its judgment in Osmania University Teachers Associa- tion v. State of Andhra Pradesh (1987 (4) SCC 671). Thereafter, the Government of Andhra Pradesh enacted the Andhra Pradesh State Council of Higher Education Act, 1988. This Act was declared as unconstitutional by a Bench of this court, on the same premise on which the 1986 Act was declared by the Supreme Court as unconsti- tutional. When the matter was carried to the Supreme Court, a Two Member Bench doubted the correctness of the decision in Osmania University Teachers Association, and hence, the matter landed before a Three Member Bench. While rejecting the challenge to the State Act, the Supreme Court followed the decision in R. Chi- tralekha and pointed out that when a State Act is in aid of the Par- liamentary Act, the same would not entrench upon the later. There- fore, keeping these principles in mind, let us now take a look at the AICTE Regulations around which the present controversy revolves. Amended Regulations of AICTE
28. Unfortunately, AICTE has been issuing new sets of Regu- lations or Amendments to the existing Regulations once in a couple of years, leading to a lot of confusion. There were one set of Regula- tions known as All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations, 2010, notified in the Government of India Gazette on 10.12.2010. Subsequently, they 20 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch were amended by the First Amendment Regulations of the year 2011 notified on 30.09.2011. But in supercession of these Regula- tions, a new set of Regulations known as All India Council for Tech- nical Education (Grant of Approvals for the Technical Institutions) Regulations 2012, were notified on 27.09.2012. But these Regula- tions were superseded by a new set of Regulations in the year 2016, notified on 30.11.2016. Since the batch of cases on hand relate to the academic years 2017-18, we shall take the Regulations of the year 2016 as the basis.
29. Regulation 4.1 of the 2016 Regulations requires prior ap- proval of the AICTE for setting up new Technical Institutions offering Technical Programs at the Diploma/Post Diploma/Degree/Post Graduate Degree level. Regulation 4.2 requires existing institutions to seek prior approval- (1) for Extension and (2) for increase in in- take and various other things. Regulation 4.3 states that no NOC shall be required from the Affiliating University/Board/State Govern- ment, for reduction of intake and the closure of Second Shift Courses. Regulation 4.3 reads as follows:
"4.3 - No NOC from Affiliating University/Board/State Govern- ment/UT shall be required for reduction in intake to Non-Zero in- take and closure of Second Shift Courses."
30. Similarly, Regulation 4.4 of the 2016 Regulations states that even for the closure of PGDM Courses, NOC from Affiliating University is not necessary, though an inspection by the Expert Visit Committee shall be conducted.
31. Regulation 4.11 empowers the Council to publish, from time to time, an Approval Process Hand Book, detailing the docu- 21
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch ments to be attached to the application, the fee to be remitted, norms and standards, requirements and procedure by which the ap- plications are to be processed. Regulation 4.12 mandates that the applications received under Regulation 4.1 or 4.2 shall be processed as per the procedures, norms and standards prescribed in the Ap- proval Process Hand Book as notified by the Council from time to time in addition to the existing Central, State and Local laws.
32. Regulation 4.15 requires all applications for setting up new institutions, to be made online through the AICTE Web Portal. Upon an application being so made, a unique User ID will be allotted to each new applicant.
33. All applications under Regulation 4.1 and 4.2 are to be made online, using the Unique User ID, by remitting the prescribed fee through AICTE's payment gateway on the Web Portal.
34. Regulation 4.18 requires the State Government and the Af- filiating University to forward their views on the applications received under Regulation 4.1, supported by valid reasons along with the perspective plan of the State within 21 days of receipt of the applica- tions. The views expressed by the State Government and the Affiliat- ing University will be taken into account under Regulation 4.18 by the Regional Committee for processing the application further.
35. Regulation 4.19 of the 2016 Regulations contains a very important departure from the process that prevailed until the year 2012. Regulation 4.19.a reads as follows:
"There is no scrutiny for applications applied under 4.2. (a) and (f), as the processing is based on self-disclosure. If 22 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch there is "Zero Deficiency", then the system shall allot the in- take applied for, as per the Approval Process Handbook."
36. As we have stated earlier, a distinction is maintained be- tween the applications made under the Regulation 4.1 for setting up new Technical Institutions and the applications made under Regula- tion 4.2 for extension of approval. Whenever an application is made under Regulation 4.2, it is processed only on the basis of the self disclosure made by the institution. This is made clear by Regulation 4.19.a and further reiterated by a part of Regulation 4.21, which reads as follows:
"4.21.
For institutions applied under Clause 4.2 (b), (c), (d), (g), (h), (i),
(j) and (k) of these Regulations, the Scrutiny Committee shall process the proposals based on the information/documents pro-
vided by the applicant.
For Institutions applying under Clause 4.2 (e), (l) and (m) of these Regulations, an Expert Visit Committee shall be conducted to the Institutions."
37. Thus in a majority of cases falling under Regulation 4.2, there is not even an inspection by the Expert Visit Committee. The applications will be processed solely based upon the self disclosure made by the institutions.
38. Regulation 4.30 mandates that Institutions other than Mi- nority Institutions shall appoint teaching staff/ Principal/ Director and other technical supporting staff and administrative staff strictly in ac- cordance with the methods and procedures prescribed by the con- cerned Affiliating University/Board particularly with reference to se- lection procedures and selection Committees. Regulation 4.32 makes it clear that a Technical Institution shall not be allowed to par- 23
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch ticipate in the Counselling and admission process, without the prop- er approval of both the AICTE and Affiliating University.
39. In view of the fact that the amended Regulations of the year 2016, which primarily followed the Regulations of the year 2012, enable the AICTE to proceed with the processing of appli- cations online, merely on the basis of the disclosure made by the applicant rather than the discovery made during the inspec- tions, the Institutions have now been let off the hook. But to in- still the fear of god (if not the fear of law) in the Institutions, the 2016 Regulations contain two provisions, in Regulations 4.35 and 4.36, respectively providing (i) for penal action if the disclosure was found to be incorrect or inaccurate and (ii) for surprise inspections without prior intimation. Regulations 4.35 and 4.36 read as follows:
4.35 - The applicants are expected to provide the Council true and complete information and documents required for various purposes. If the information given and/or the documents pro-
vided to the Council are found to be false, incomplete and/or the applicants have failed to disclose factual information and /or suppressed/misrepresented the information, the Council shall in- itiate action including Withdrawal of Approval/or any other action as deemed necessary against the applicants.
4.36 - AICTE shall also conduct from time to time inspections with or without notifying dates in such cases where specific complaints of falsification of documents, misrepresentation, vio- lation of norms of standards, malpractices, etc., are received."
40. Regulation 15 of the 2016 Regulations makes it clear that no Letter of Approval or Extension of Approval shall be granted after the 30th April of every Calendar Year, in view of the order passed by the Apex Court in Parshvanath Charitable Trust v. AICTE, on 13.12.2012.
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41. The Regulations of the year 2016 published on 30.11.2016 were amended by the First Amendment Regulations, 2017. This First Amendment, titled as AICTE (Grant of Approvals for Technical Institutions) (First Amendment) Regulations, 2017, were notified on 05.12.2017. The amendments made by the First Amendment, do not have a bearing upon the batch of cases on hand. Therefore, it is not necessary to deal with them in great detail. But in brief it can be stated that the First Amendment Regulations, 2017 -
(i) Made modifications to the list under Regulation 4.2, Clause (a) of which deals with Extension of Approval to Existing Insti- tutions.
(ii) Made little modification with regard to the items under Regula-
tion 4.2, for which the processing of applications by the Scrutiny Committee will be solely based upon the docu- ments submitted by the applicants and the items under Regulation 4.2 for which an inspection by the Expert Visit Committee will be conducted.
(iii) Made the language in Regulation 4.35 with regard to the pen-
alty for suppression or misrepresentation of information in the application form, undergo some change.
But the aforesaid changes brought forth by the 2017 Regulations, are not germane to the issues arising for consideration in these writ petitions.
42. From the way the AICTE Regulations for grant of Ap- provals have undergone sweeping changes after the year 2012, 25 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch it is clear that there is increasing reliance placed by AICTE upon the good faith and conduct of the Institutions. Since AICTE has decided to proceed on good faith, after the advent of the 2012 Regulations, the role and responsibility of the Affiliat- ing Universities has increased manifold. Cases abound in this Court where the inspections conducted by the Committees of the University have exposed the falsity of the claims made by the institu- tions in the information furnished by them to AICTE online. There- fore, the challenges made to the prescriptions issued by the Univer- sity may have to be scrutinized with a lot of care and caution.
43. Having taken note of the AICTE Act and the Regulations issued thereunder, we shall now take up the challenge to each of the Regulations of the University.
Challenge to Regulation 3.25 and 5.4
44. As we have pointed out in paragraph 9, Regulations 3.25 and 5.4 are challenged, since they mandate that a Post Graduate Programme proposed to be offered in a Department, shall not be af- filiated, unless the Under Graduate programme in the concerned Department has been granted affiliation. But if an institution is a standalone Post Graduate institution or if the Institution is offering MBA or MCA, then the grant of affiliation for a Post Graduate pro- gramme need not depend upon the grant of affiliation for Under Graduate Programme.
45. These two regulations are challenged on the sole ground that the Approval Process Handbook issued by AICTE does not con- 26
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch tain such a restriction and that therefore, the Regulations framed by the University are overreaching and irrational.
46. Neither the AICTE Act nor the AICTE Regulations, 2016 specifically deal with the issue as to whether an affiliation for a Post Graduate programme would depend upon the affiliation to a corre- sponding Under Graduate programme. The Approval Process Hand- book issued by the AICTE for the year 2017-18 merely contains the Norms for faculty requirements and recommended cadre ratio for Post Graduate programmes in Appendix-VII, Table 7.3. Therefore, it is clear that AICTE Regulations are silent on the question whether the grant of approval for a Post Graduate programme, would depend upon the approval for the Under Graduate programme. This is sought to be projected as a case of repugnancy between the AICTE Regulations/Approval Process Hand Book and Regulation 3.25 and 5.4 of the Affiliation Procedure and Regulations of the JNTU.
47. But we are unable to see any repugnancy. There is no ex- press stipulation either in the AICTE Regulations of the year 2016 or in the Approval Process Handbook that deals with this issue. There- fore, the field is left unoccupied by the Regulations of the AICTE. So long as the field is unoccupied by a Central Legislation, there is no bar for the State Law to make a prescription.
48. The 2nd argument as against Regulations 3.25 and 5.4 is that when standalone Post Graduate institutions can be granted af- filiation, it is completely irrational to say that the institutions offering both Under Graduate and Post Graduate courses should have af- 27
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch filiation for Under Graduate courses to be eligible for affiliation for Post Graduate courses.
49. But unfortunately for the petitioners, the rationality or otherwise of the prescriptions made by Universities and expert bodies, cannot be tested on the touchstone of what we under- stand as rationale in common parlance. If an institution applies for approval to AICTE as a standalone Post Graduate institution, the Norms prescribed in the Table under Appendix-VII at 7.3 of the Ap- proval Process Handbook will apply. If an institution has both Under Graduate and Post Graduate programmes, the tables at 7.2 and 7.3 of Appendix-VII of the Approval Process Handbook will apply. The combined effect of the same can be ascertained only by the University and we are not competent to test a particular Regulation merely on the basis of rationality.
Challenge to Regulation 3.4
50. Regulation 3.4 is challenged on the ground that it enables the University to grant affiliation for a reduced intake, than the intake permitted by statutory bodies such as AICTE or Pharmacy Council of India (PCI). According to the petitioners, this prescription enables the University to overrule the decision taken by the AICTE or PCI and hence it is not permitted by law.
51. At the outset, it should be pointed out that all that is stated in Regulation 3.4 is that the intake in no case shall exceed those sanctioned by AICTE/PCI and that the University may consider any 28 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch variation in intake after obtaining approval from AICTE/PCI prior to admissions for the current academic year.
52. In any case, the answer to the argument of the petitioners can be found by taking two possible scenarios. Take for instance one possible scenario where the AICTE/PCI grants approval for a particular intake and the University finds that the institution is enti- tled to a higher intake. In such cases, Regulation 3.4 prohibits the University from granting affiliation for a higher intake. The 2nd sce- nario is where the University feels that the college is entitled to affiliation only for a lesser intake. To grant affiliation for a lesser in- take, there is no prohibition under the AICTE Regulations.
53. As we have pointed out earlier, after the advent of the 2012 Regulations which is also followed by the 2016 Regulations, the processing of applications by AICTE is based on self-disclosure. Regulation 4.19.b obliges the institutions having an approved intake of less than a Division size, to apply for an intake of full Division size. They should also maintain faculty-student ratio accordingly. The word "Division" is defined in Regulation 2.15 of the 2016 Regulations. The size of the Division as defined in Regulation 2.15 varies from course to course and between Under Graduate and Post Graduate courses.
54. Therefore, what is controlled by AICTE is only the upper ceiling limit. It does not mean that after taking into account various factors, the University cannot grant affiliation for a reduced intake. 29
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch
55. It may be important to note that the 2016 Regulations do not confer exclusive authority upon AICTE to do what they like. Regulation 4.12 makes it clear that the applications for es- tablishment of new institutions under Regulation 4.1 and the applications for extension of approval under Regulation 4.2, will be processed as per the procedures prescribed in the Approval Process Handbook, in addition to the existing Central, State and Local Laws. Regulation 4.12 of the AICTE Regulations, 2016, reads as follows:
"4.12: The applications received under Clauses 4.1 and 4.2 of these Regulations shall be processed as per the procedures, norms and standards prescribed in the Approval Process Hand- book as notified by the Council from time to time in addition to the existing Central, State and Local laws."
56. Regulation 4.18 also gives a role to the State Government as well as the Affiliating University, while processing the applications under Regulation 4.1. Therefore, even the Regulations of AICTE do not declare them as having the final word. The law is well set- tled that while the Universities cannot dilute the standards as pre- scribed by AICTE, the Universities are always free to prescribe high- er standards. Therefore, the challenge to Regulation 3.4 cannot be sustained.
57. However, we wish to add a note of caution. If an institution satisfies the norms and standards prescribed by the AICTE and upon physical verification by the University, it is found that the insti- tution does satisfy the norms and standards, it may not be open to the University arbitrarily to grant affiliation for a reduced intake. 30
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch Every individual decision of the University to grant affiliation for a reduced intake, is susceptible to challenge before this Court. All that we say in this decision is that Regulation 3.4 per se cannot be said to be ultra vires.
Challenge to Regulation 5.2, 5.3 and 5.4
58. Regulation 5.2 of the University Regulations requires a new institution proposing to offer Technical Education to first seek a No Objection Certificate from the University before applying to AICTE/PCI. Similarly, Regulation 5.3 of the University Regulations mandates the University to consider the application for establish- ment of a new college or for starting a new programme, as per the priority/policy of the State Government. These Regula- tions are assailed on the ground that they are contrary to Clause 4 of Chapter-I of AICTE Approval Process Handbook, 2017-18 and Reg- ulation 4.14 of the Statutory Regulations, 2012.
59. It is true that paragraph-4 of the Approval Process Hand- book, 2017-18 issued by the AICTE contains a detailed procedure including the kind of documents to be enclosed to the application for approval. Paragraph-4 of the Approval Process Handbook issued by AICTE does not contain a stipulation that a No Objection Certificate should be obtained from the University before hand. It does not also contain any prescription that the University should take into account the priority/policy of the State Government.
60. But as we have pointed out earlier, the source of the pow- er for AICTE to issue Approval Process Handbook year after year 31 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch emanates from Regulation 4.11 of the AICTE Regulations, 2016. Therefore, no prescription contained in Approval Process Handbook can be in conflict with AICTE Regulations, 2016. Keeping this in mind, if we have a look at the AICTE Regulations, 2016, it may be of interest to note that there are two important prescrip- tions contained therein. They are in Regulations 4.3 and 4.4. Regu- lations 4.3 and 4.4 of AICTE Regulations, 2016, read as follows:
"4.3: No NOC from Affiliating University/ Board/State Govern- ment/UT shall be required for reduction in intake to Non-Zero intake and closure of Second Shift Courses."
"4.4: For closure of PGDM Course, NOC from Affiliating Univer- sity/ Board is not applicable. However, EVC shall be conducted and the applicant has to pay the fee as prescribed in Approval Process Handbook."
61. What is interesting to note is that in the AICTE Regula- tions, 2016, in entirety, there is no prescription for an institution to take a No Objection Certificate from the Affiliating University. But cases where No Objection Certificate is not required are indicated in Regulations 4.3 and 4.4.
62. In other words, cases in which No Objection Certificates from the Affiliating University are required, are not spelt out in the AICTE Regulations, 2016. But cases in which No Objection Certifi- cates are not required, is specifically spelt out in Regulations 4.3 and 4.4. This itself makes it clear that AICTE was not averse to the idea of the University prescribing the requirement of a No Objection Cer- tificate. If viewed from that angle, the prescription contained in Regulation 5.2 of the University Regulations cannot be found fault with.
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63. Insofar as the policy of the State Government is con- cerned, Regulation 4.18 of the AICTE Regulations, 2016 recognizes the stakes involved for the State Government in the matter of grant of approval. Regulation 4.18 of the AICTE Regulations, 2016 en- ables the State Government and the Affiliating University to forward their views with valid reasons along with the perspective plan of the State, within 21 days of receipt of the applications under Regulation 4.1. This is a positive recognition of the impact that the policy of the State Government may have on the question of grant of approval. Hence, Regulation 5.3 of the University Regulations obliging the University to take into account the policy of the State, cannot be held to be arbitrary, inasmuch as AICTE itself is obliged to consider the views of the State Government on the basis of their policy and the perspective plan. The petitioners have actually placed reliance upon Regulation 4.14 of the AICTE Regulations, 2012 to assail the Uni- versity Regulations 5.2 and 5.3. But AICTE Regulations, 2012 were superseded by the Regulations of the year 2016, notified on 30-11- 2016. Therefore, we have tested the argument against Regulations 5.2 and 5.3, on the touchstone of AICTE Regulations, 2016. In fact, the language employed in Regulation 4.14 of the AICTE Regula- tions, 2012 and the language employed in Regulation 4.18 of the AICTE Regulations, 2016 vary. This may be appreciated by present- ing hem in a tabular form as follows:
Regulation 4.14 of AICTE Regulation 4.18 of AICTE Regulations, 2012 Regulations, 2016 33 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch The State Government/ UT Admini- The State Government/UT Admini- stration and the affiliating University stration and the Affiliating Univer- may forward their views on the ap- sity/Board shall forward their views plications received under clause 4.1 on the applications received under and 4.2 of these Regulations to the Clause 4.1 as applicable, with valid concerned Regional Office of the reasons along with the perspective Council as prescribed in the Ap- plan of the State, within a period of proval Process Handbook. 21 days from the date of receipt of applications which shall be taken in-
to account by the Regional Commit-
tee for further processing the grant of approval. If the application is not processed further, the processing fee after a deduction of Rs.50,000/-
(Rupees Fifty thousand only) shall be refunded to the applicant.
If the views of the State Government/ UT Administration and the Affiliating University/Board are not received within a prescribed time schedule as mentioned in the Approval Process Handbook, it shall be presumed that they do not have any objection and the Council shall proceed further for processing of applications. However, the Council shall consider the previ-
ous communications, if any, re-
ceived from the State Government/ UT ad-
ministration, the Affiliating Univer- sity/ Board against any Institutions.
64. Therefore, it is clear that AICTE itself has conceded a greater role for the State Government as well as the Affiliating Uni-
versity and hence there is no use in contending that a demand for No Objection Certificate from the University is contrary to the AICTE Regulations.
Challenge to Regulation 7.1 to 7.11
65. The next set of Regulations under challenge is Regula- tions 7.1 to 7.11 of the Affiliation Procedure Regulations of the Uni- versity for the year 2017-18. The grounds on which these Regula- 34
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch tions are challenged are that these Regulations are used by the Uni- versity to fix their own norms of equivalence in the qualifications fixed for faculty members and that by fixing independent norms of equivalence of qualifications, the status of expert bodies such as AICTE, PCI etc., is belittled.
66. As we have stated earlier, while it is not open to the Uni- versities to dilute the norms and standards prescribed by AICTE, it is always open to the Universities to enhance them. The norms fixed by the University as such are not under challenge before us. In any case, there is a long list of decisions of the Supreme Court giving primacy to the Universities over AICTE. The decision of the Supreme Court in this regard in Bharathidasan University v. AICTE 3 , making it clear that AICTE is not a super power with a devastating role undermining the status, authority and autonomous functioning of the Universities in areas and spheres assigned to them, was recognized in subsequent decisions of the Supreme Court in Association of Management of (Private) Colleges v. AICTE 4 , Jaya Gokul Educational Trust v. Commissioner and Secretary to Government5, State of Tamil Nadu v. S.V. Bratheep6 and Modern Dental College and Research Centre v. State of Madhya Pradesh7. That the University can prescribe higher stan- dards than those prescribed by AICTE was recognized in Visves- 3 (2001) 8 SCC 676 4 (2013) 8 SCC 271 5 2000 (2) SCR 1234 6 2004 (3) LAWS (SC) 20 7 (2009) 7 SCC 751 35 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch waraya Technological University v. Krishnendu Halder8 and in Mahatma Gandhi University v. Jikku Paul9.
67. The learned counsel for the petitioners placed reliance upon the decision of the Supreme Court in Rungta Engineering College v. Chattisgarh Swami Vivekanand Technical Univer- sity10, in support of the contention that an authority established un- der a State Legislation is not empowered to sit in judgment over the decision of the AICTE.
68. But in Rungta Engineering College, the Supreme Court primarily relied upon two decisions of the Supreme Court, one in State of Tamil Nadu v. Adhiyaman Educational and Research Insti- tute [(1995) 4 SCC 104] and another in Jaya Gokul Educational Trust v. Commissioner and Secretary to Government [(2000) 5 SCC 231]. In Adhiyaman, the Supreme Court held that in the case of insti- tutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it, that will have jurisdiction. In Jaya Gokul Educational Trust, the question whether the State Government, as a matter of policy, can decline to grant approval for the establishment of a new Engineering College, in view of the perception of the State Government that the opening of a new college will not be in the interest of the students and employment, was answered in favour of the institution. 8 (2011) 4 SCC 606 9 (2011) 15 SCC 242 10 (2015) 11 SCC 291 36 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch
69. But in Bharathidasan University, the Supreme Court noted the decisions in Adhiyaman as well as Jaya Gokul Educational Trust and came to a conclusion that a careful scanning of the provisions of the AICTE Act and the provisions of the UGC Act in juxtaposition will show that the role of the AICTE vis-à-vis the Universities is only ad- visory, recommendatory and a guiding factor. Since the decision in Bharathidasan University is subsequent to Adhiyaman and Jaya Go- kul Educational Trust, and also since the decision in Rungta Engi- neering College did not take note of the decision in Bharathidasan University, we are obliged to follow the decision in Bharathidasan University.
70. Similarly, the decision in Visveswaraya Technological Uni- versity also took note of the decision in Adhiyaman. In fact, the deci- sion in Visveswaraya arose out of a judgment of the Division Bench of the Karnataka High Court, which simply followed Adhiyaman. This can be found from paragraph-6 of the decision in Visveswaraya. But the Supreme Court found that the original view taken by the Court in Adhiyaman stood modified in Dr. Preethi Srivastava v. State of Mad- hya Pradesh [(1999) 7 SCC 120]. In Visveswaraya, the Supreme Court pointed out that the observations made in Adhiyaman were explained in the correct perspective in S.V. Bratheep. Though the decision in Visveswaraya was also that of a two-member bench, the Court declared the opinion in paragraph-41(vi) of Adhiyaman as not a good law.
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71. The decision in Visveswaraya was also followed in Ma- hatma Gandhi University v. Jikku Paul. Unfortunately, neither the decision in Bharathidasan University nor the decisions that followed Bharathidasan University such as Visveswaraya and Mahatma Gan- dhi University were cited before the Supreme Court in Rungta Engi- neering College.
72. As a matter of fact, we are not concerned in this batch of cases with any attempt made by the University to belittle the status of AICTE. As we have pointed out in the first portion of our order, Section 4 of the JNTU Act, 2008 itself made it clear that the objects of the University would be subject to any law made by the Parlia- ment as to coordination and determination of standards. The objects of JNTU were also made subject to such directions as may be made on behalf of the Central Government. Therefore, the JNTU Act, 2008 and the Regulations issued in the form of Affiliation Procedure Regulations year after year by JNTU, specifically recog- nizes the role of AICTE. Similarly, the AICTE Regulations, 2016, more particularly the Regulations 4.18, 4.3, 4.4 etc., recognized the role of the State Government and the Affiliating University. In other words, AICTE itself has fine tuned its Regulations in such a manner that they provide a space for the State Government and the Univer- sity so that there is no conflict of interest and all the 3 of them can work towards the betterment of standards.
73. Apart from the fact that the decisions of the Supreme Court in Bharathidasan University, Visveswaraya Technological Uni- 38
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch versity and Mahatma Gandhi University were not noticed by the Su- preme Court in Rungta Engineering College, the amended Regula- tions of AICTE of the year 2016, providing a space for the State Government and the Affiliating University were also not noted there- in.
74. Another important aspect which requires reiteration is that after the advent of AICTE Regulations, 2012, the applications for ex- tension of approvals are processed only online, merely on the basis of the disclosure made by the colleges. If all infrastructural facilities as prescribed by AICTE are found to be available on paper, the AICTE grants extension of approval in view of Regulation 4.19.1. Though AICTE has reserved to itself the power to conduct inspec- tions and take penal action against colleges for false declarations, such penal action does not mean anything and does not serve any purpose for the students who get admitted to such colleges. The Regulations of the AICTE are silent as to how the students will get compensated, when penal action is taken against colleges which host false information online in their applications to AICTE.
75. This is why the JNTU has taken upon itself the task of making inspections, for finding out whether the information furnished in the application filed online by the institutions with AICTE is correct or not. In fact, the University has come up in a large number of cas- es before this very bench, highlighting the discrepancies between the information furnished by the institutions to the AICTE and the in- formation furnished in the applications made to the University for af- 39
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch filiation. These discrepancies are sought to be explained by the learned counsel for the petitioners by arguing that AICTE processes the applications and pass orders before 30th April of every year, but the University takes up the applications for affiliation only 3 to 4 months later and that during this interregnum period some faculties leave and some are appointed.
76. But this is hardly an explanation that can be accepted. Take a hypothetical case where Universities also accept applications online and processes the same without physical inspection or verifi- cation. In such an event, neither the AICTE nor the University will know what happened after the grant of approval by AICTE and af- filiation by University. This will leave the students who join such courses/colleges in the lurch.
77. Regulations 7.1 to 7.11 of the Affiliation Process Regula- tions issued by JNTU should be seen in the context of Regulation 4.19.a of the AICTE Regulations, 2016. In fact, we have come across several cases where the same person is shown as a faculty in different colleges for getting approval and affiliation. Only after realizing this, the expert bodies came up with a solution to pro- vide unique I.D. to faculty members. Even thereafter it was found that several persons were appointed by colleges just for the purpose of getting affiliation and were discharged immediately after affiliation was granted. To plug these loopholes, JNTU has installed a biometric system of attendance in colleges, but the security of the same has also been compromised. Very recently, the Vice-Principal 40 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch of a private college along with a few others were arrested by the po- lice in connection with the illegal sale of cloned finger prints of faculty of colleges to tamper with the bio metric attendance. Thus Colleges have started inventing newer and newer methods of violating the norms, forcing the University to come up with newer and newer solu- tions. Since the system of administration of justice is not always in- novative, we still try and test these issues on old scales. In fact, a time may come when the University may have to create a Research and Development Department to plug the loopholes. Even then they may be lagging behind the dirty tricks departments of some of the colleges. Therefore, the challenge to Regulations 7.1 to 7.11 cannot be countenanced.
Challenge to Annexure-I of the Affiliation Procedure Regula- tions of the JNTU
78. The next challenge is to Annexure-I of the Affiliation Pro- cedure Regulations of the JNTU, which mandates the nominees of the University to participate in the process of selection of faculties of colleges. Some of the petitioners are run by Religious Minority Insti- tutions and hence they pitch their claim on Article 30(1) of the Con- stitution also.
79. But unfortunately for the petitioners, the AICTE Regula- tions, 2016, contained a special prescription in Regulation 4.30 which reads as follows:
"4.30: New Institutions granted Letter of Approval and Existing Institutions granted approval for introduction of new Course(s), Divi- sion(s), Programme(s), variation in intake capacity shall comply with ap-41
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch pointment of teaching staff and Principal/Director as the case may be, as per the policy of the Council.
Institutions other than Minority Institutions shall appoint teaching staff/Principal/Director and other technical supporting staff and adminis- trative staff strictly in accordance with the methods and procedures of the concerned Affiliating University/ Board particularly in case of selection procedures and selection Committees.
The information about these appointments of staff in the pre- scribed format shall also be uploaded on the Web-Portal of AICTE as per the schedule prescribed in the Approval Process Handbook."
80. Therefore, it is clear that institutions other than the Minority Institutions are required to follow the methods and procedures of the Affiliating University in the matter of Selection Procedures and Se- lection Committees. Hence, the challenge made by Non-Minority In- stitutions to Annexure-I of the Affiliation Procedure Regulations of the University, is liable to be rejected even on the basis of Regula- tion 4.30 of AICTE Regulations, 2016. Regulation 4.30 of the AICTE Regulations, 2016 is not under challenge. Therefore, Non-Minority Institutions will have to follow the selection procedure and go through the Selection Committee as stipulated by University.
81. Insofar as Minority Institutions are concerned, Regulation 4.30 of the AICTE Regulations 2016 will not apply. But it does not mean that the power of the university to prescribe a procedure for the selection of teaching faculties has been taken away by the AICTE Regulations, 2016. The prescription contained in Regulations 4.30 of the AICTE Regulations 2016, cannot be understood to mean that in respect of Minority Institutions, there is a positive mandate from the AICTE not to follow any procedure prescribed by the uni- versities. All that can be inferred from Regulation 4.30 is that the 42 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch mandate of the AICTE in this regard is confined only to Non-minority Institutions. It would have been a different matter if Regulation 4.30 had also included a prescription that Minority Institutions need not follow any procedure prescribed by the university. Therefore, the in- ference is that insofar as Minority Institutions are concerned, the field is left unoccupied by Regulation 4.30 of the AICTE Regulations 2016. If the field is left unoccupied, then there is no repugnancy.
82. But Annexure-I of the Affiliation Procedure Regulations of the JNTU University mandating the inclusion of the nominees of the university in the Selection Committees for appointment of teaching faculties, is challenged not merely on the ground of repugnancy with the AICTE Regulations, but also on the ground of infringement of the right under Article 30(1) of the Constitution. Reliance is placed in this regard on the decision of a Division Bench of the Madras High Court in The Forum of Minority Institutions and Associations v. State of Tamil Nadu11.
83. We have carefully considered the above submissions. For- tunately, in the batch of cases on hand, we do not have a Minority Institution receiving grant-in-aid from the Government. Minority Insti- tutions receiving grant-in-aid may stand on a different footing than unaided Minority Institutions.
84. In The Secretary, Malankara Syrian Catholic College v. T. Jose and others12, the Supreme Court analyzed the entire case law on the point, starting from the one In re. Kerala Education 11 2011 MLJ (2) 641 12 (2007) SCC 1 386 43 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch Bill 13 , 1957, up to the decision in P.A Inamdar v. State of Ma- harashtra14 and summarized the principles relating to establishment and administration of educational institutions by minorities in para- graph-19 as follows:
"19. The general principles relating to establishment and admini- stration of educational institution by minorities may be summarized thus:
(i) The right of minorities to establish and administer educational institu- tions of their choice comprises the following rights :
a) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the insti- tution;
b) To appoint teaching staff (Teachers/Lecturers and Head-
masters/Principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;
c) To admit eligible students of their choice and to set up a reasonable fee structure;
d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis- `-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relat- ing to national interest, national security, social welfare, public order, mo- rality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to mal-administer. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on admini- stration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regula- tions made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational pro- cedure of selection.
(v) Extension of aid by the State, does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1)."
85. Keeping the above principles in mind, we shall now turn our attention to the decision of the Madras High Court in The Forum 13 AIR 1958 SC 956 14 (2005) 6 SCC 537 44 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch of Minority Institutions and Associations. The challenge before the Madras High Court was to Clause-3 of the Annexure to the UGC Regulations, 2000 regarding minimum qualifications for appointment and career advancement of teachers in universities and colleges. The Regulation impugned before the Madras High Court stipulated the constitution of Selection Committees for the appointment of lec- turers and principals. The Selection Committees for appointment of principal were required to comprise of - (1) the Chairman of the Go- verning Body of the College or his nominee; (2) the Principal of the College; (3) one Senior Teacher/Head of the Department; (4) two nominees of the Vice Chancellor of the Affiliating University; and (5) two subject experts not connected with the college to be nominated by the Chairperson of the Governing Body out of a panel of names approved by the Vice Chancellor. Similarly Selection Committees were to be constituted for appointment to the post of university lec- turers, readers etc. The Division Bench of the Madras High Court found two issues as arising for consideration, viz., (1) whether the University Grants Commission has power to make Regulations re- garding Selection Committees to be constituted by private colleges; and (2) whether the Regulations infringe upon the rights guaranteed under Article 30(1) of the Constitution in respect of Minority Institu- tions. On the first question, the Division Bench found that the issue was already settled by another Division Bench of the Madras High Court in the Secretary Kamaraj College v. D.S. Arulmani 15 , to 15 2008 (2) MLJ 593 45 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch which one of us (VRS,J) was a party. On the second question, the Division Bench of the Madras High Court held in favor of the Minority Institutions and Associations by holding that Regulation 3 of the Uni- versity Grant Commission Regulations constituted an infringement of the rights conferred upon the minorities.
86. Seeking to distinguish the decision of the Division Bench of the Madras High Court in The Forum of Minority Institutions and As- sociations, it is contended by Mr. A. Abhishek Reddy, learned Stand- ing Counsel for the university that Annexure-1 of the University Reg- ulations does not contain any prescription that will dilute or infringe the rights of the minorities. According to the learned counsel, An- nexure-1 of the University Regulations enable the University to pro- vide a list of five names, who are subject experts, from out of whom the Chairman of the Governing Body of the college is entitled to se- lect two. Therefore, it is contended by the learned counsel for the university that in contrast to Regulation 3 of the UGC Regulations that was under challenge before the Madras High Court, Annexure-1 of the JNTU Regulations is too soft, too diluted and does not at all infringe upon the rights of the Minority Institutions.
87. In order to test the rival contentions, it may be necessary to have a look at Clause-VI of Annexure-1 of the Affiliation Proce- dure Regulations 2017-18 issued by the university. It reads as fol- lows:
"VI. FACULTY SELECTION COMMITTEE
1. The Constitution of the selection committee shall be as laid by State Government G.O's issued/Other Statutory bodies from time to time. The extract of norms are as follows:46
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch A) For Appointment of AssistantProfessor the members of the Selection Committee shall include -
1. Chairperson of the Governing Body of the College or his/her no- minee from among the members of the Governing body to be the Chairperson of the Selection Committee.
2. The Principal of the College.
3. Head of the Department of the concerned subject.
4. Two nominees of the Vice Chancellor of the affiliating University of whom one should be a subject expert.
5. Two subject-experts who are not connected with the College to be nominated by the Chairperson of the governing body of the College out of a panel of five names approved by the relevant statutory body of the University concerned.
6. As academician representing SC/ST/OBC/ Minority/Women /Differently abled categories, if any of candidates representing these categories is the applicant, to be nominated by the VC, if any of the above members of the selection committee do not be- long to that category.
7. The quorum for the meeting should be five of which at least two must be from out of the three subject-experts. B) For Appointment of Associate Professor, the members of the Se- lection Committee shall consist of -
1. The Chairperson of the Governing Body or his/her nominee, from among the members of the Governing Body to be the Chairperson of the Selection Committee;
2. The Principal of the College,
3. The Head of the Department of the concerned faculty from the College.
4. Two University representatives nominated by the vice chan- cellor, one of whom will be the Dean of College Development Council or equivalent position in the University, and the other must be expert in the concerned subject.
5. Two subject experts not connected with the College to be nominated by the Chairperson of the governing body of the College out of a panel of five names approved by the rele- vant statutory body of the University.
6. An academician representing SC/ST/OBC/ Minority/ Wom- en/Differently abled categories, if any of candidates repre- senting these categories is the applicant, to be nominated by the VC, if any of the above members of the selection commit- tee do not belong to that category. The quorum for the meet- ing should be five of which at least two must be from out of the three subject-experts.
C) For Appointment of Principal the members of the Selection Committee shall include Chairperson of the Governing Body as Chairperson.
Two members of the Governing Body of the College to be nominated by the Chairperson of whom one shall be an expert in academic administration.
One nominee of the Vice Chancellor who shall be a Higher Education expert. In case of Colleges noti- fied/declared as minority educational institutions, two nominees of the Chairperson of the College from out of a panel of five names, preferably from minority communi- ties, recommended by the Vice-Chancellor of the affiliat- ing University of whom one should be a subject expert. Three experts consisting of the Principal of a College, a Professor and an accomplished educationist not below the rank of a Professor (to be nominated by the Govern- ing Body of the College) out of a panel of six experts ap- 47
VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch proved by the relevant statutory body of the University concerned.
An academician representing SC/ST/OBC/ Minority/ Women/Differently- abled categories, if any of candidates representing these categories is the applicant, to be no- minated by the VC, if any of the above members of the selection committee do not belong to that category. At least five members, including two experts, should constitute the quorum."
88. The prescriptions contained in the relevant part of Annex- ure-1 of the University Regulations clearly show that the Selection Committees are overloaded with the nominees of the Vice Chancel- lor. Say for example, the Selection Committee for appointment to the post of Assistant Professor should comprise of eight members, only one of whom is the Chairperson of the Governing Body of the institu- tion. The other two members will be the Principal and Head of the Department of the college. The remaining five members will only be the nominees of the Vice Chancellor. Therefore, it is clear that the prescriptions in Annexure-1 of the impugned University Regulations for the constitution of Selection Committees are more serious than Regulation 3 of the UGC Regulations that was under challenge be- fore the Madras High Court. As reiterated by the Supreme Court in Sindhi Education Society v. the Chief Secretary, Government of NCT of Delhi16, the appointment of a teacher is part of the regular administration and management of the educational institution. While it will be open to expert bodies like AICTE and Affiliating Universities like JNTU to prescribe the qualifications or eligibility criteria for a teacher to be appointed, it may not be open to them to interfere with the right of the minority institution to select a teacher of their choice. 16
(2010) 8 SCC 49 48 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch If the institutions select people, who do not satisfy the prescribed cri- teria, qualifications or eligibility, the university may refuse to recog- nize such appointment. But the university cannot interfere with the method of selection of teachers by minority institutions. Therefore, the contention of the petitioners, who are minority educational institutions, is to be upheld insofar as the prescriptions con- tained in Annexure-1 about the constitution of Selection Com- mittees is concerned.
89. The last of the challenges to the impugned University Regulations, is to the guidelines contained in the University Regula- tions with regard to the appointment of adjunct faculties.
90. The object of allowing institutions to appoint adjunct facul- ties is to ensure that professionals, who are employed in industries or persons, who are running industries in the relevant field are able to come and share the practical wisdom that they have gained in a particular discipline. All that the university guidelines say is that - (1) such adjunct faculty should satisfy the educational qualifications prescribed by AICTE; (2) such adjunct faculty should produce NOC from the parent organization; (3) such adjunct faculty should be available as per the timetable; (4) such adjunct faculty should have 10 years of experience and not more than 70 years of age; and (5) such adjunct faculty should be a member of at least two professional bodies.
91. We do not know how these prescriptions can be held to be illegal. The very object of appointing adjunct faculties is to enhance 49 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch the skills of the students in the practical application of their theoreti- cal knowledge. But this provision should not be used as a handle for appointing all and sundry who have no expertise in the field. As per the University Regulations, 20% of the faculty could be adjunct fac- ulty. When the facility of appointing adjunct faculties, who need not be in the payroll as full-time teachers, is provided to the institutions, the institution should not challenge the eligibility criteria fixed for such adjunct faculties. Therefore, the challenge to these guidelines should also fail.
Conclusion:
92. In view of the above, the challenge to Regulations 3.25 read with 5.4, 3.4, 5.2, 5.3, 7.8, 7.9, 7.10, 12.5, Annexure-1 and the guidelines for adjunct faculty, should fail, except to the extent that the prescription relating to constitution of Selection Committees con- tained in Claus-VI of Annexure-1 of the Affiliation Procedure Regula- tions 2017-18 will not apply to minority educational institutions. Ancillary grievances:
93. As we have stated earlier the petitioners have, apart from challenging the regulations, also ventilated certain grievances. The first is that the University is not adhering to the time frame for proc- essing the applications for affiliations, as fixed by the Supreme Court in its decision in Parshvanath Charitable Trust.
94. This grievance is fairly justified. The schedule fixed by the Supreme Court has to be respected and followed by the Universities, 50 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch as otherwise the actions of the University may be viewed with suspi- cion.
95. The second grievance is about the conduct of surprise in- spections. We do not know why institutions who have fulfilled all the requirements should be worried about surprise inspections. There can be no denial of the fact that there is a huge trust deficit. Colleges which comply with the statutory requirements need not bother about surprise inspections and others have no right to come to the Court.
96. The third ancillary grievance of the petitioners is about the rejection of affiliation based upon the performance of the students of the institutions in the previous academic years. The contention of the University is that the performance of the students of colleges affili- ated to the University has a direct bearing upon the reputation of the University itself. Therefore it is contended by the University that it should be one of the parameters for deciding the issue of affiliation.
97. Technically and legally, the regulations of the University do not prescribe the performance of the students of an institution, as a factor to determine the eligibility of the institution for affiliation. But in practice the number of students who come out of an institution with flying colors determines the reputation of the institution. The cumulative reputation of all the institutions affiliated to an University determines the reputation of the University. Institu- tions which are incapable of imparting quality education and enhancing the skills of the students, have no business to sur- vive, though they may have a business to run. But as a matter of 51 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch fact, the correlation between the performance of students and the performance of teachers, is at times direct and at times inverse. The more meritorious students always choose the most reputed colleges and even if those colleges engage teachers of relatively lesser qual- ity, the students, by their own efforts, compensate for the lack of effi- ciency on the part of the teachers. But students at the bottom of the merit list gain admission only to colleges of relatively lesser reputa- tion and unless these colleges engage teachers who are better than those engaged by the best of those colleges, it is not possible to im- prove the performance of less meritorious students who join these colleges.
98. Therefore even while taking the poor performance of stu- dents of the previous batches, as a factor for determining the eligibil- ity of a college for affiliation, the University may give some latitude depending upon the area where the college is located and the social strata from which the students of these colleges come from.
99. The last of the ancillary grievances of the petitioners is that the University is insisting upon the provision of faculties, library and laboratory even for the 2nd, 3rd and 4th year of the additional course or additional intake even when the college is imparting the 1st year of the course of study only. According to the petitioners, they should be permitted to develop the infrastructure over a period. According to the petitioners, the investment in infrastructure even for the 2nd, 3rd and 4th year of the course of study, will be a dead investment when an additional course or additional intake is sanctioned for the 1st 52 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch year for the first time. The petitioners claim that when the students complete the first year of their course of study, the managements will put in place the necessary infrastructure for the next year.
100. Logically the above contention appears to be right. But the difficulty is that, if the institutions do not provide sufficient infra- structure when the students move over from the 1st year to the 2nd year, the students will be put into great jeopardy. Students get ad- mitted on the basis of the approval granted by AICTE and the affilia- tion granted by the University. These two virtually hold out a promise to the students that all infrastructure is available. Students do not take admissions based upon promises. Therefore the last of the an- cillary contentions is also liable to be rejected.
101. We are now left with one last contention which revolves around the FAQs issued by the University. The petitioners claim that at the commencement of the academic year 2017-18, a video con- ference was held by the University with all the colleges. Thereafter the University issued FAQs relating to the affiliation process.
102. According to the petitioners, they altered their position in accordance with the FAQ's by dispensing with the services of some faculty, who were earlier engaged. But the University later went back on the FAQ's.
103. But at the outset we should point out that FAQs cannot go contrary to the Regulations. The University is as much bound by the Regulations as the institutions are. There can be no estoppel 53 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch against Statute. Therefore the last contention revolving around FAQ's is also liable to be rejected.
104. In fine--
(a) The writ petitions challenging Regulations 3.25 read with 5.4, 3.4, 5.2, 5.3, 7.8, 7.9, 7.10 and 12.5 and Annexure-1 and the guidelines for adjunct faculty, should fail and accordingly they are dismissed.
(b) But the challenge by minority educational institutions, to the prescription relating to the constitution of Selection Committees con- tained in Clause-VI of Annexure-1 of the Affiliation Procedure Regu- lations 2017-18 is upheld and the writ petitions filed by minority insti- tutions, in so far they challenge this prescription, are allowed only to this limited extent.
(c) The University is directed to follow, as far as possible, the time schedule prescribed by the Supreme Court in its decision in Parshvanath Charitable Trust.
(d) Whenever the past performance of the students is taken in- to consideration for fixing the permitted intake, at a level lesser than the one prescribed by statutory bodies like AICTE, PCI etc., the Uni- versity should take note of several factors such as the location of the college, the social strata from which the students joining the college come from etc. In other words, the pass percentage of students in the past couple of years cannot be the sole criteria for rejecting the request for affiliation or for granting affiliation for a reduced intake. Several factors such as the backwardness of the area in which the 54 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch college is located, the social status from which the students joining the college come from etc., are to be taken into account along with the past pass percentage.
The writ petitions are disposed of with the above observations and directions. There shall be no order as to costs. As a sequel the- reto, miscellaneous petitions, if any, pending shall stand closed.
________________________ V. RAMASUBRAMANIAN, J ______________ N. BALAYOGI, J Date: 11-12-2018 AK/JS/Ksn 55 VRS, J & NBY, J W.P.Nos.18954 of 2017 & batch HON'BLE SRI JUSTICE V.RAMASUBRAMANIAN AND HON'BLE SRI JUSTICE N. BALAYOGI W.P.Nos.18954, 19819, 19983, 19986, 20126, 21201, 21865, 22231, 22240, 22831, 22851, 22984 and 23573 of 2017 11th December, 2018 Ksn