Rajasthan High Court - Jaipur
Indrajeet Kathuria vs State (Education Department)Ors on 13 August, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: D.B. CIVIL WRIT PETITIION (PIL) 10037/2012 Indrajeet Kathuria Vs. The State of Rajasthan & Ors. 13.08.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr.Poonam Chand Bhandari for the petitioner.
Mr.N.A.Naqvi, Senior Advocate & Addl.Advocate General with Mr.M.R.Kalam for the respondent No.1-State of Rajasthan.
Mr.R.K.Agarwal, Senior Advocate with Mr.Naresh Gupta for respondent No.5-JECRC University.
Mr.Bharat Vyas for respondents No.2 to 4.
In the writ petition, prayer has been made to direct respondents No.1 to 4 to take action against respondent No.5-Jaipur Engineering College and Research Centre(JECRC) University (hereinafter referred to as 'the JECRC University') as it has not obtained prior approval from the All India Council for Technical Education (AICTE) and University Grants Commission (UGC); respondent No.5 be also restrained from giving admissions.
It is averred in the petition that the Rajasthan Private Universities Act, 2005 (hereinafter referred to as 'the Act of 2005') which came into force in the year 2005, provides that a private University can be established by issuing a notification in the Office Gazette and the decision being taken by the State Government in accordance with law. Under Section 3 of the University Grants Commission Act, 1956 (hereinafter referred to as 'the Act of 1956'), Deemed to be University status is granted by the Central Government to those educational institutions of repute, which fulfill the prescribed standards and comply with various requirements laid down by the UGC. In exercise of powers conferred by clauses (f) and (g) of Section 26(1) of the Act of 1956, the UGC has framed the regulations called the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003, which shall apply to every private University established under a State Act. As per Regulation 3.4 of the Regulations of 2003, it is necessary that a private University shall fulfill the minimum criteria in terms of the programmes, faculty, infrastructural facilities, financial viability etc. as laid down from time to time by the UGC and other concerned statutory bodies such as the AICTE, Bar Council of India, Distance Education Council, Dental Council of India, Indian Nursing Council, Medical Council of India, National Council for Teachers Education, Pharmacy Council of India. Approval/Certificate is also required to be obtained from the UGC and AICTE under Section 39 of the Act of 2005.
Mr.Poonam Chand Bhandari, learned counsel appearing on behalf of the petitioner has submitted that respondent No.5-University does not fulfill most of the requirements as required under the Act of 2005. However, advertisements have been issued by respondent No.5 in an illegal manner without prior approval of AICTE and UGC. Petitioner had filed IA No.33981/2012 for impleading as many as 33 Universities including the Bar Council of India as respondents, the same was allowed. Thereafter, he had also filed IA No.35692/2012 for impleading regulatory bodies like the Dental Council of India, Indian Nursing Council, Medical Council of India, National Council for Teacher Education and Pharmacy Council of India as respondents.
In the reply filed by respondents No.2 to 4, it is contended that as per clause 3(e) and 4.1 of the AICTE(Grant of Approvals for Technical Institutions) Regulations, 2011, for professional courses prior approval of AICTE has to be obtained. The AICTE has issued public notice Annexure-R/1; AICTE has also framed the Regulations called the All India Council for Technical Education (Information for Maintenance of Standards and Conduct of Inspection of Technical Entities of Universities) Regulations, 2012 (hereinafter referred to as 'the Regulations of 2012'), which were notified on 11.6.2012 and published in the Official Gazette on 25.6.2012 in which certain definitions have been laid down and even the departments of the Universities have been included. Now the inspection of the departments of universities can be carried out by the AICTE in terms of the aforesaid Regulations of 2012 and in case, any violation of norms, standards etc. laid down therein is found, on recommendation to be made by the AICTE to the concerned authorities, appropriate action can be taken.
Mr.N.A.Naqvi, Senior Advocate and Additional Advocate General appearing with Mr.M.R.Kalam on behalf of respondent No.1-State of Rajasthan has stated that the University has been established under the Act of 2005, however, rest of the matter is between the petitioner and other Universities, which have also been established in accordance with the provisions of the Act of 2005.
The stand of respondent No.5-University is that no prior approval of AICTE is required under the AICTE Act, 1987 as laid down by the Apex Court in Bharathidasan University & Anr. Vs. All India Council for Technical Education & Ors., AIR 2001 SC 2861 and even under the regulations framed in 2012, no prior approval is required; only information as desired by the AICTE is required to be uploaded by the university on its official website as mentioned in the Regulations 2012. Inspection can be made by the AICTE of the technical entities of Universities to verify the correctness of information uploaded by them and to ascertain the standards of technical education; in case any violation of standards, norms etc.,laid down by the AICTE is found, the AICTE can make its recommendations to the concerned authorities for taking appropriate action. Thus, prayer made in the writ petition is misconceived and even AICTE Act, 1987 and the Regulations of 2012 do not come in the way of respondent No.5 from admitting the students.
Mr.Poonam Chand Bhandari, counsel appearing on behalf of the petitioner has submitted that neither norms are being fulfilled by respondent No.5-University and several other Universities whose impleadment had been made nor prior approval from AICTE has been obtained by them; one of the law college has also not fulfilled the requirements and has not obtained prior approval of the Bar Council of India. However at this stage, with respect to law college, counsel has prayed for liberty to file separate writ application. Liberty prayed for is granted. Thus, he has confined his prayer only as against respondent No.5 and other Universities who have not obtained prior approval of AICTE/UGC.
Mr.R.K.Agarwal, learned senior counsel appearing with Mr.Naresh Gupta on behalf of respondent No.5 has submitted that prior approval of AICTE/UGC is not necessary as laid down by the Apex Court in Bharathidasan University(supra) and even under Section 39 of the Act of 2005 which has been relied upon by the petitioner. However, the AICTE has to ensure that norms or standards laid down by Regulations of 2012 are complied with by the department of the concerned University, and in case of violation thereof, on recommendations of the AICTE, appropriate action can be taken. Thus, the respondents have jointly prayed that prior approval need not to be obtained or to be granted by the AICTE/UGC.
The petitioner has neither made any averment nor facts have been mentioned with respect to various Universities whose joinder as respondents had been made as per the amendment application dated 3.8.2012. In these circumstances, we find that the amendment sought was misconceived and no relief can be given to the petitioner in this case against various other Universities arrayed by way of amendment application. At this stage, counsel appearing on behalf of the petitioner has prayed for liberty to file fresh writ application, in case necessity arises. However, we find that in absence of amending pleading and the relief clause joinder is misconceived. We do not find any ground to proceed against such universities.
Coming to the relief prayed as against respondent No.5-University, we find that the question of prior approval of AICTE is covered by the decision rendered by the Apex Court in Bharathidasan University(supra), wherein the Apex Court has clearly laid down that the University as defined under Section 2(i) of the AICTE Act is different from the technical institutions which has been defined in Section 2(h) of the Act; prior approval is necessary for technical institution and the university is different from it. It has also been held by the Apex Court that the AICTE created under the Act is not intended to be an authority either superior to or supervise and control the universities and thereby superimpose itself upon such universities merely for the reason that it is imparting teaching in technical education or programmes in any of its departments or units. The Apex Court has laid down thus:-
10. Since it is intended to be other than a University, the Act defines in Section2(i)'University' to mean a University defined under Clause (f) of Section2of the University Grants Commission Act, 1956 and also to be inclusive of an institution deemed to be a University under Section3of the said Act. Section10of the Act enumerates the various powers and functions of the AICTE as also its duties and obligations to take steps towards fulfilment of the same. One such as envisaged in Section10(1)(k)is to "grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. Section23, which empowers the Council to make Regulations in the manner ordained therein emphatically and specifically, mandates the making of such Regulations only "not inconsistent with the provisions of this Act and the rules". The Act, for all purposes and throughout maintain the distinct Identity and existence of 'technical institutions' and 'universities' and It is in keeping tune with the said dichotomy that wherever the University or the activities of the University are also to be supervised or regulated and guided by the AICTE, specific mention has been made of the University along side the technical institutions and wherever the University is to be left out and not to be roped in merely refers to the technical institution only in Sections10,11and22(2)(b). It is necessary and would be useful to advert to Section10(1)(c), (g), (o) which would go to show that Universities are mentioned along side the 'technical institutions' and Clauses (k), (m), (p), (q), (s) and (u) wherein there is conspicuous omission of reference to Universities and reference being made to technical institutions alone. It is equally important to see that when the AICTE is empowered to inspect or cause to inspect any technical institutions in Clause (p) of Sub-section (1) of Section10without any reservation whatsoever, when it comes to the question of universities it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. The inspection may be made or cause to be made of any department or departments only and that too, in such manner as may be prescribed as envisaged In Section11of the Act. Clause (t) of Sub-section (1) of Section10envisages the AICTE to only advice the UGC for declaring any institution imparting technical education as a deemed University and not do any such, thing by itself. Likewise, Clause (u) of the same provision which envisage the setting up of a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de-recognition of the institution or the programme. All these vitally important aspects go to show that the AICTE created under the Act is not intended to be an Authority either superior to or supervise and control the Universities and thereby super impose itself upon such Universities merely for the reason that it is imparting teaching in technical education or programmes in any of its Departments or Units. A careful scanning-through of the provisions of the AICTE Act and the provisions of the UGC Act in juxtaposition, will show that the role of AICTE vis-a-vis the Universities is only advisory, recommendatory and a guiding factor and thereby subserve the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to Issue and enforce any sanctions by itself, except submitting a Report to the UGC for appropriate action. The conscious and deliberate omission to enact any such provision in the AICTE Act in respect of Universities is not only a positive indicator but should be also one of the determining factors in adjudging the status, role and activities of AICTE vis-a-vis Universities and the activities and functioning of its departments and units. All these vitally important facets with so much glaring significance of the scheme underlying the Act and the language of the various provisions seem to have escaped the notice of the learned Judges, their otherwise well-merited attention and consideration in their proper and correct perspective. The ultra activist view articulated in M. Sambasiva Rao's case on the basis of supposed intention and imagined purpose of the AICTE or the Act constituting it, is uncalled for and ought to have been avoided, all the more so when such an interpretation is not only bound to do violence to the language of the various provisions but also inevitably render other statutory authorities like UGC and Universities irrelevant or even as nonentities by making the AICTE a super power with a devastating role undermining the status, authority and autonomous functioning of those institutions in areas and spheres assigned to them under the respective legislations constituting and governing them.
11. In Unni Krishnan's case this Court was not concerned with issues of the nature now sought to be raised and the observations made therein in the context of disputes pertaining to the powers, rights and extent to which the State Legislature or Government could interfere, regulate or prohibit the rights to establish and run professional colleges cannot be taken out of their context and purpose to be pressed into service in this case. As a matter of fact, even this Court, which formulated a scheme to prevent evils of capitation fees etc., specifically excluded from its purview colleges run by the Government and the Universities. Equally, the consideration in Adhiyaman Engineering College case was the question as to the relative scope and extent of control of a professional engineering college by the State Government in the teeth of the AICTE Act and the powers exercisable by the AICTE under the provisions of the said Act, Rules and Regulations made there under. The decisions, the correctness of which is under our consideration in this case, have not kept into consideration before the nature and character of the issues raised in the two decisions of this Court noticed above before relying upon the observations contained therein in dealing with the rights of an university constituted under a State enactment, which; apart from the enactment constituting it, is governed by the provisions of the UGC Act, also made by the Parliament. The decision of the Andhra Pradesh High Court in M. Sambasiva Rao's case has unduly oversimplified and underscored the status, position, as well as the importance of the UGC by sating that the UGC was concerned only with the object of providing grants and financial assistance to educational institutions and serving as a recommendatory and regulatory body completely loosing sight of its superior, vital and exclusive role ordained to it by the Parliament itself as an expert body in regard to "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions", and the standards of teaching and examination in Universities, even in the absence of the UGC and that too without a proper and comparative consideration of the relative scope and effect of the respective role of the UGC as well as the AICTE.
12. It is by now well-settled that Parliament has enacted the University Grants Commission Act, 1956 as well as the AICTE Act, 1987 in the purported exercise of the powers envisaged in Entry 66 of List-I of the VIIth Schedule to the Constitution of India, which reads as "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." It was permissible for the Parliament to enact a law with the object and aim of co-ordination and determination of standards among a particular class or category of institutions, which may deal with different kinds of education and research as also scientific and technical institutions of different disciplines and specialised branches of even such disciplines. The Parliament, while enacting the AICTE Act, was fully alive to the existence, in full force and effect the provisions of the UGC Act, 1956, which specifically dealt with the coordination and determination of standards at university level of institutions as well as institutions for higher studies of the category or class other than but deemed to be universities and yet roped into the definition of "technical institution" only institutions not being a University as defined in Section2(i). Apart from so defining technical institutions so as to be exclusive of University even in empowering the AICTE to do certain things, special care seems to have been conspicuously and deliberately taken to make specific mention of universities, wherever and whenever alone the AICTE was expected to interact with Universities and University Departments as well as its constituent institutions. In the statement of objects to the AICTE Act, the evil sought to be curbed was stated to be the coming up indiscriminately of a number of private engineering colleges and polytechnics in complete disregard of the guidelines resulting in diluted standards, unplanned growth, inadequate facilities and lack of infrastructure facilities in them and not of any anomalies arising out of any university bodies of UGC to even think of either sidelining or subjugating them by constituting AICTE. The guarded language employed for the said purpose and deliberate omission to refer to the universities in Section10(1)(k)of the AICTE Act while empowering AICTE to accord approval for starting new technical institutions and introduction of new programmes or courses by or in such institutions cannot be ignored to be of any insignificance. A careful analysis of the various provisions contained in Sections10,11and22will further go to show that the role of interaction conferred upon AICTE vis-a-vis Universities is limited to the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it, with no further or direct control over such universities or scope for any direct action except bringing it to the notice of the UGC or other authorities only, of any lapses in carrying out any directions of the AICTE in this regard, for appropriate action. While stating that autonomy of universities should not mean a permission for authoritarian functioning, the High Courts by the construction placed by them have virtually allowed such authoritarianism to the AICTE to such an extent as to belittle the importance and elegant role assigned to the universities in the Educational system of the country and rendered virtually subordinate to the AICTE. In our view, that does not seem to be the object of creating AICTE or passing of the AICTE Act. Such construction as has been placed by the Court in M. Sambasiva Rao's case which found favour of acceptance of the Court in the present case ought to have been avoided and the same could neither be said to have been intended or was ever in the contemplation of the Parliament nor should the UGC and the universities been relegated to a role subordinate to the AICTE. The UGC and universities have always had and have an accepted and well-merited role of Primacy to play in shaping as well as stepping up a co-ordinate development and improvement in the standards of education and research in the sphere of education. When it is only institutions other than universities which are to seek affiliation, it was not correct to state in the decisions under challenge that an University, which cannot grant affiliation to a technical institution, cannot grant the same to itself. Consequently, the conclusions rendered based on the principles for classifying enactments into 'general law' and 'special law' to keep them within their respective limits or area of operation are not warranted and wholly uncalled for and do not merit our approval or acceptance.
Thus, prior approval from AICTE is not necessary as laid down by the Apex Court in Bharathidasan University(supra). Otherwise also, scheme of the Act of 1987 is clear as has been considered by Their Lordships of the Apex Court; we reject the submission with respect to prior approval of AICTE raised by Mr.Bhandari, in view of decision of the Apex Court in Bharathidasan University(supra).
Coming to the submission raised by Mr.Bhandari with respect to Section 39 of the Act of 2005, which has also been relied upon by him, the same is quoted below:-
39. University to follow rules, regulations, norms, etc. of the regulating bodies.- Notwithstanding anything contained in this Act, the university shall be bound to comply all the rules, regulations, norms, etc. of the regulating bodies and provide all such facilities and assistance to such bodies as are required by them to discharge their duties and carry out their functions.
The counsel for the petitioner was unable to point out which of the rules, regulation norm of the regulatory bodies has been violated by the respondent No.5 university. In order to find out violation of provision of Section 39 of the Act of 2005 by respondent No.5, counsel has not pointed out any specific provision except of AICTE Act which is answered against the petitioner in Bharathidasan University (supra). No provision of UGC Act or Regulation was pointed out which may have been violated. No provision requiring prior approval of UGC was pointed out. On the other hand, University established under the State Act is also covered within the definition of University as defined in Section 2(f) of University Grants Commission Act, 1956. As per function of UGC under Sections 12, 12A, 12B and 13 of the UGC Act of 1956, order on non-fulfilment of conditions can be passed as to stopping grant/financial assistance. It is not the case set up that UGC has passed any such adverse order against respondent No.5 on its inspection.
Coming to the Regulations of 2012 framed by the AICTE, which have come into force with effect from 25.6.2012, they were not applicable earlier. Technical entities have been defined in Regulation 2(iv) of the Regulations of 2012 to mean, Technical Institutions/Technical Departments/ Technical Schools and Technical Campuses of the Universities and; Technical Department/Technical Schools and Technical Campuses of the Deemed to be Universities declared under Section 3 of the UGC Act, 1956. Technical Department and Technical Institution have been defined in Regulation 2(v) and 2(vii) respectively.
Regulation 3 of the Regulations of 2012 deals with the powers of the AICTE. Regulation 3.1 provides that the technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State University shall upload such information as desired by the Council in the format prescribed on the web portal of the Council at URL : www.aicte-india.org at such intervals as specified by the Council. Regulation 3.2 provides that the information referred to in Regulation 3.1 may also be submitted as hard copy to the Council in the prescribed format. Regulation 3.3 provides that the technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State Universities, who shall not submit the information to the Council by the date prescribed by the Council, shall not be entitled for any financial or any other kind of assistance from the Council. Council may take any such action as it may deem fit against defaulting technical entities. Regulation 3.4 provides that the Council shall also report its finding in respect of the technical entities of the universities to the Central and/or State Government concerned and the University Grants Commission for necessary action as deemed necessary. Regulation 3.5 provides that the Council may cause an inspection of the technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State Universities, to verify the information furnished by them and to ascertain the standards of technical education. Regulation 3.6 provides that the Council after giving due opportunity to the concerned University to explain its position shall publish the names of such technical entities of the Universities and technical institutions declared as Deemed to be University/ Private University / State Universities on its official website, who in its opinion are not maintaining the standards of technical education as prescribed by the Council and/or not following the norms/standards/policies laid down by the Council from time to time for maintaining the standards of the technical education. Regulation 3.7 provides that the Council shall also report its findings alongwith its recommendations in respect of the technical entities of the universities and institutions declared as Deemed to be University to the Central and/or State Government concerned, the University Grants Commission and the relevant accreditation bodies/agencies in India for necessary action at their end. Regulation 3 is quoted below:
3. 3.1 The technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State University shall upload such information as desired by the Council in the format prescribed on the web portal of the Council at URL : www.aicte-india.org at such intervals as specified by the Council.
3.2 The information referred to in Regulation 3.1 may also be submitted as hard copy to the Council in the prescribed format.
3.3 The technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State Universities, who shall not submit the information to the Council by the date prescribed by the Council, shall not be entitled for any financial or any other kind of assistance from the Council. Council may take any such action as it may deem fit against defaulting technical entities.
3.4 The Council shall also report its finding in respect of the technical entities of the universities to the Central and/or State Government concerned and the University Grants Commission for necessary action as deemed necessary.
3.5 The Council may cause an inspection of the technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State Universities, to verify the information furnished by them and to ascertain the standards of technical education.
3.6 The Council after giving due opportunity to the concerned University to explain its position shall publish the names of such technical entities of the Universities and technical institutions declared as Deemed to be University / Private University / State Universities on its official website, who in its opinion are not maintaining the standards of technical education as prescribed by the Council and/or not following the norms/standards/policies laid down by the Council from time to time for maintaining the standards of the technical education.
3.7 The Council shall also report its findings alongwith its recommendations in respect of the technical entities of the universities and institutions declared as Deemed to be University to the Central and/or State Government concerned, the University Grants Commission and the relevant accreditation bodies/agencies in India for necessary action at their end.
In view of the aforesaid Regulations of 2012, it has rightly been admitted by Mr.Bharat Vyas, counsel appearing on behalf of respondents No.2, 3 & 4 that there is no power exists with the AICTE to grant prior approval to the University or Universities; inspection can be made by the AICTE only with a view to ascertain that they are complying the standards and norms laid down by it, to ascertain the correctness of the information furnished by them and the standards of technical education. However as per regulation 3.3, financial or any kind of assistance from the Council to such defaulting universities who have not submitted the information as desired by the Council, can be stopped. As per Regulation 3.4, the Council shall also report its finding in respect of the technical entities of the universities to the Central and/or State Government for necessary action as deemed necessary. But such action has to be taken only on recommendation of the Council to the Central and/or the State Government concerned. He has fairly stated that under the Regulations, the direction has yet to be issued by the AICTE to upload the necessary information, only thereafter for its verification, inspection can be made by the AICTE and in case any violation of norms, standards etc. is found, recommendation can be made by the AICTE to the Central and/or State Government concerned, as mentioned in the Regulation 3. It is also fairly stated that no prior approval of the AICTE is necessary under the Regulations of 2012. Thus, the admissions given by respondent No.5-University cannot be said to be illegal in any manner.
In view of the aforesaid stand of the AICTE, it is apparent that after uploading of the necessary information as desired by it, inspection can be made by the AICTE to ascertain its correctness and in case any violation of norms, standards etc. is found, recommendation for taking necessary action can be made by the AICTE to the Central and/or State Government concerned; however, such action can only be taken in accordance with Regulation 3. Admittedly, no such exercise has been undertaken by the AICTE. Thus, no writ or direction need to be issued in this regard at this stage.
Resultantly, we find the writ petition to be meritless and the same is hereby dismissed. IA No.35692/2012 is disposed of.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, P