Orissa High Court
Orissa Private Engineering College ... vs All India Council For Technical ... on 19 September, 2016
Equivalent citations: AIR 2016 (NOC) 737 (ORI.)
Author: Vineet Saran
Bench: Vineet Saran
IN THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 8128 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Orissa Private Engineering College
Association (OPECA) ..... Petitioner
-Versus-
All India Council for Technical Education
and ten others .... Opp.Parties.
For the petitioner : M/s. S.K. Padhi, Senior Advocate,
Mr. D.P. Dash, B.K. Mishra and
S.K. Barik, Advocates.
For the opp. parties : Mr. S.S. Mohapatra (O.P.No.1)
Mr. B.P.Pradhan,
Addl. Govt. Advocate (O.P.No.2)
Mr. S.Palit (O.Ps.3,5,6,9 & 11)
Mr.B.K.Nayak (O.P.No.4)
Mr.A.K.Mohaptra (O.P.No.10)
PRESENT :
THE HON'BLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
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Date of hearing : 01.09.2016 : Date of Judgment : 19.09.2016
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VINEET SARAN, C.J. The paper book of this case is very voluminous, parties are many and learned counsel have advanced lengthy arguments, but the point involved in this petition in short is whether the University or its constituent colleges are required to take approval of the All India Council for Technical Education (for short -2- 'AICTE') for increase in the number of seats for admission of students or opening of new branches in their institutions.
2. The petitioner, Orissa Private Engineering College Association (for short 'OPECA') is an association of professional and technical colleges in the State of Odisha and has filed this writ petition for a direction to the AICTE not to accord approval in respect of the increased intake of students by the institutions owned by the State Government, its Universities and constituent colleges, unless they fulfill all the requirements prescribed by the AICTE. It is further prayed for passing directions to ensure that no institution be allowed to increase its intake of students and open/add new courses and programmes and admit students without valid approval of the AICTE for the session 2015-16 onwards.
3. Opposite party No.1 is the AICTE which regulates the professional and technical institutions; opposite party No.2 is the State of Odisha; opposite parties No. 3, 5, 6 and 11 are the constituent colleges of Biju Patnaik University of Technology (B.P.U.T.); opposite party No.4 is a Government College affiliated to B.P.U.T.; opposite party No.7 is Veer Surendra Sai University of Technology, Burla;
opposite party No.8 is the 'Policy Planning Body'; opposite party No.9 is the Orissa Joint Entrance Examination (OJEE) Committee and opposite party No.10 is B.P.U.T. -3-
4. The brief facts of this case are that for the session 2015-16, the University, as well as its constituent colleges and also its affiliated college run by the State Government, have increased the number of seats in their institutions, admission to which is granted through the OJEE.
5. The AICTE is a Council established under the All India Council for Technical Education Act, 1987 with a view to the proper planning and coordinated development of the technical education system throughout the country. It has to function for the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system. The main object and purpose of such enactment is to vest the powers under the AICTE as a statutory authority for planning, formulation and the maintenance of norms and standards, accreditation, funding of priority areas, monitoring and evaluation, maintaining parity of certificates and awards and ensuring the coordinated and integrated development of technical and management education. Further, it seeks to provide statutory powers to the AICTE to ensure:
(i) proper planning and coordinated development of the technical education system throughout the country;
(ii) promotion of qualitative improvement of
technical education in relation of planned
quantitative growth, and
(iii) regulation of the system and proper
maintenance of norms and standards.
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6. B.P.U.T. is a State Government University constituted under the Biju Patnaik University of Technology Act, 2002 (for short, 'B.P.U.T. Act, 2002'), and like other Universities, the said University is also governed and controlled by the University Grants Commission Act, 1956. In the year 2007, the State Government enacted the Orissa Professional Institutions (Regulation of Admission and fixation of Fee) Act, 2007 and under the said Act, the Orissa Joint Entrance Examination (OJEE) Committee was constituted, which holds the examination and counseling for admission in various technical institutions of the State. Under Section 37 of the B.P.U.T. Act, 2002, the opposite party No.3, College of Engineering and Technology (CET), was included as a constituent college of the B.P.U.T. Subsequently, in the year 2006, 2008 and 2009 the opposite parties No. 11, 6 and 5 respectively, were also notified as constituent colleges of the B.P.U.T. under Section 37 read with Section 2(g) of the B.P.U.T. Act, 2002. In the year 2013, for the first time the number of seats in the Government Colleges and the constituent colleges of the B.P.U.T. was enhanced/increased, so as to promote the cause of education. Being aggrieved by that increase in the intake of students in the constituent colleges of the University, which was further enhanced in the year 2015-16, the petitioner-association has approached this Court, primarily on the ground that such increase could only be allowed after approval was granted by AICTE, which has not been accorded.-5-
7. We heard Shri S.K. Padhi, learned Senior Counsel appearing along with Shri D.P. Dash, learned counsel for the petitioner; Shri S.S. Mohapatra, learned counsel for opposite party No.1-AICTE; Shri B.P. Pradhan, learned Addl. Government Advocate appearing for opposite party No.2-State of Odisha; Shri S. Palit, learned counsel appearing for contesting opposite parties No. 3, 5, 6, 9 and 11, i.e. the constituent colleges and OJEE; Shri B.K. Nayak, learned counsel for opposite party No.4- Government College affiliated to the B.P.U.T.; Shri S. Udgata, learned counsel for opposite party No.7-Veer Surendra Sai University of Technology; and Shri A.K. Mohapatra, learned counsel for opposite party No.10-B.P.U.T.
8. The submission of Shri S.K.Padhi, learned Senior Counsel for the petitioner is that no technical institution can either be allowed to increase the number of seats for admission, or open/add new courses or programmes, without valid approval of the AICTE. It is contended that the constituent colleges as well as the affiliated Government colleges and also the University, running technical courses, would be 'technical institutions' as defined under the AICTE Act and would thus be governed by the said Act, which provides for allocation of the number of students that can be admitted in the technical institutions, and permission for increase of the number of seats or opening/adding new courses has to be accorded by the AICTE, which has not been done in the case of the University, as well as its constituent colleges and affiliated government college. It is -6- submitted that such institutions in the past have always sought the approval of the AICTE with regard to allocation of number of seats, and even the BPUT Act requires such technical institutions to follow the AICTE directives.
9. The contention is that the State Government had, for increase in the intake of students, sought the approval of AICTE which has not yet been granted, but they have gone ahead and increased the seats, even when the AICTE Regulations of 2014 mandatorily requires accreditation of all Universities, and seats cannot be enhanced in the constituent colleges without such accreditation being granted by the AICTE. It is further submitted that the OJEE has wrongly allocated the seats to such constituent colleges of the University without the AICTE having approved the increase in the number of their seats. The further contention is that though the opposite party No.3 may be treated as a constituent college of the BPUT as it has been provided for under Section 37 of the B.P.U.T. Act, but the Government could not have declared the opposite parties No. 5, 6 and 11 as constituent colleges of BPUT, as the State Government has no legal authority to do so. It was lastly contended that the opposite party No.4 is, in any case, an affiliated college and not a constituent college of the University, and even though it may be a government college, under the AICTE Act there is no distinction between government and private colleges, and as such the norms of AICTE Act and Regulations govern -7- the said opposite party No.4 in all respects, including increase in the number of seats.
10. Reliance in support of the submissions has been placed on the decisions of the apex Court rendered in the cases of Bharathidasan University Vs. All India Council for Technical Education, (2001) 8 SCC 676; Parshvanath Charitable Trust Vs. All India Council for Technical Education, (2013) 3 SCC 385; and Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54.
11. It is submitted that after the aforesaid decisions were rendered with regard to admission in technical institutions, the apex Court in the case of Orissa Technical Colleges Association Vs. AICTE arising out of Special Appeal (Civil) No. 7277/2014 has passed two interim orders dated 17.4.2014 and 9.5.2015 in terms of which, it is contended that the approval of AICTE would be compulsory and mandatory for all technical colleges for increase in the intake of students.
12. Per contra, Shri S. Palit, learned counsel appearing for the contesting opposite parties No. 3, 5, 6, 9 and 11, i.e. constituent colleges of the University and OJEE, has submitted that Section 2(h) of the AICTE Act defines "technical institution", which means an institution, not being a University, which offers courses or programmes of technical education. Section 2(i) of the said Act defines -8- 'University' to mean a University defined under clause (f) of section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a University under section 3 of the Act. It is contended that in view of the same, the University or its constituent colleges, could not be considered as 'technical institutions' to be governed by the AICTE Act. Merely because it is mentioned in Section 5 of the BPUT Act that the power and functions of the University would be subject to Orders, Rules, Regulations, Guidelines and directions of the Council under the provisions of the AICTE Act, 1987, the same would not mean that the BPUT would be governed by the provisions of the AICTE Act and would be treated as 'technical institution' for the purpose of intake of students or for opening of new courses / programmes in the University or its constituent colleges.
13. Shri Palit has also placed reliance on the decisions of the apex Court in Bharathidasan (supra) and in Association of Management of Private Colleges Vs. All India Council for Technical Education, (2013) 8 SCC 271. It is contended that merely because the University and its constituent colleges sought for approval from AICTE, which may have been done as an abundant precaution even though not legally required, the same would not bind the University or its constituent colleges to be governed by the provisions of the AICTE Act, as there can be no concession with regard to any provision of law.
-9-14. Shri A.K. Mohapatra, learned counsel for BPUT-
opposite party No.10 has contended that the petitioner-Association would not have locus standi to maintain this writ petition as it has not been pleaded as to what legal injury or prejudice has been caused to the association or its members. Since the Association has not approached this Court to enforce any personal or individual right, it could not be said to be "person aggrieved" and hence this writ petition, at its behest, is not maintainable. It is thus contended that no cause of action arises for the petitioner to approach this Court under Article 226 of the Constitution of India.
15. The further submission of the learned counsel is that AICTE Act, 1987 and the UGC Act, 1956 are independent Acts governing respective fields, and there is no clash. The University and its constituent colleges are governed by the UGC Act, whereas other technical institutions are governed by the AICTE Act. The later has been enacted with a view for proper planning and coordinated developed system throughout the country for regulation and for proper maintenance of the standard of technical education system and matters connected therewith, but it is contended that the said Act is not for regulating the University or its constituent colleges, as technical institutions are specifically defined under Section 2(h) of the AICTE Act and it keeps University out of such definition.
16. The submission is that the apex Court in the case of Bharathidasan (supra) has dealt with the question of applicability of
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the provision of the AICTE Act in the case of institutions/colleges and held that provisions of the said Act would not govern the University or its constituent colleges. It was lastly contended that the Regulation of 2014 framed under the AICTE Act is, in any case, void and though the provisions of the same have not been challenged by the University, but the party at suffering can always take the plea that the said regulation is void. It is, however, contended that the said Regulations would not be applicable in the case of the University, as when the Act itself is not applicable, then the question of applicability of its Regulations would not arise.
17. Shri S. Udgata, learned counsel for the opposite party No.7- Veer Surendra Sai University of Technology has reiterated that the University is different from technical institutions and has contended that when the AICTE Act would not apply to the University, the question of Regulations being applicable would not arise. He has also placed reliance on the decision of the Supreme Court in the case of Bharathidasan (supra).
18. Shri B.P. Pradhan, learned Addl. Government Advocate appearing for the opposite party No.2-State of Odisha, and Shri B.K. Nayak, learned counsel for the opposite party No.4 have adopted the argument of Shri Palit, learned counsel for the contesting opposite parties. They have further submitted that the petitioner-Association has no locus standi to maintain this writ petition, as it cannot be said to be aggrieved by any action of the opposite party.
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19. For proper appreciation of this case we are reproducing the relevant provisions of the UGC Act, AICTE Act & BPUT Act hereunder :
(i) UGC ACT, 1956
2. In this Act, unless the context otherwise requires-
(a) "Commission" means the University Grants Commission established under section 4;
(f) "University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recoginsed by the Commission in accordance with the regulations made in this behalf under this Act.
12. Functions of the Commission : It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may-
(a) inquire into the financial needs of Universities;
(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose;
(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem 1 [necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose:
Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve,;
[(cc) allocate and disburse out of the Fund of the Commission, such grants to institution deemed to be Universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely:-
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose;
"(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and, disbursing out of the Fund of the Commission such grants as the Commission may deem necessary".
(d) recommend to any University the measures necessary for the improvement of University education and advise the University upon
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the action to be taken for the purpose of implementing such recommendation;
(e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;
(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;
(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be;
(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;
(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;
(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.
(ii) AICTE ACT, 1987
2.Definitions.- In this Act, unless the context otherwise requires,-
(b) "Council" means the All India Council for Technical Education established under section 3;
(g) "technical education" means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare;
(h) "technical institution" means an institution, not being a University, which offers courses or programmes of technical education and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;
(i) "University" means a University defined under clause (f) of section 2 of the University Grants Commission Act, 1956 (3 of 1956) and includes an institution deemed to be a University under section 3 of that Act.
10. Functions of the Council.- It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes for performing its functions under this Act, the Council may-
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(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the
(b) coordinate the development of technical education I the country at all levels;
(c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to-
(i) technical institutions, and
(ii) Universities imparting technical education in coordination with the Commission;
(d) promote innovations, research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for over-all improvement of educational processes;
(e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;
(f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community;
(g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;
(h) formulate schemes for the initial and in-service training of teachers and identify institution or centres and set up new centres for offering staff development programmes including continuing education of teachers;
(I) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;
(j) fix norms and guidelines for charging tuition and other fees;
(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;
(l) advise the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examinations and awarding of membership certificates;
(m) lay down norms for granting autonomy to technical institutions;
(n) take all necessary steps to prevent commercialisation of technical education;
(o) provide guidelines for admission of students to technical institutions and Universities imparting technical education;
(p) inspect or cause to inspect any technical institution;
(q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council;
(r) take steps to strengthen the existing organisations, and to set up new organisations to ensure effective discharge of the Council's responsibilities and to create positions of professional, technical and supporting staff based on requirements;
(s) declare technical institutions at various levels and types offering courses in technical education fit to receive grants;
(t) advise the Commission for declaring any institution imparting technical education as a deemed University;
(u) set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of
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guidelines, norms and standards specified by it and 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;
(v) perform such other functions as may be prescribed.
11. Inspection.- (1) For the purposes of ascertaining the financial needs of technical institution or a University or its standards of teaching, examination and research, the Council may cause an inspection of any department or departments of such technical institution or University to be made in such manner as may be prescribed and by such person or person as it may direct.
(2) The Council shall communicate to the technical institution or University the date on which any inspection under sub-section (1) is to be made and the technical institution or University shall be entitled to be associated with the inspection in such manner as may be prescribed.
(3) The Council shall communicate to the technical institution or the University, its views in regard to the results of any such inspection and may, after ascertaining the opinion of that technical institution or University, recommend to that institution or University the action to be taken as a result of such inspection.
(4) All communications to a technical institution or University under this section shall be made to the executive authority thereof and the executive authority of the technical institution or University shall report to the Council the action, if any, which is proposed to be taken for the purposes of implementing any such recommendation as is referred to tin sub-section (3).
22. Power to make rules. - (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) the procedure to be followed by the members in the discharge of their functions;
(b) the inspection of technical institutions and Universities;
(c) the form and manner in which the budget and reports are to be prepared by the Council;
(d) the manner in which the accounts of the Council are to be maintained; and
(e) any other mater which has to be, or may be, prescribed.
23. Power to make regulations - (1) The Council may, by notification in the Official Gazette, making regulations not inconsistent with the provisions of this Act, and the Rules generally to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) regulating the meetings of the Council and the procedure for conducting business threat;
(b) the terms and conditions of service of the officers and employees of the Council;
(c) regulating the meetings of the Executive Committee and the procedure for conducting business thereat:
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(d) the area of concern, the constitution, and powers and functions of the Board of Studies;
(e) the region for which the Regional Committee be established and the constitution and functions of such Committee.
(iii). BPUT ACT, 2002
2. Definitions - In this Act, unless the context otherwise requires,-
(b) "affiliated institution" means a College or an institution affiliated to the University and includes a College or an institution deemed to be an affiliated College or institution under this Act;
(f) "College" means an institution admitted to the University in accordance with the provisions of this Act and the Statutes, and includes a College managed by the University;
(g) "Constituent College" means a College established, managed, maintained and controlled by the University, and includes a College or a Department transferred from any other University to the management, maintenance and control of the University;
(h) "Council" means the All India Council for Technical Education established under the provisions of the All-India Council for Technical Education Act, 1987;
(s) "University" means the Biju Patnaik University of Technology established under this Act; and
(t) "University Grants Commission" means the University Grants Commission constituted under the University Grants Commission Act, 1956,
4. Objects : The University shall have the following objects, namely:-
(i) to promote education, research and training in engineering and technology including information technology and its application, architecture, pharmacy, applied arts and crafts management and applied sciences for the advancement of knowledge and for the betterment of society;
(ii) to improve the quality of education, research and training in the field of engineering and technology, including information technology and its application, architecture, pharmacy, applied arts and crafts management and applied sciences;
(iii) to provide facilities and opportunities for graduate and post-
graduate education in engineering and technology including information technology and its application, architecture, pharmacy, applied arts and crafts management and applied science and by instruction, training, research, development and extension and by such other means as the University may deem fit;
(iv) to devise and implement programmes of education in engineering and technology including information technology and its application, architecture, pharmacy, applied arts and crafts management and applied science that are relevant to the changing needs of society;
(v) to serve as a centre for fostering co-operation and interaction between the academic and research community on the one hand and industry on the other;
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(vi) to organize exchange programmes with other institutions of repute in India and abroad with a view to keeping abreast of the latest developments in relevant areas of teaching and research;
(vii) to provide for industrial consultancy service; and
(viii) to undertake such other activities as may be required to fulfil the above objects.
5. Powers and functions of University : Subject to such orders, rules, regulations, guidelines and directions as may be issued from time to time, by the Central Government or the Council under the provisions of All-India Council for Technical Education Act 1987, the University shall have the following power and functions, namely:-
(i) to establish and maintain Institutions for higher studies and research in engineering and technology including information technology and its application, architecture, pharmacy, applied arts and crafts management and applied science;
(ii) to accord affiliation to any College or Institution of engineering and technology, including information technology and its application, architecture, pharmacy, applied arts and crafts management or applied sciences as an affiliated College or Institution;
(iii) to grant autonomy to any affiliated College or Institution imparting education in engineering and technology including information technology and its application, architecture, Pharmacy, applied arts and crafts, management and applied sciences;
(iv) to provide for instruction and training in such branches of learning as are in keeping with the objects of the University and to make provision for research and for the advancement and dissemination of knowledge;
(v) to institute degrees, titles, diplomas and other academic distinctions;
(vi) to grant, subject to such conditions as the University may determine diplomas or certificates and confer degrees and other academic distinctions on the basis or examinations, evaluation or any other method of assessment, on deserving persons;
(vii) to confer honorary or other distinctions on distinguished persons in accordance with the conditions to be prescribed by the Statutes;
(viii) to withdraw or cancel degrees, titles, diplomas certificates or other distinctions under such conditions as may be prescribed by the Statues;
(ix) to take measures to have constant interaction with industries and other employers of technical manpower for orienting the education and training towards the needs of industries and other employers;
(x) to provide common forum for interaction between research institutions, industries and other employers and constituent Colleges or departments and affiliated institutions of the University to ensure transfer of technology from research institutions to industries and to prepare the students of the University for using and disseminating innovative technology;
(xi) to act in furtherance of the entrepreneurial skills and abilities among students;
(xii) to assess the needs of the State and the Country in terms of subjects, fields of specialization, level of education and training of technical manpower both on short-term and long-term basis and to introduce or encourage introduction of innovative training
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programmes and to reorient existing training programmes to meet such needs;
(xiii) to make arrangements for promoting the health, general welfare and moral well-being of students and take such measures as would foster in them habits of hard work, self-discipline and spirit of service to society;
(xiv) to fix the fees payable to the University and to demand and receive such fees;
(xv) to hold and manage endowments and bursaries and to institute and award fellowships, scholarships studentship, medals and prizes;
(xvi) to institute, raise and provide funds wherever necessary for carrying out the functions of the University;
(xvii) to co-operate with other Universities or Institutions or authorities or associations in such manner and for such purposes as the Board may determine;
(xviii) to establish, maintain, manage and confer recognition to hostels;
(xix) to co-ordinate, supervise, regulate and control the teaching, consultancy and conduct of research in the affiliated and constituent institutions to the extent deemed necessary;
(xx) to determine the powers and duties of the officers and other employees of the University other than those provided in this Act; (xxi) to provide for the inspection of affiliated institutions and lay down standards of instruction and research;
(xxii) to institute and establish Professorships, Readerships, Lectureships and any other teaching and research posts required by the University and to appoint persons to such posts; and (xxiii) to do all such acts and things as may be required in furtherance of the objects of the University.
17. BOARD : (1) The Board shall be the chief executive body of the University and consist of the following members, namely:-
Ex-officio members:-
(i) the Vie-Chancellor;
(ii) the Secretary to Government, Industries Department;
(iii) the Secretary to Government, Finance Department;
(iv) the Secretary to Government, Higher Education Department;
(v) the Secretary to Government, Science and Technology Department;
(vi) the Director of Technical Education and Training. Other members-
(vii) one persons from among Directors/ Deans of the University, nominated by the Vice-Chancellor;
(viii) one Principal of any of the affiliated or constituent Colleges of the University, nominated by the Vice-Chancellor ;
(ix) two members of the Academic Council, elected by the members thereof ;
(x) two members of the Orissa Legislative Assembly, elected by the members thereof ;
(xi) two persons representing industries, both Private and Public Sectors, nominated by the Chancellor ;
(xii) one Professor or Director of a premier technical education institution like IIT or IIM nominated by the Chancellor ;
(xiii) one official representative of the Council nominated by it ; and
(xiv) one member from amongst the members of Governing Bodies of affiliated institutions, nominated by the Vice-Chancellor.
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(2) The term of office of the members of the Board, other than the exofficio members, shall be three years from the date of their nomination or election, as Board. the case may be, and they shall not be eligible for re nomination re-election for the next consecutive term.
(3) The Secretary to a Government Department may nominated any officer not below the rank of a Joint Secretary to attend any or all the meeting of the Board and the officer so nominated shall have all the powers and privileges of the members of the Board.
31. Procedure for making Statutes -(1) The First Statutes of the University shall be made by the Government by notification and shall continue to be in force until amended or superseded by Statutes made by the Board in accordance with the provisions of this section.
TRANSFER OF COLLEGE, INSTITUTIONS, EMPLOYEES AND PROPERTY THEREOF AND AFFILIATION, ETC.
37. Transfer of constituent colleges or institution of other Universities -
(1) Notwithstanding anything contained in the Orissa Universities Act, 1989 or the Statutes made thereunder, or in the Orissa University of Agriculture and Technology Act, 1965 or the Statutes made thereunder, any or all the constituent Colleges, Institutions or Departments of other Universities as may be specified in the notification issued by the Government in this behalf shall, with effect from such date as may be specified in the said notification, be disaffiliated from the respective other Universities and be formed into and maintained as constituent Colleges, Institutions or the Departments of the University : Provided that the College of the Engineering and Technology, Bhubaneswar and the University College of Engineering, Burla shall stand transferred from the other Universities concerned and be formed into and maintained as constituent Colleges of the University, immediately and the provisions of sub-sections (2) and (3) shall apply on such transfer.
(2) On and from the date so specified under sub-section (1),- (i) the control and management of the colleges or institutions or Departments notified under sub-section (1); and (ii) all the properties, assets and liabilities and rights and obligations of the respective Universities in relation to the said colleges, institutions or Departments including all obligations of the Government in relation thereto.
3) The compensation payable by the University to the other Universities in respect of the properties, assets and rights belonging to the other Universities transferred to, or vested in, the University under sub-section (2) in relation to any college or institution or Department to which the provisions of this Act are applied under sub-section (1) shall be such as may be agreed upon between the respective other Universities and the University:
Provided that where no such agreement is reached within a period of one year from the date specified under sub-section (1), the Government may, after giving an opportunity to the other Universities concerned and the University for making their representations in this behalf, determine the compensation payable
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to such other Universities and the compensation so determined shall be final and binding on such other Universities and the University.
20. In exercise of power conferred under sub-Section 1 of Section 23 read with Section 10 of the AICTE Act, 1987, Regulations for Mandatory Accreditation of all programmes/courses in Technical Education Institutions, University Departments and Institutions deemed to be Universities imparting Technical Education have been framed called as 'All India Council for Technical Education (Mandatory Accreditation of all programmes/courses in Technical Education Institutions, University Departments and Institutions deemed to be Universities imparting Technical Education) Regulations, 2014'. The relevant clause 1.2, 2(b) (i) (j) (k), (l) & (m) and Regulation 4 of the Regulations, 2014 are quoted below.
1.2 These regulation shall apply to :
a) All the technical education institutions including autonomous institutions;
b) All the Universities, Universities Departments running programs/Courses in Technical- Education;
c) All Institutions Deemed to be Universities under Section 3 of UGC Act, running programs /Courses in Technical Education;
2. Definitions :
b) 'Act' means the All India Council for Technical Education Act, 1987.
i) 'University' shall means a University defined under clause (f) of Section 2 of the University Grants Commission Act, 1956
j) `Deemed to be University' means an Institution declared as deemed to be University under section 3 of the University Grants Commission Act, 1956
k) 'Council' means All India Council for Technical Education established under Section 3 of the Act.
1) 'Technical Education' means programs of education, research and training in engineering, technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other program or areas as the central government may, in consultation with the Council, by notification in the official Gazette, declare;
m) 'Technical institutions' means an institution not being a University which offers courses or programs of technical education, and shall include such other institutions as the Central Government may, in consultation with the council, by
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notification in the Official Gazette, declare as technical institution;
4. Mandatory Accreditation :
4.1 It shall be mandatory for each technical education institutions, University Departments and Institutions Deemed to be Universities imparting Technical Education to get all its programs / Courses accredited by the Accreditation Agency after passing out of two batches or six years, whichever is earlier, in accordance with the norms and methodology prescribed by such agency or the Council, as the case may be. 4.2 Every program / Course in a technical education institution, University Department and Institution Deemed to be University imparting Technical Education, which has completed six years of existence or two batches having passed out, whichever is earlier, shall apply within six months from the date of coming into force of these regulations, to the Accreditation Agency, for accreditation.
4.3 Any program / Course in a technical education institution, University Department and Institution Deemed to be University imparting Technical Education, which has not completed six years of existence or two batches having passed out, whichever is earlier, shall, within a period of six months from date of such completion, apply to the Accreditation agency for accreditation. 4.4 Every program / Course in a technical education institution, University Department and Institution Deemed to be University imparting Technical Education, intending to commence academic operations after coming into force of these regulations, shall apply for accreditation to the Accreditation Agency, as per Clause 4.1 above.
21. On the basis of the judgment passed by the apex Court in P.A. Inamdar and others v. State of Maharastra, AIR 2005 SC 3226 and Islamic Academy of Education and others v. State of Karnataka, AIR 2003 SC 3724, the State Legislature have enacted law called "Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007". The relevant Section 2 (c),
(k), (u), and Section 4(6) of Act, 2007 are quoted below.
2. In this Act, unless the context otherwise requires ,_
(c) "BPUT" means Biju Patnaik University of technology established by the Biju Patnaik University of technology Act,2002
(k) "Joint Entrance Examination (JEE)" means entrance test conducted by the Policy Planning Body for all professional educational institutions, for determination of merit of the candidates followed by centralized counselling for the purpose of admission to such institutions through a single window system;
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(u) "professional educational institution", means college or school or an institute, by what ever name called 'imparting professional education or conducting professional educational courses leading to the award of a degree, diploma or a certificate by what ever name called, approved or recognized by the competent statutory body or affiliated to a University, in any of the following disciplines, namely :-
(i) Bachelor of Science Engineering, Bachelor of Engineering, Bachelor of Technology and Bachelor of Architecture ;
(ii) Master in Computer Application ;
(iii) Bachelor of Medicine and Bachelor of Surgery (MBBS) ;
(iv) Bachelor of Dental Surgery (BDS) ;
(v) Bachelor of Pharmacy;
(vi) Bachelor in Hotel Management and Catering Technology;
(vii) Master in Business Administration ;
(viii)Master of Science Engineering, Master of Engineering, Master of Technology and Master of Architecture ;
(x) Bachelor iri Bio-Technology ;
(x) All Master Degree courses in Medical Streams ;
(xi) Master of Pharmacy ; and
(xii) any other educational courses as may be declared by Government, by notification, from time to time;
4 (6) The Policy planning Body shall perform the following functions, namely :-
(a) regulate the admission ;
(b) formulate policy guidelines for holding JEE , 8
(c) constitute one or more sub-committees for efficient discharge of its functions in the matter of examination and admission ;
(d) formulate and recommend the reservation policy to Government for approval, which shall be with regard to reservation of seats in favour of Scheduled Castes, Scheduled Tribes, SEBC, green card holders, Ex-servicemen, sports persons and physically handicapped persons;
(e) determine the eligibility criteria and qualifying examination required for admission ; and
(f) perform such other functions as may be prescribed.
22. The Constitutional validity and vires of the said Act, 2007 was assailed by the petitioner before this Court in W.P.(C) No.4073 of 2007. The Division Bench of this Court declared the said "State Act" as invalid and un-constitutional which is reported in Vol.104 (2007) CLT 310 (Orissa Management Colleges Association Vrs. State of Orissa etc. etc.). The said judgment was challenged by the State of Orissa in S.L.P. (Civil) No.10318 of 2007. The Apex Court has stayed the operation of the impugned judgment and
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operation of Sections 4(1), 4(2), 4(4) as also 6(1), 6(2) and 6(3) of the aforesaid State Act, and also had been pleased to constitute the 'Policy Planning Body' (PPB) and 'Fee Structure Committee' (FSC) by directing the petitioner-association to act as member of the said two Committees. The said interim order is still in force and said SLPs are pending before the apex Court for adjudication.
23. Interim orders dated 17.4.2014 and 9.5.2015 passed by the Supreme Court in the case of Orissa Technical Colleges Association Vs. AICTE, in Special Appeal (Civil) No. 7277/2014, are extracted below :
"17.4.2014 :
In the counter affidavit filed on behalf of respondent No.1, i.e., All India Council for Technical Education(AICTE), it is stated that Approval Process Handbook (2013-14) is presently in force and the same has been extended and made applicable for the Academic Year 2014-15 as well.
AICTE shall now proceed in accordance with the Approval Process Handbook for the Academic Year 2014-15 insofar as the members of the petitioner Association and all colleges and institutions situated similarly to the members of the petitioner Association are concerned and necessary orders shall be issued by AICTE within ten days.
Prayer for interim relief is ordered accordingly."
(emphasis supplied) "9.5.2014 :
I.A. Nos. 2 & 3 of 2014:
The order dated 17.4.2014 passed by this Court is clarified and it is directed that prior approval of All India Council for Technical Education (AICTE) is compulsory and mandatory for conduct of a technical course including the MBA/Management Course by an existing affiliated Technical College and also new
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Technical College which will require affiliation by a University for conduct of its Technical Courses/Programmes for the academic year 2014-15.
The time given in the order dated 17.4.2014 is extended by 10.6.2014.
I.A. Nos. 2 & 3 of 2014 stand disposed of as above.
I.A. Nos. 1, 4 and 5 of 2014:
Mr. Bijan Kumar Ghosh, learned counsel for the applicants seeks withdrawal of I.A. Nos. 1,4 and 5 of 2014.
I.A. Nos. 1, 4 and 5 of 2014 are disposed of as withdrawn."
(emphasis supplied)
24. The UGC Act, 1956 was enacted by the Parliament with exclusive authority in regard to 'co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. The Commission is to act as an expert body to advise the Central Government on problems connected with the co-ordination of facilities and maintenance of standards in Universities. Such enactment comes under Entry 66 of List-I of the Seventh Schedule of the Constitution of India. The Preamble of the Act itself indicates that it is an Act to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission which came into force with effect from 05.11.1956. Similarly, the AICTE Act, 1987 was also enacted by the Parliament which comes under Entry 66 List-I of the Seventh Schedule of the Constitution of India which came into force with effect from 28.12.1987. The Preamble of the said Act provides for establishment of an All India Council for Technical Education with a view to the proper planning and co-ordinated development of the
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technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith.
25. On perusal of the aforementioned Acts of 1956 and 1987, it appears that even if both the Acts are enacted by the Parliament, the same are to operate in their respective fields which are not overlapping each other. The BPUT Act, 2002 has been enacted by the State Legislature to provide for establishment and incorporation of a Technological University in the State of Orissa and for matters connected therewith or incidental thereto. The BPUT is a University as defined under Section 2(i) of the AICTE Act, 1987 and Section 2(f) of the UGC Act. BPUT Act, 2002 deals with two broad categories of colleges/institutions, namely, (i) Constituent Colleges and (ii) Affiliated Colleges, as defined under Sections 2(g) and 2(b) of the Act respectively.
At the time of establishment of University in 2002, there were only two constituent colleges under the BPUT i.e. (i) College of Engineering and Technology and (ii) University College of Engineering, Burla. The University College of Engineering has been converted to a University by an Act of the State Legislature. However, with the passage of time five more colleges have been added to the list of constituent colleges of the BPUT by Notifications. Such transfers have been made under Section 37 read with Section 2(g) of the BPUT Act. In view of the aforesaid
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transfer, the management, control and ownership of such colleges vests with the BPUT.
26. Section 5(ii) of the BPUT Act gives power to the University to accord affiliation to the institutions. In exercise of power conferred under Section 31(1) of the BPUT Act the "First Statute" of the University has been framed. Chapter-6 of the First Statute of the University deals with grant of affiliation to colleges/institutions other than constituent colleges of the University. Statute 43(1) recognises the classification of colleges into two broad categories. Statute 43(5) deals with Government Colleges. Statute 44 of the First Statute of the University lays down the essential conditions for grant of affiliation by the University. Some of the essential pre-conditions for grant of affiliation is that the college/institution seeking affiliation must have (i) AICTE approval and (ii) NOC from the State Government.
27. In view of the aforementioned provisions contained in Section 10(1)(k) of the AICTE Act, 1987 for grant of approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned, the question to be now considered is whether the constituent and affiliated colleges of BPUT require prior approval of AICTE.
28. The regulation which has been framed in exercise of power under Sub-Section (1) of Section 23 read with Section 10 of the AICTE Act, 1987, in so far it compels the University to seek approval
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and obtain prior approval and not to start any new department or course or programme in Technical Education (Regulation 4) and empowers itself to withdraw such approval, in a given case of contravention the Regulations (Regulation 12) are directly opposed to and inconsistent with the provisions of section 10(1)(k) of the Act. The aforementioned question has been considered and dealt with by the apex Court in Bharathidasan University (supra) in details. For better appreciation paragraphs-3, 8, 9, 10, 13, 14, 15 and 16 are quoted below:
"3. When the appellant-University commenced courses in technology such as Information Technology & Management, Bio- Engineering & Technology, Petrochemical Engineering & Technology, Pharmaceutical Engineering and Technology, etc., the AICTE filed a Writ Petition No.14558 of 1998 before the Madras High Court seeking for a writ of mandamus to forebear the University authorities from running/conducting any courses and programmes in those technical courses. The sum and substance of the grievance as well as the objection put forward was that the University did not apply for and secure the prior approval for those courses before their commencement by the University as envisaged under the All India Council for Technical Education Act, 1987 [hereinafter referred to as the AICTE Act] and the statutory regulations made thereunder by the AICTE, particularly Regulation No.4, which obligated even an University to obtain such prior approval. The stand of the appellant- University was, as it is now before us, that the appellant-University will not fall under the definition of Technical Institution as defined under Section 2(h) of the AICTE Act and consequently, the regulations made for seeking prior approval of the AICTE even by the Universities to commence a course or programme in technical education or a new department for the purpose, were in excess of the regulation-making powers of the AICTE and consequently, are null and void and cannot be enforced against the appellant-University to the extent it obligates even Universities to seek and secure such prior approval from the AICTE.
xxx xxx xxx xxx xxx "8. We have bestowed our thoughtful consideration to the submissions made on either side. When the legislative intent is found specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act, particularly when the AICTE Act does not contain any evidence of an intention to belittle and destroy the authority or autonomy of other statutory bodies, having their own
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assigned roles to perform. Merely activated by some assumed objects or desirabilities, the Courts cannot adorn the mantle of legislature. It is hard to ignore the legislative intent to give definite meaning to words employed in the Act and adopt an interpretation which would tend to do violence to the express language as well as the plain meaning and patent aim and object underlying the various other provisions of the Act. Even in endeavouring to maintain the object and spirit of the law to achieve the goal fixed by the legislature, the Courts must go by the guidance of the words used and not on certain pre-conceived notions of ideological structure and scheme underlying the law. In the statement of objects and reasons for the AICTE Act, it is specifically stated that the AICTE, was originally set up by a Government resolution as a National Expert Body to advice the Central and State Governments for ensuring the coordinated development of technical education in accordance with approved standards was playing an effective role, but, However, in recent years, a large number of private engineering colleges and polytechnics have come up in complete disregard of the guidelines, laid down by the AICTE and taking into account the serious deficiencies of even rudimentary infrastructure necessary for imparting proper education and training and the need to maintain educational standards and curtail the growing erosion of standards statutory authority was meant to be conferred upon AICTE to play its role more effectively by enacting the AICTE Act.
9. Section 2(h) defines `technical institution for the purposes of the Act, as follows:-
"2, (h) technical institution means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions."
10. Since it is intended to be other than a University, the Act defines in Section 2(i) `University to mean a University defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 and also to be inclusive of an institution deemed to be a University underSection 3 of the said Act. Section 10 of the Act enumerates the various powers and functions of the AICTE as also its duties and obligations to take steps towards fulfillment of the same. One such as envisaged in Section 10(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. Section 23, 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 is also to be supervised or regulated and guided by the AICTE, specific mention has been made of the University alongside 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 Sections 10, 11 and 22(2)(b). It is necessary and would be useful to advert to Section 10(1)(c),(g),(o) which would go to show that Universities are
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mentioned alongside 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 Section 10 without 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 Section 11 of the Act. Clause (t) of sub-section (1) of Section 10 envisages 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-à-vis the Universities is only advisory, recommendatory and a guiding factor and thereby sub- serve 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-à-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 Raos case (supra) 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 non-entities 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.
xxx xxx xxx xxx xxx
13. The AICTE cannot, in our view, make any regulation in exercise of its powers under Section 23 of the Act, notwithstanding
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sub-section (1), which though no doubt enables such regulations being made generally to carry out the purposes of the Act, when such power is circumscribed by the specific limitation engrafted therein to ensure them to be not inconsistent with the provisions of the Act and the rules. So far as the question of granting approval, leave alone prior or post, Section 10(1)(k) specifically confines the limits of such power of AICTE only to be exercised vis-à-vis technical institutions, as defined in the Act and not generally. When the language is specific, unambiguous and positive, the same cannot be over-looked to give an expansive meaning under the pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to the Statement of Objects and Reasons for the AICTE Act, are not warranted or justified. Therefore, the regulation insofar as it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw such approval, in a given case of contravention of the regulations (Regulation 12) are directly opposed to and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable.
14. The fact that the regulations may have the force of law or when made have to be laid down before the legislature concerned do not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations are confined to certain limits and made to flow in a well defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arise and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that regulations made under Section 23 of the Act have Constitutional and legal status, even unmindful of the fact that anyone or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the regulations in question, which the AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind an University in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions.
15. To put it in a nutshell, a reading of Section 10 of AICTE Act will make it clear that whenever the Act omits to cover a `University, the same has been specifically provided in the provisions of the Act. For example, while under clause (k) of Section 10 only `technical institutions are referred to, clause (o) of Section 10 provides for the guidelines for admission of students to `technical institutions and `Universities imparting technical education. If we look at the definition of a `technical institution under Section 2(h) of the Act, it is clear that a `technical institution cannot include a `University. The clear intention of the Legislature is not that all institutions whether University or otherwise ought to be treated as `technical institutions covered by the Act. If that was the intention, there was no difficulty for the Legislature to have merely provided a definition of `technical
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institution by not excluding `University from the definition thereof and thereby avoided the necessity to use alongside both the words `technical institutions and University in several provisions in the Act. The definition of `technical institution excludes from its purview a `University. When by definition a `University is excluded from a `technical institution, to interpret that such a clause or such an expression wherever the expression `technical institution occurs will include a `University will be reading into the Act what is not provided therein. The power to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned is covered by Section 10(k) which would not cover a `University but only a `technical institution. If Section 10(k) does not cover a `University but only a `technical institution, a regulation cannot be framed in such a manner so as to apply the regulation framed in respect of `technical institution to apply for Universities when the Act maintains a complete dichotomy between a `University and a `technical institution. Thus, we have to focus our attention mainly to the Act in question on the language adopted in that enactment. In that view of the matter, it is, therefore, not even necessary to examine the scope of other enactments or whether the Act prevails over the University Act or effect of competing entries falling under Entries 63 to 65 of List-I vis-à-vis Entry 25 of List- III of the Seventh Schedule to the Constitution.
16. The fact that initially the syndicate of the appellant-university passed a resolution to seek for approval from AICTE and did not pursue the matter on those lines thereafter or that the other similar entities were adopting such a course of obtaining the same and that the Andhra Pradesh High Court in M. Sambasiva Raos case (supra) taken a particular view of the matter are not reasons which can be countenanced in law to non-suit the appellant. Nor such reasons could be relevant or justifying factors to draw any adverse finding against and deny relief by rejecting the claims of the appellant- university. We also place on record the statement of the learned senior counsel for the appellant, which, in our view, even otherwise is the correct position of law, that the challenge of the appellant with reference to the Regulation in question and claim of the AICTE that the appellant-university should seek and obtain prior approval of the AICTE to start a department or commence a new course or programme in technical education does not mean that they have no obligation or duty to conform to the standards and norms laid down by the AICTE for the purpose of ensuring co-ordinated and integrated development of technical education and maintenance of standards."
29. Elaborate discussion has been made by the apex Court so far as applicability of the AICTE Act and Regulation framed therein vis-à-vis UGC Act, Rules framed thereunder; and applicability of Technical Education of the institutions vis-à-vis the University. As such, on the basis of the analysis and declaration of law made by the apex Court in the aforementioned judgment, the University and its
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constituent colleges are not to seek approval either in the setting up of new technical institutions or increasing intake capacity. This question has reached its finality and does not require any further adjudication at this point of time by this Court, as the said judgment rendered by the apex Court is binding on this Court and also other sub-ordinate courts.
30. Section 10(1)(u) of the AICTE Act deals with NBA accreditation which permits the AICTE to set up a NBA to periodically evaluate the "Technical Institutions". "Technical Institution" has been defined under section 2(h) of the AICTE Act. On perusal of the same, it is clear that Section 2(h) excludes the Universities from its purview. In that view of the matter, Section 10(1)(u) read with Section 2(h) makes it clear that neither the University nor its constituent colleges are required to obtain NBA accreditation. The same has also been duly answered in paragraph-10 of the judgment in Bharathidasan University (supra). From the language applied in the provisions contained in Section 10(1)(u) of the AICTE Act, it can be deduced that NBA has to evaluate and make recommendations to the UGC regarding recognition or derecognition. But neither the AICTE nor the NBA can itself take any coercive action for non-compliance of the provisions of the Act.
31. From the materials available on record, it appears that BPUT has never applied for approval of any of its constituent colleges from the AICTE. In Bharathidasan University (supra), the apex Court
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made it clear that such approval is not necessary. In paragraph-16, the apex Court has dealt with the matter in great detail. The law laid down by the apex Court in Bharathidasan University (supra) still holds good in the field. Any wrong conduct/action (under a wrong impression) on the part of the constituent colleges would not change the position of law and as such it would not operate as an estoppel against such colleges. The law is well settled that there is no estoppel against the law.
32. The apex Court in Jayswal Neco Ltd. v.
Commissioner of Central Excise, Raipur (2015) 10 SCC 651 also held that there is no estoppel against the law.
33. Section 5 of the BPUT Act, 2002 defines power and function of the University. On perusal of the aforesaid provisions, it is clear that Section 5 starts with 'subject to' such orders, rules, regulations, guidelines and directions, as may be issued from time to time, by the Central Government or the Council under the provisions of the All India Council for Technical Education Act, 1987. This provision start with words 'subject to' which is an expression whereby limitation is expressed.
34. In Ashok Leyland Ltd. v. State of Tamil Nadu, (2004) 3 SCC 1, the apex Court held that 'subject to' is an expression whereby limitation is expressed. In Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311, the use of expression 'subject to'
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in Section 30 of the Act would include Section 34 of the Act. In S.P. Industries Co. Ltd. v. Electricity Inspector and E.T.I.O., AIR 2007 SC 1984, the expression 'subject to' conveys the idea of a provision yielding place to another provision or other provisions subject to which it is made. Therefore, Section 5 of the BPUT Act, 2002 in addition to the provisions contained in AICTE Act, 1987, the University has got power and function mentioned therein.
35. There are 150 private, professional and technical colleges under the BPUT which are bound by AICTE Act and regulations for proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. So far as constituent colleges are concerned, the AICTE Act and the regulations do not apply to those institutions. Therefore, had such a provision not been there in the Statute, the BPUT under the BPUT Act, 2002 (made under entry-25 List-III) would have been bound to follow the AICTE Regulations in respect of affiliated colleges. Entry-25 of List-III of the Seventh Schedule of the Constitution which was amended by 42nd Constitution Amendment in the year 1976 reads as follows:
"Entry-25- Education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List-I; vocational and technical training of labour".
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36. In view of the aforesaid constitutional provision, the BPUT Act made under entry-25 of List-III is subject to the Central Legislations made under entry-63 to 66 of the List-I of the Constitution. However, when two competing legislations are existing under the self same entry, the BPUT Act will only be subject to the provisions of such Act which will have application in respect of a particular issue. The UGC Act being Central Legislation, directly applicable to the Universities, thereby the AICTE Act which is another Central Legislation, has no application to the Universities. As it appears both the UGC Act and AICTE Act are operating in different fields as per the Preamble of the said Acts. Therefore, there is no question of overlapping of the provisions of the aforementioned Acts to each other. They are operating in their respective field, for which such enactment has been made by the Parliament.
37. Much reliance has been placed on the letter of the Additional Secretary to Government dated 05.07.2016 which clearly reveals that the aforesaid letter has been written in the context of the Government Engineering Colleges, the letter does not speak about the constituent colleges under BPUT. Further the Secretary has filed an affidavit in the present case and explained his intentions that the letter was written in the context of maintaining AICTE norms and standards.
As such neither the State Government nor the Secretary has any administrative control over the University and its constituent colleges.
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The BPUT is a creature of the Statute and as such is an autonomous body. The Board of Management of the University is the Chief Executive body of the University. Section 17(1) of the BPUT Act states as follows:
17. BOARD : (1) The Board shall be the chief executive body of the University and consist of the following members, namely:-
Ex-officio members:-
(i) the Vie-Chancellor;
(ii) the Secretary to Government, Industries Department;
(iii) the Secretary to Government, Finance Department;
(iv) the Secretary to Government, Higher Education Department;
(v) the Secretary to Government, Science and Technology Department;
(vi) the Director of Technical Education and Training. Other members-
(vii) one persons from among Directors/ Deans of the University, nominated by the Vice-Chancellor;
(viii) one Principal of any of the affiliated or constituent Colleges of the University, nominated by the Vice-Chancellor ;
(ix) two members of the Academic Council, elected by the members thereof ;
(x) two members of the Orissa Legislative Assembly, elected by the members thereof ;
(xi) two persons representing industries, both Private and Public Sectors, nominated by the Chancellor ;
(xii) one Professor or Director of a premier technical education institution like IIT or IIM nominated by the Chancellor ;
(xiii) one official representative of the Council nominated by it ; and
(xiv) one member from amongst the members of Governing Bodies of affiliated institutions, nominated by the Vice-Chancellor. (2) The term of office of the members of the Board, other than the exofficio members, shall be three years from the date of their nomination or election, as Board. the case may be, and they shall not be eligible for re nomination re-election for the next consecutive term.
(3) The Secretary to a Government Department may nominated any officer not below the rank of a Joint Secretary to attend any or all the meeting of the Board and the officer so nominated shall have all the powers and privileges of the members of the Board."
In view of the aforesaid provision, the letter addressed by the Secretary dated 05.07.2016 is not binding on the University.
38. Reliance has been placed on some documents which are prepared by Ministerial staffs but that ipso facto cannot have any bearing in the present context. In letter dated 14.07.2016 written by
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the Vice-Chancellor of the BPUT it has been specifically clarified that no approval from AICTE for constituent colleges of University is necessary in view of the law laid down in Bharathidasan University (supra). However, the said letter further indicates about the fulfilment of norms and standards of the AICTE and steps to be taken by the University and budgetary allocation to be made by the State Government in this regard. The BPUT Act was enacted with the purpose to have a technological University in the State which will have independent Colleges/Institutions. Therefore, any steps contrary to the provisions contained in the Act itself cannot sustain in the eye of law.
39. In view of the aforesaid analysis, there is no doubt that no prior approval from the AICTE is required as far as where the constituent colleges of the BPUT are concerned. The only question is raised on the affiliated college-opposite party no.4 herein, where the seats have been enhanced, which is purely a Government college.
Therefore, the question that arises for consideration is whether the members of the petitioner-association, who are the private affiliated colleges under the BPUT Act, can have the same benefit as that of opposite party no.4, the Government college affiliated to university, with regard to enhancement of seats or not.
40. The opposite party no.4 being a government college affiliated to BPUT stands on a different footing and would be covered by the interim orders dated 17.04.2014 and 09.05.2014 passed by the apex Court in Special Leave to Appeal (Civil) No.7277 of 2014 (Orissa
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Technical Colleges Association v. AICTE & Another). On perusal of the aforesaid interim orders it appears that it would be limited to the members of the colleges of the petitioner association and other similarly situated private unaided technical colleges, which requires affiliation of the University.
41. In the Association of Management of Private Colleges (supra) the apex Court in paragraphs 47, 53 and 55 held as follows:
47. On the basis of the factual and rival legal contentions urged on behalf of the parties the following points would arise for consideration of this Court in these civil appeals:--
1. Whether the colleges affiliated to a university comes within the purview of exclusion of the definition of "Technical Institution" as defined under Section 2(h) of the AICTE Act, 1987?
2. Whether the AICTE has got the control and supervision upon the affiliated colleges of the respective universities of the member colleges of the appellant in C.A.No.1145/2004 and the appellants in connected appeals?
3. Whether the MCA course be construed as technical education in terms of definition under section 2(g) of the AICTE Act?
4. Whether the Regulation 8(c) and 8(iv) by way of amendment in the year 2000 inserting the words 'MBA and MCA' before Architecture and Hotel Management courses is applicable to the concerned colleges of the appellants?
5. Whether non placement of the amended Regulations before Houses of the Parliament as required under Section 24 of the AICTE Act is vitiated in law?
6. Whether the law laid down by this Court in Bharathidasan University's case, Adhiyaman Education and Research Institute case and Jaya Gokul Educational Trust case is applicable to the fact situation of the concerned colleges of the appellants? Answer to the points framed above
53. A cumulative reading of the aforesaid paragraphs of Bharathidasan University's case which are extracted above makes it very clear that this Court has exempted universities, its colleges, constituent institutions and units from
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seeking prior approval from the AICTE. Also, from the reading of paragraphs 19 and 20 of Parashvanath Chartitable Trust case it is made clear after careful scanning of the provisions of the AICTE Act and the University Grants Commission Act, 1956 that the role of AICTE vis-à-vis universities is only advisory, recommendatory and one of providing guidance and has no authority empowering it to issue or enforce any sanctions by itself.
55 . It is also relevant to refer to the exclusion of university from the definition of 'technical institution' as defined under section 2(h) of the AICTE Act. The Institution means an institution not being university, the applicability of bringing the university as defined under clause 2 (f) of UGC Act includes the institution deemed to be a university under Section 3 of the said Act and therefore the affiliated colleges are excluded from the purview of technical institution definition of the AICTE Act. The submission made on behalf of the colleges which are affiliated to the respective universities which are being run by the appellants in the connected appeals will also come within the purview of the university referred to in the above definition of technical institution.
The above interpretation sought to be made by the learned senior counsel and another counsel is supported by the provisions of the UGC Act. Section 12A of the UGC Act clearly speaks of regulation of fees and provisions of donation in certain cases which refers to the phrase affiliation together with its grammatical variation included in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of universities. A careful reading of sub-sections (2)(c), (3), (4) and (5) of Section 12A of the UGC Act makes it abundantly clear about colleges which are required to be affiliated to run the courses for which sanction/approval will be accorded by the university or under the control and supervision of such universities.
Therefore, affiliated colleges to the university/universities are part of them and the exclusion of university in the definition of technical institution as defined in Section 2(h) of the AICTE Act must be extended to the affiliated colleges to the university also, otherwise, the object and purpose of the UGC Act enacted by the Parliament will be defeated. The enactment of UGC Act is also traceable to Entry 66 of List I. The aforesaid provisions of the UGC Act have been examined by this Court with reference to the provisions of AICTE Act in Bharathidasan University's case. Therefore, it has clearly laid down the principle that the role of the AICTE Act is only advisory in nature and is confined to submitting report or giving suggestions to the UGC for the purpose of implementing its suggestions to maintain good standards in technical education in terms of definition under Section 2(h) of the AICTE Act and to see that there shall be uniform education standard throughout the country to be maintained which is the laudable object of the AICTE Act for which it is enacted by the Parliament.
The provisions of the AICTE Act shall be implemented through the UGC as the universities and its affiliated colleges are
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all governed by the provisions of the said Act under Section 12A of the UGC Act read with Rules Regulations that will be framed by the UGC in exercise of its power under Sections 25 and 26 of the said Act. Therefore, the conclusions arrived at in Bharathidasan University case is supported by the eleven Judge Constitution Bench decision in T.M.A. Pai case (supra) wherein this Court has overruled the directions given in Unni Krishnan J.P. & Ors. v. State of Andhra Pradesh & Ors.[6] to the Central Government and others regarding the reservations and schemes.
42. The apex Court categorically held that the role of AICTE is only advisory in nature and is confined to submitting report or giving suggestion to UGC for the purpose of implementing its suggestions to maintain good standards in technical education in terms of definition under Section 2(h) of the AICTE Act and to see that there shall be uniform education standard throughout the country to be maintained, which is the laudable object of the AICTE Act for which it is enacted by Parliament. It is further held that the provisions of the AICTE Act shall be implemented through UGC, as the universities and its affiliated colleges are all governed by the provisions of the said Act under Section 12-A of the UGC Act read with the Rules and Regulations that will be framed by UGC in exercise of its power under Sections 25 and 26 of the said Act. Consequentially, the conclusion arrived at in Bharatidasan University case (supra) is supported by the 11-Judge Constitution Bench decision in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
43. In Parshvanath Charitable Trust (supra) the apex Court in paragraphs 17, 19, 20 and 21 found as follows:
17. The provisions of the All India Council for Technical Education Act, 1987 (for short 'the AICTE Act') are intended to
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improve the technical education system throughout the 14 Page 15 country. The various authorities under the AICTE Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such coordinated action in higher education with proper standard is of paramount importance to national progress.
18. The provisions of the AICTE Act, including its preamble, make it abundantly clear that the AICTE has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The AICTE is required to regulate and ensure proper maintenance of norms and standards in technical education system. The AICTE is to further evolve suitable performance appraisal system for technical institutions and universities incorporating norms and mechanisms in enforcing their accountability. It is required to provide guidelines for admission of students and has the power to withhold or discontinue grants to such technical institutions where norms and standards laid down by it and directions given by it from time to time are not followed. The duty and responsibility cast on the AICTE implies that the norms and standards to be set should be such as would prevent isolated development of education in the country.
19. Section 10 of the AICTE Act enumerates various powers and functions of AICTE as also its duties and obligations to take steps towards fulfilment of the same. One such power as envisaged in Section 10(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". It is important to see that the AICTE is empowered to inspect or cause to inspect any technical institution in clause (p) of subsection (1) of Section 10 without any reservation whatsoever. However, when it comes to the question of universities, it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. The inspection may be made or caused to be made of any department or departments only and that too, in such manner as may be prescribed, as envisaged in Section 11 of the AICTE Act.
20. All these vitally important aspects go to show that the Council (AICTE) created under the AICTE Act is not intended to be an authority either superior to or to supervise and control the universities and thereby superimpose itself upon such universities merely for the reason that they are imparting teaching in technical education or programmes in any of their departments or units. A careful scanning of the provisions of the AICTE Act and the provisions of the University Grants Commission Act, 1956 in juxtaposition, will show that the role of AICTE vis-à-vis the universities is only advisory, recommendatory and one of providing guidance, thereby subserving the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself. Reference can be made to the judgments of this Court in the case of Adarsh Shiksha Mahavidyalaya v. Subhash
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Rahangdale [(2012) 2 SCC 425], State of Tamil Nadu v. Adhiyaman Educational & Research Institute [(1995) 4 SCC 104] and Bharathidasan University v. All India Council for Technical Education.
21. From the above principles, it is clear that the AICTE has varied functions and powers under the AICTE Act. It is a specialized body constituted for the purpose of bringing uniformity in technical education all over the country and to ensure that the institutions which are recognised by the AICTE are possessed of complete infrastructure, staff and other facilities and are capable of maintaining education standards for imparting technical education.
44. In view of the aforesaid findings of the apex Court it appears that on scanning of the provisions contained in AICTE Act and the provisions of the University Grants Commission Act, 1956 in juxtaposition, will show that the role of AICTE vis-a-vis the universities is only advisory, recommendatory and one of providing guidance, thereby subserving the cause of maintaining appropriate standards and qualitative norms, and not as an authority empowered to issue and enforce any sanctions by itself.
45. The ratio decided by the apex Court in Bharatidasan University (supra) neither has been distinguished nor discussed in detail in the aforementioned judgment. As such, the said judgment holds the field, which has also been made confirmed in Association of Management of Private Colleges (supra).
46. The locus standi of the petitioner has been raised, stating inter alia that there is no pleading available on the record with regard to any legal injury caused to such association or its members, and more so it has also not been pleaded as to what prejudice has been
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caused to the Association. Above all, it is not the case of the petitioner that they are aggrieved by any order or orders of the authority. The petitioner has also not approached this Court by invoking the constitutional remedy under Article 226 of the Constitution to enforce any of its personal or individual rights. In Motibhai Desasi v. Roshan Kumar, AIR 1976 SC 578 locus of the party has been discussed in detail.
47. Mr. S.K. Padhi, learned Senior Counsel for the petitioner strenuously urged that even though the petitioner has not pleaded the facts with regard to injury caused to the Association and any violation of any order, but contended that when the fact is brought to the notice of the Court, the same has to be considered even though the petitioner may have no locus in the matter. It is further urged that those students who have been admitted to the constituent and affiliated colleges of the University till 2015-16, no action should be taken against them, because the petitioner does not want to affect the career of those innocent students who have taken admission in the enhanced seats. Even though the interim orders have been passed by this Court that their admission is subject to result of this case, but with all fairness, Mr. S.K.Padhi, learned Senior Counsel stated that the petitioner does not want to affect the career of the students, but he states that in future, if any enhancement is made to the affiliated government institutions, the minimum requirement of AICTE Act has
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to be followed for seeking enhancement of the seats by getting prior approval.
In view of such position, this Court made it clear that those students who have already been admitted in the enhanced seats of the affiliated Government colleges against enhanced seats, their admission will not be affected in any manner whatsoever and they will be allowed to prosecute their studies at par with their counterparts of the sanctioned seats. So far as future compliance of the provisions of the AICTE Act in respect of affiliated government college is concerned, the same is subject matter of dispute pending before the apex Court in Special Leave to Appeal (Civil) No.7277 of 2014 (Orissa Technical Colleges Association v. AICTE & Another) for adjudication. Thereby, this Court is refraining from making any observation to that extent, when the matter is subjudice before the apex Court for final decision.
48. In view of the aforesaid facts and circumstances, this Court is of the considered opinion that the writ application merits no consideration and, accordingly, the same is hereby dismissed. No order as to cost.
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VINEET SARAN CHIEF JUSTICE ................................
DR.B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 19th September, 2016/Anand/Alok/GDS