Jammu & Kashmir High Court
Devi Lallayogeshwari (Lal Ded) Trust vs Member Secretary Aicte And Others on 5 May, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
***
OWP no.710/2016 c/w OWP no.1363/2015 OWP no.1987/2015 OWP no.1475/2015 OWP no.1644/2015 OWP no.03/2017 OWP no.1773/2016 Date of order: 05.05.2017 Devi Lallayogeshwari (Lal Ded) Trustv.Member Secretary AICTE and others Devi Lallayogeshwari (Lal Ded) Trustv.State and others Devi Lallayogeshwari (Lal Ded) Trustv.Member Secretary AICTE and others Lakshya Dev and others v.University of Jammu and others Sahil Sharma and others v.University of Jammu and others Lakshya Dev and others v.University of Jammu and others Lakshya Dev and others v.University of Jammu and others Coram:
Hon'ble Mr Justice TashiRabstan, Judge Appearing Counsel:
For Petitioner(s): Mr K.S.Johal, SeniorAdvocate with Mr Javed Iqbal Balwan, Advocate Mr Abhinav Sharma, Advocate For Respondent(s): Mr D.S.Chauhan, Advocate Mr Ajay Abrol, Advocate Mr R.S.Kotwal, Advocate Whether to be reported in Digest/Journal? Yes
1. Devi Lallayogeshwari (Lal Ded) Trust for Educational Advancement and Cultural Resurgence,ChakBhawal, Sri Panditan Chowk, Jammu, was established in the year 2010. It set up a College of Pharmacy and to accomplish this purpose,construction process on a suitable piece of land at ChakBhalwal Tehsil and District Jammu was started. The construction was completed in the year 2010. NOC was solicited. The State Governmentissued NOC vide no.ME-Gaz-OWP no.710/2016 with connected matters Page 1 of 93
210/2010 dated 28th August 2012.Petitioner was permitted to run the College of Pharmacy under the banner of ―PrabhaHarjilal College of Pharmacy‖, Madr-e-Meharban Campus Sciences, ChakBhalwal, Seri Panditian Chowk, Jammu.For grant of provisional/temporary affiliation, petitioner submitted NOC alongwith application,to Director, College Development Council of Jammu University.
2. Provisional/Temporary affiliation to run B.Pharmacy Course for academic session 2013-14, according to petitioner, was granted by University of Jammu vide no.CDC/2013/4558-64 dated 9th September 2013, with intake capacity of sixty students only, for one session and subject to fulfilment of seven conditions and one of the conditions was to get NOC from All India Council for Technical Education (AICTE) before start of next academic sessions. Meanwhile, it is averred, as new sessions had to start, provisional affiliation was sought to be extended. Before the University could extend provisional affiliation for the session 2014-15, it was satisfied that there was no need for NOC from AICTE. This was because of OWP no.710/2016 with connected matters Page 2 of 93 judgement dated 25th April 2013 passed by the Supreme Court in Association of Management of Private College v. All India Council for Technical Education and others reported in (2013) 8 SCC 271, holding therein that no approval of AICTE was necessary, once University had given its affiliation to start the course. This in turn was based on the reasoning that private colleges, affiliated to Universities, were governed under the provisions of UGC Act and AICTE Act does not override UGC Act andthat AICTE Act does not belittle and destroy authority or autonomy of other statutory bodies, like UGC, nor was AICTE treated to be superior and supervisory or controlling authority of Universities and thereby superimpose itself upon the said Universities, merely for the reason that it is laying down certain teaching standards in technical education or programmes formulated in any of the departments or units of Universities. The Universities, their constituent units and private colleges, affiliated to Universities, like petitioner, running B.Pharmacy course, approval of AICTE and compliance with AICTE guidelines for intake of students, was held not OWP no.710/2016 with connected matters Page 3 of 93 to be required by Universities or their constituent and affiliated colleges,including private aided and unaided colleges, conducting such courses. Keeping this in view, the Director, CDC, University of Jammu, vide no.CDC/2014/4598-610 dated 13th October 2014, granted temporary/provisional affiliation in favour of petitioner institute to run B. Pharmacy Course for academic session with intake of 60 students. This, however, was subject to the conditions that the Chairman of the institute shall give an undertaking on the stamp paper of proper value that he shall remove all deficiencies pointed out by the Investigation Team within a period of three months. Admission for the year 2014-15, as said by petitioner, was given to students and they are being imparted with education for B. Pharmacy course and the admitted students have to undergo the course for four years.
3. For session 2015-16, when petitioner-college asked respondent University for vouchsafing temporary/provisional affiliation to run B.Pharmacy course, the respondent University is stated to have insisted upon petitioner-college to get NOC from OWP no.710/2016 with connected matters Page 4 of 93 AICTE. Petitioner-college, therefore, approached Regional Officer, AICTE, with an application for NOC.
In response thereto,AICTE vide letter
no.NWRO/AICTE/Approval/2014-15/13 dated 6th
January 2015, has wrongly shown as 2014 because of devil's printer and asked petitioner-college to follow prescribed regulation, norms and procedure as per the Process Handbook for that particular year. Petitioner-College was asked to submit application through AICTE Web Portal/online, after public notice for the process started within prescribed time limit for that particular year. Petitioner-College asked for the User ID Web Portal. AICTE vide letter dated 8th February 2015, allotted the login User Name and Password and directed to proceed in the matter. When petitioner applied on Web Portal, given by AICTE, the online application format was designed for new institutes/colleges, created in the year 2015-16, and for existing institutes/colleges which already obtained approval for the year 2014-15. The petitioner's colleges does not have that,for, it was one of the colleges conducting the course from the year 2013-14. Petitioner-College filled the form till the OWP no.710/2016 with connected matters Page 5 of 93 stage, when petitioner college was asked, i.e. if the Institute is approved for the year 2014-15, then the Institute is allowed to create 2015-16 application. Since petitioner's Institute was not approved for the year 2014-15, petitioner-college could not proceed further in the matter. This, as asserted by petitioner, is apparent from online application form obtained by petitioner-college from image of the web portal of the AICTE for the academic year 2014-15. Petitioner- Collegeis said to have been forced to file OWP no.1363/2015, seekingquashment of Condition No.(ii) in temporary/provisional affiliation to run B. Pharmacy Course from Academic Session 2013-14, 2014-15 and 2015-16, granted to petitioner by respondents 2 to 4 therein, vide communication no.CDC/2013/4558- 64 dated 9th September 2013 read with communication no.CDC/2013/4598-610 dated 13th October 2014 as also communication no.CDC/.2015/4180-84 dated 8th September 2015, issued by respondent no.4 therein. Petitioner as well sought respondent university to grant affiliation to petitioner-college without NOC from AICTE or in alternative respondents 5 to 7 to consider application, OWP no.710/2016 with connected matters Page 6 of 93 submitted by petitioner-college on 11th December 2014for issuing NOC/extension of approval in favour of petitioner in accordance with directions,issued in a similarly situated case of Delhi Technical Campus, by the Supreme Court in SWP (Civil) 453/2014 within a period of one month, in terms of the order dated 28th May 2014 and respondent - Universityof Jammu, not to insist for NOC from AICTE till Session 2015-16. It is averred that this Court vide order dated 21st September 2015 directed respondents to consider petitioner's case for grant of NOC/Approval strictly in accordance with the rules and regulations as applicable and respondent AICTE was also directed to consider application, already filed in the shape of hard copy to respondents, within a period of two weeks and compliance was directed to be filed before the next date of hearing. According to petitioner, though the order was passed on 21st September 2015, yet nothing was done by respondents. As a consequence,respondent University did not accord affiliation for Session 2015-16,and meanwhile new notification for Session 2016-17 was issued in January 2016 and grievance of petitioner was not OWP no.710/2016 with connected matters Page 7 of 93 redressed, thus, petitioner approached this Court urging direction to respondents to permit petitioner- college to create online application for Session 2016- 17; that petitioner made a demand of justice not only on the edifice of the direction passed by this Court but also by making representations to them to create online application for getting approval for the year 2015-16. The needful, according to petitioner-college, was not done and petitioner-college left with no choice except approaching this Court with OWP no.1987/2015, imploring direction to respondents to permit petitioner Institute to create online application for obtaining NOC/approval for Session 2016-17, in accordance with the procedure prescribed for institutions that do not possess details of earlier online application as given in FAQ (Frequently Asked Questions) containing para-II of the Hand Book for the year 2016-17. This Court, vide order dated 1st January 2016, is stated to have directed respondents to accept petitioner's application, if need be through online portal, which, however, would be subject to the decision on the writ petition.
OWP no.710/2016 with connected matters Page 8 of 93
4. Further avouchment of petitioner is that in compliance to the order dated 1st January 2016, respondents came out with a view that they did not have any portal/online for institutes, which are already in existence and they, therefore, wanted petitioner to submit fresh application on the format of new institutions, so petitioner followed respondents bona fidely and keeping in view the status of institution as an existing institute they would grant petitioner approval for running institution. Petitioner, as such, subjected itself to the scrutiny of Screening Committee with all new technical institutions. Itsubmitted application alongwith all documents.On verification of documents, viz. site/building-plan and all other title documents, some shortcomings were pointed out by architect.Petitioner institute is said to have thereafter submitted revised plans removing deficiencies for structure already existing.The matter, thus, was put up before Re-Scrutiny Committee Meeting with the revised documents. This also included the site plan and building plans and on this respondent Scrutiny Committee,vide communication dated 12thMarch 2016, asked Dr R. K. Raina to OWP no.710/2016 with connected matters Page 9 of 93 remain present with all relevant documents in original to prove compliance of deficiency as pointed out in Scrutiny report. He,along with original plan, remained present at the venue fixed. In his presence all documents, produced by petitioner, were examined by Re-Scrutiny Committee. A report, thereafter, was submitted by Re-Scrutiny Committee qua petitioner Institute without considering documents placed on record, rejecting petitioner's case for approval. The reason cited was that ―site plan is not approved by competent authority‖. The plan is of Madr-e-Meharban Campus of Health Sciences and not of PrabhaHarjilal College of Pharmacy & Para-clinical Sciences, ChakBhalwal, Seri Panditan Chowk, Jammu. Petitioner, it is asserted, approached Regional Office, AICTE, and gave in writing that all deficiencies pointed by Scrutiny Committee had been removed except marginal condonable shortcomings andrequest was made that petitioner's application to proceed further and the Expert Committee visit be fixed for on spot verification by an Expert Committee. This was conveyed by petitioner to respondent vide no.PHCP/16/1579 dated 27th March 2016. Despite OWP no.710/2016 with connected matters Page 10 of 93 this, vide communication F.No.North-West/2016/1- 2837237371_LOR dated 8th April 2016, respondents came up with a letter of rejection for setting up of the new Technical Institute. In this communication the deficiencies in the documents were pointed out. The major deficiency pointed out was that the site/building plan was not approved by competent authority. Thereafter, petitioner approached Standing Appellate Committee of AICTE against order of rejection and petitioner submitted site/building plan duly approved by Secretary Panchayat, Seri PanditanBhalwal, within which the Institute of petitioner has been constructed in accordance with site/building plan approved. The document is said to have been countersigned by Block Development Officer, Bhalwal, pointing out that there isno objection to the grant of certificate of approval by the office of Halqa Panchayat Seri Panditan. Standing Approval Committee (SAC), looking to the grievance, expressed that petitioner asked Scrutiny Committee to relook into the matter and documents submitted were asked to be re- examined by Scrutiny Committee, which is apparent from recommendations of the SAC. When the matter OWP no.710/2016 with connected matters Page 11 of 93 went to respondent no.5 and they sat over the matter, petitioner submitted requisite documents with respondent no.5. The recommendation was made by SAC for reassessment of documents submitted on 12th April 2016 and the grant of approval was to be made for Session 2016-17 before 30th of April 2016 and grant of approval was to be done before 30 th April 2016. Therefore, petitioner approached SAC on 18 th April 2016 and all the time, petitioner continued waiting for favourable action on part of respondents, yet nothing was done. When petitioner approached respondents on 25th April 2016, it was confronted with the list of names of issuing/approving authority, which had to issue the certificate qua the land/ building. Apart from other States, it also indicated competent authority for issuing the site/building plan approved for the State of Jammu and Kashmir as ―Development Authority/ Revenue Authority / Municipal Authority/Zila Panchayat‖. Insofar as the State of Jammu and Kashmir is concerned, relevant authority for issuing site/building plan is stated to be Zila Panchayat. This is legally as also factually incorrect. As a matter of fact, site plan/building plan in question where the OWP no.710/2016 with connected matters Page 12 of 93 institution is run by petitioner, is located in Panchayat Seri Panditan District Jammu. The competent authority as prescribed is the authority from Panchayat only and there is no authority like Zila Panchayat in the State of Jammu and Kashmir. It is not Zila Panchayat, as swanned by petitioner-college, but Halqa Panchayat, issuing building/site-plan, proposed in Panchayat. This, however, was not accepted by respondents and petitioner approached District Panchayat Officer, Jammu, requesting that approved certificate of building/site plan to District Panchayat Officer be issued. The Block Development Officer vide communication no.BB/2016-2017 dated 3rd May 2016 conveyed to petitioner that Halqa Panchayat is competent authority to issue building NOC for petitioner institute under Panchayati Raj Act. The certificate produced by petitioner to District Panchayat Officer was also authenticated by Panchayat Officer, Jammu. Petitioner approached respondent no.4 with all those documents, but of no avail.
OWP no.710/2016 with connected matters Page 13 of 93
5. On the edifice of case set up, following relief petitioner beseeches:
i) By writ of Certiorari, the order/memo issued by respondents 1 to 4 showing name of issuing/approving authority as Zila Panchayat as competent authority for issuing the certificate with respect to the land/building plan for the institution for imparting technical education in the State of Jammu and Kashmir as indicated in the list issued by AICTE, be quashed;
Or
ii) In alternative by writ of Mandamus, the respondents be commanded to accept the certificate of competent authority under the J&K Panchayat Raj Act for the building proposed or set up within the Panchayat area issued by the Halqa Panchayat;
iii) By writ of Mandamus, commanding respondents to consider the site/building plans of petitioner institute approved by Panchayat institute approved by Panchayat for setting up/running of technical institute bearing application ID no.1.2837237371 for PrabhaHarjilal College of Pharmacy & Para Clinical Sciences Jammu & Kashmir, Seri Panditan, Jammu and given approval for the institute;
iv)By writ of Mandamus, commanding respondent no.5, Jammu University, through its Registrar to initiate process for the admission for the Session 2016-17 for the petitioner institute.
6. Respondents 1 to 4 have resisted the writ petitions. They, in their Reply, insist that writ petitionsdo not involve infringement of any legal, fundamental or statutory rights of petitioner Institute and there is deviation from general rule that only a person whose fundamental right or any other legal right are involved can alone move this Court for enforcement of those rights. According to respondent, All India Council for OWP no.710/2016 with connected matters Page 14 of 93 Technical Education (AICTE) is a body constituted under Section 3 of the All India Council for Technical Education Act, 1987. AICTE is said to have been established for proper planning and coordinated development of technical education system throughout the country, promotion of qualitative improvement of such education in relation to planned qualitative growth and regulation and proper maintenance of norms and standards in Technical Education system and for matter therewith and that one of the functions of AICTE Act is to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with agencies concerned. AICTE is empowered to inspect or cause to inspect any technical institution. To carry out function and object of the Act, according to respondents, All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2010, have been framed and notified in the Gazette of India dated 10 th December 2010 for Session 2011-2012 and AICTE Approval Hand Book was also published (2011-2012) notifying guidelines and norms to process the OWP no.710/2016 with connected matters Page 15 of 93 applications for grant of approval to set up new technical institutions in the country. AICTE, as per Regulations, is stated to have its online process to maintain transparency in the system and as per online process, the applications are to be evaluated by Scrutiny Committee and concerned Regional Officer or other Officers of the Council will only assist the Committee by providing relevant records and documents, thereafter the Scrutiny Committee will consider the application and submit its report. Based on the recommendations of Scrutiny Committee, the deficiencies, if any, shall be communicated to the applicant.
7. Respondents 1 to 4 also affirm that for carrying out functions and object of the Act, AICTE (Grant of Approval for Technical Institutions) Regulations, 2010, have been framed and notified in Gazette of India dated 10th December 2010 for Session 2011-2012 and further AICTE Approval Handbook (2011-2012) was also published, notifying guidelines and norms to process the applications for grant of approval to setting up new technical institutions in the country. As OWP no.710/2016 with connected matters Page 16 of 93 per Regulations, AICTE has its online process to maintain transparency in the system and as per online process, applications shall be evaluated by a Scrutiny Committee and the concerned Regional Officer or other Officer of the Council will only assist the Committee by providing relevant records and documents, thereafter Scrutiny Committee will consider the application and submit its report. Based on recommendations of the Scrutiny Committee, the deficiencies, if any, shall be communicated to the applicant through Web portal and thereafter the same are to be considered by Regional Committee and like the Scrutiny Committee, the deficiencies, if any, were shown on the Web Portal and thereafter if the institution wishes to challenge the same, the same may be challenged by way of appeal before the Appellate Committee and the final decision will be taken by the Council. As per procedure, online application, submitted by petitioner institution, was scrutinized by Scrutiny Committee on 23rd April 2011 and it noted certain deficiencies and petitioner institution was called for Re-scrutiny Committee meeting, held on 8th May 2011, but despite notice and OWP no.710/2016 with connected matters Page 17 of 93 knowledge petitioner institution failed to attend the meeting and submit its case.Another opportunity was afforded to petitioner institution by constituting a Special Scrutiny Committee as per direction of Headquarter, AICTE, New Delhi, to consider the case in detail. The said Committee held its meeting on 12 th June 2011 and petitioner institution submitted its case before the Committee, but it found a number of deficiencies, which were noted as per Computer Generated Deficiencies Report and observations of the Special Scrutiny Committee in the said Report clearly established that petitioner institution was found not eligible for grant of approval. However, deficiencies noted down are:
(A) Syllabus copy of affiliating University/Board related to the Courses applied for, was not presented before the Committee.
(B) Video showing infrastructural and other facilities was not presented before the Committee (C) Proof of working capital (funds) was not accepted as Saving Account as recent statement was not presented before the Committee.OWP no.710/2016 with connected matters Page 18 of 93
(D) Audited statement of accounts was not presented before the Committee (E) Certificate issued by the Bank Manager regarding the Financial Status of the applicant was not presented before the Committee.
(F) Stamped Receipt from an authorized signatory of the State Government as proof of submission of these documents was not presented before the Committee.
(G) Detailed Project Report was not presented before the Committee (H) Registration Documents of the Society/Trust/Company established under Section 125 of the Companies Act, 1956/PPP/BOT indicating its members, objectives and memorandum of association and Rules duly attested/ certified by the concerned authority was not accepted as the memorandum of association was not presented before the committee.
(I) FSI/FAR Certificate obtained from competent authority as designated by concerned Municipal Corporation or the Local Authority that approves Building Plans, or the State Government was not presented before the Committee.
OWP no.710/2016 with connected matters Page 19 of 93 (J) Site plan, Building of Proposed Technical Campus prepared by the Architect registered with Council for Architecture (COA) and duly approved by competent Plan Sanctioning Authority of the concerned State was not presented before the Committee.
(K) Floor Plan, Sections and Elevations of all proposed/ existing buildings exclusively intended for use of proposed campus at the site with a table clearly mentioning all rooms, with carpet area of each in sq.m. as specified Instructions Administrative and Amenities requirements certified by the Architecture registered with the Council of Architecture, Safety and Hygiene precautions ensure during partial occupation, if any certified by Architect registered with the council of Architect was not presented before the Committee.
(L) Certified Phase-Wise Plan of Construction to achieve total carpet and built up area required for conduct of all applied/existing Courses from the first Final Year by Certified Architect registered with the Council of Architecture was not presented before the Committee.
OWP no.710/2016 with connected matters Page 20 of 93 (M) Certificate issued by an Architect regarding approved Building Plan was not presented before the Committee.
8. According to respondents, petitioner institute was informed that its proposal of establishment of PrabhaHarjilal College of Pharmacy, Jammu, for academic year 2011-2012, was not found to be in order in all respects and its application for establishment of new technical institution was rejected. Petitioner institute is said to have taken resort to writ petition (OWP no.1240/2011) titled Devi Lalayogeshwari (Lal Ded) Trust for Educational Advancement and Cultural Resurgence v. All India Council for Technical Education and others, claiming therein quashment of Special Re-Scrutiny Committee Evaluation Recommendation dated 12th June 2011 and presuming that petitioner-college has qualified the Scrutiny Committee Evaluation and the documents presented by petitioner-college at the Scrutiny Committee meeting on 30th April 2011, treated as compliance of deficiencies pointed out on 23rd April 2011 and that petitioner institute also prayed OWP no.710/2016 with connected matters Page 21 of 93 for quashment of letter dated 16th August 2011 and a direction to Scrutiny Committee to recommend case of petitioner college for Expert Committee visit to verify the infrastructure and also a direction to Expert Committee to visit the College premises for the said purpose, with further direction to AICTE to issue Letter of Approval (LoA) in favour of petitioner institute. In opposition to writ petition (OWP no.1240/2011), respondents aver that they filed detailed objections/reply. As contended by respondents, petitioner institution, while concealing factum of having filed writ petition (OWP no.1240/2011) and after maintaining silence for long four years and without seeking approval for subsequent years, again took resort to filing of another OWP no.1363/2015, claiming quashing of Condition no.(ii) for grant of temporary/provisional affiliation to run B. Pharmacy Course from academic Session 2013-2014; 2014-2015 and 2015-2016, granted to petitioner by respondents 2 to 4, vide communication no.CDC/2013/4558-64 dated 9th September 2013 read with communication no.CDC/2013/4598-610 dated 13th October 2014; as OWP no.710/2016 with connected matters Page 22 of 93 also quashment of communication no.CDC/2015/4180-84 dated 8th September 2015, issued by respondent no.4; with further direction to respondent university to grant affiliation to petitioner institution without NOC from AICTE; or in alternative directing respondents 5 to 7 to consider hard copy of the application submitted by petitioner on 11th December 2014 on the address of respondent no.6 for issue of NOC/Extension of Approval, in favour of petitioner-college in accordance with directions issued in similarly situated case of Delhi Technical Campus by Hon'ble Supreme Court in WP (Civil) 453/2014, within a period of one month in terms of the order dated 28th May 2014. Respondents 5 to 7 in OWP no.1363/2015 are asserted to have been directed to consider case of petitioner institution for grant of NOC/Approval strictly in accordance with rules and regulations applicable, but petitioner institution, not satisfied with ad interim direction dated 21st September 2015, again resorted to filing of writ petition (SWP no.1987/2015), in which petitioner institution seeks direction to respondents to permit petitioner institution to create online application for OWP no.710/2016 with connected matters Page 23 of 93 obtaining NOC/approval for session 2016-17 in accordance with procedure prescribed for institutions that do not possess details of earlier online applications as given in FAQ (Frequently Asked Questions) contained in para 2 of the Handbook for the Year 2015-16. Assertion of respondents is that petitioner institution was accorded temporary/provisional affiliation to run B. Pharmacy Course for Academic Year 2013-2014 by University of Jammu vide communication no.CDC/2013/4558-64 dated 9th September 2013, subject to fulfilment of conditions delineated below:
(i) That the college shall adhere to all rules, statutes and regulations in force from time to time.
(ii) That the college shall also get NOC from AICTE before the start of next session.
(iii) That the college shall generate satisfactory standard of educational efficiency for which affiliation is sought.
(iv) That the college shall adopt free structure and scales of pay as prescribed by State Government/UGC/ University from time to time.OWP no.710/2016 with connected matters Page 24 of 93
(v) That the college shall not collect any donation or capitation fee from any of the students.
(vi) That the college shall have its accounts audited at the end of each financial year by a Chartered Accountant and copy of the Audit Report along with a statement of audited accounts shall be made available to the University.
(vii) That the college shall not make admission and start classes till the rules, regulations and statutes for the course, are framed along with curriculum or course notified by appropriate authority.
9. One of the conditions, as avowed by respondents, was that petitioner-college shall get NOC from AICTE before start of next academic session. In subsequent years i.e. 2014-2015, temporary/provisional affiliation was granted by University of Jammu, vide communication no.CDC/2014/4598-610 dated 13thOctober 2014, dependent oncompliance of conditions with further stipulation that institution shall give an undertaking on the Stamp Paper of proper value that the institution shall remove all deficiencies, pointed out by Inspection Committee within a period of three months. The conditions, however, are OWP no.710/2016 with connected matters Page 25 of 93 asserted to remain unfulfilled by petitioner institution despite giving an undertaking to remove all deficiencies, pointed out by the Committee andfor academic Session 2015-16, Inspection Committee, College Development Council, University of Jammu, after inspecting college, its record etc., recommended that college be not affiliated until it produces:approval of AICTE; approval of Pharmacy Council of India; and register itself with the State Pharmacy Council and satisfies other statutory conditions like Endowment Funds, Appointment of Staff etc. as per rule position.
10. The controversy pertaining to approval from All India Council for Technical Education (AICTE) had been pending disposal before the larger Bench of Hon'ble Supreme Court of India for reconsideration of law laid down in the case Association of Management of Private Colleges case (supra), and larger Bench has still not decided the matter. According to respondents, in view of latest order passed by Hon'ble Supreme Court of India, it is mandatory for petitioner-college to seek approval from AICTE and in absence of such approval, in terms of provisions under All India OWP no.710/2016 with connected matters Page 26 of 93 Council for Technical Education (Grant of Approval for Technical Institutes) Regulations, 2012, notified by Council vide Notification no.F.No.37-Legal-2012 dated 27th September 2012 and other notifications as applicable and published from time to time, petitioner- college was under statutory and mandatory obligation to apply online on AICTE's web portal after obtaining an application ID as was done in the year 2011-2012, and undergo the entire approval process.
11. Respondents 1 to 4 admit that AICTE for Technical Education had been granting approvals to Technical Institutions and Colleges, requiring affiliation from Universities and Board of Technical Education, but in view of judgment of Hon'ble Supreme Court of India in Association of Management of Private Colleges case (supra), the AICTE was not able to initiate a step for starting Approval Process for Technical Institutions/Colleges affiliated and requiring affiliation from Universities for Academic Session 2014-2015. However, the Hon'ble Supreme Court in its order dated 17th April 2014, in SLP (Civil) no.7277/2014 titled Orissa Technical Colleges Association vs. OWP no.710/2016 with connected matters Page 27 of 93 AICTE &another, has directed that AICTE shall now proceed in accordance with Approval Process Handbook for academic year 2014-2015, insofar as members of petitioner association and all colleges and institutions, situated similarly to the members of petitioner association are concerned and necessary orders shall be issued by AICTE within ten days.
12. Subsequently, the Supreme Court on 9th May 2014 in Orissa Technical College case (supra) directed that prior approval of AICTE was compulsory and mandatory for conduct of a technical course including MBA/Management course by an existing affiliated Technical College and also new Technical college, which will require affiliation by a University for conduct of its Technical Course Programme for the academic year 2014-2015.
13. In compliance with orders dated 17th April 2014 and 9th May 2014 in Orissa Technical Colleges Association case (supra), AICTE issued a Public Notice no.Approval/05(02)/2014 for Approval Process 2014-2015, which was also published in newspapers on 10th May 2014.The Chairman, AICTE, vide OWP no.710/2016 with connected matters Page 28 of 93 communication no.F.1-29/CM/AICTE/2012 dated 12th May 2014, entered into correspondence with Vice Chancellors of all Universities, for ensuring that no Technical Institute/Technical College is considered or granted affiliation unless it has obtained proper approval of AICTE for academic session 2014-2015.
14. Respondents further aver that as per the Approval Process Handbook for Academic Session 2014-2015:
(a) Any trust, if desires to establish a Technical Institute including Management Pharmacy shall have to apply on AICTE's web portal in prescribed form by obtaining an application on payment of prescribed fee and hard copy of the same shall be submitted to Regional Officer.
(b) The application is processed at R.O. level and the documents submitted by Trust are subject to verification by Scrutiny Committee and if the application is recommended, the application is further processed for physical verification of infrastructural facilities available in the Institute by Expert Visit Committee (EVC).
(c) Based on EVC report, if no deficiencies exist, application of institution is placed for approval before OWP no.710/2016 with connected matters Page 29 of 93 Regional Sub-Committee at RO level and further considered by Executive Council of AICTE at Headquarters for approval and accordingly Letter of Approval is issued to the Institute.
(d) If the EVC reports deficiencies, application of the institution is placed before Regional Sub-Committee at RO Level and further considered by Executive Council of AICTE at Headquarters and accordingly letter of rejection is issued to the institute.
(e) Institute, against whom letter of rejection is issued, is given an opportunity of appeal for consideration before Standing Appellate Committee and recommendation/s of the Committee for approval/rejection of the application is placed before AICTE Council for final approval and/or final rejection and accordingly final letter of approval or final letter of rejection as the case may be, is issued by 30th of April of respective year as per the judgement of Hon'ble Supreme Court of India.
15. It is insisted that petitioner institution never applied online on AICTE web portal after obtaining an application ID as was done in the year 2011-2012 and never underwent entire approval process for grant of OWP no.710/2016 with connected matters Page 30 of 93 letter of approval for academic sessions 2012-2013, 2013-2014, 2014-2015 and 2015-2016. However, petitioner institute approached Regional Officer, North West Regional Office, AICTE, Chandigarh, with an application no.PHCP/14/354 dated 11th December 2014, seeking NOC in its favour. It is further insisted that petitioner institution in terms of communication no.NWRO/AICTE/Approval/2014-15/13 dated January 06, 2015 from Regional Officer, NWRO, AICTE, Chandigarh, was informed that every Institute applying for approval etc., has to follow prescribed regulation, norms and procedure as laid down in Process Handbook for particular year, through online web portal within prescribed time limit, after Notice is published by AICTE. Since petitioner institution failed to submit an online application on AICTE's web portal for establishing New Technical Institute for Sessions 2012-2013, 2013-2014, 2014-2015 and 2015-2016, prayer of petitioner institution for grant of letter of approval is not legally sustainable as on the date of consideration of applications, no application online on AICTE web portal for establishing New Technical Institution was received. Since the Hon'ble Supreme OWP no.710/2016 with connected matters Page 31 of 93 Court of India in Parshvanath Charitable Trust vs. AICTE, 2013 (3) SCC 385, has not only prescribed the time schedule for approval for establishment of new Technical Institutions on 30th April of Academic Year, but also reiterated that settled principle of law that right to establish an educational institution does not carry with it the right to recognition or right to affiliation. The law is settled that grant of recognition/approval is neither a matter of course nor is it a formality. The conditions of approval duly notified directions controlling the process for establishment of New Technical Institutions are to be construed and applied strictosensu.
16. Online application submitted by petitioner institution on AICTE's web portal for establishing New Technical Institute for Session 2016-2017 in terms of the provisions under AICTE (Grant of Approval for Technical Institutes) Regulations, 2012, notified by Council vide Notification F.No.37-3/Legal/2012 dated 27th September 2012 and other notifications, as applicable and published from time to time, was scrutinized by a Scrutiny Committee on 7th March OWP no.710/2016 with connected matters Page 32 of 93 2016 and it noted certain deficiencies and petitioner institution was called for Re-Scrutiny Committee meeting, which was held on 15th March 2016, which noted deficiencies. The Regional Committee held its meeting on 2nd April 2016 and did not recommend petitioner institution for grant of Letter of Approval for establishing New Technical Institution for Session 2016-2017, but Executive Council of AICTE at Headquarters conveyed rejection of application of petitioner institution for setting up of New Technical Institution vide letter dated 8th April 2016. Standing Appellate Committee was held on 12th April 2016 and recommended scrutiny, which was held on 18th April 2016, and Standing Committee also noted deficiencies and did not recommend petitioner institution even in its review meeting held on 25 th April 2016. Respondents while adhering to time schedule laid down by the Supreme Court in Parshvanath Charitable Trust case (supra), considered application of petitioner institution for establishment of New Technical Institution in terms of provisions of Regulations of 2012 and other notifications as applicable and published from time to time, rejected OWP no.710/2016 with connected matters Page 33 of 93 the same for detailed reasons laid down in Final Letter of Rejection No.F.No.North-Est/2016/I- 283723731-LOR dated 30th April 2016, which are:
(1) Floor plans, sections and elevations of all proposed / existing buildings exclusively intended for use as certified by Architect registered with the Council of Architecture not approved by any competent authority proposed campus at Permanent Site with a table clearly mentioning all rooms, with carpet area of each sq. m. as specified in Instructional Administrative and Amenities requirements - Not Accepted (Plan, Elevation Not There, Areas are not mentioned on drawing.
(2) Wherever applicable, FSI/FAR Certificate obtained from the Competent Authority as designated by concerned Municipal Corporation or the Local Authority that approves Building Plans or the State Government/Union Territory to be verified? Not accepted.
(3) Administrative area-central store-area required 30 sq.m., Available 28.2. sq.m. - Not available 1.8 sq.m.
17. Respondents 1 to 4 insist that since Final Letter of Rejection No.F. No. North-Est/2016/I-283723731- OWP no.710/2016 with connected matters Page 34 of 93 LOR dated 30th April 2016 has not been put to challenge, writ petition (OWP no.710/2016) has become infructuous and needs outright dismissal.
18. Respondent no.5, in its reply, states that petitioner institute established the college of Pharmacy and Para Sciences in the year 2013 and while considering the case of college for grant of temporary/provisional affiliation to run B. Pharmacy Course for Academic Session 2013-14, inspected premises and for the said academic session, granted provisional affiliation subject to fulfilment of conditions, which are:
i. That the college shall adhere to all rules, statutes and regulations in force from time to time.
ii. That the college shall also get NOC from AICTE before start of next academic session.
iii. That the college shall generate the satisfactory standard of Educational efficiency for the purpose for which the affiliation is sought.
iv. That the college shall adopt the fee structure and
scales of pay as prescribed by the State
Government / UGC/ University from time to time.
v. That the college shall not collect any donation or capitation fee from any of the students.OWP no.710/2016 with connected matters Page 35 of 93
vi. That the college shall have its accounts audited at the end of each financial year by a Chartered Accountant and copy of the Audit Report along with a statement of Audited Accounts shall be made available to the University.
vii. That the college shall not make admissions and start classes till the rules, regulations and statutes for the course are framed along with the curriculum or course notified by the appropriate authority.
19. Respondent no.5 insists that one of the conditions was that the college shall get NOC from AICTE before the start of next academic sessions and rest of the conditions were also required to be fulfilled by petitioner's college in terms of letter dated 9 th September 2013. In the subsequent years i.e. 2014- 15, provisional affiliation was granted subject to fulfilment of conditions and it was also stipulated that the institute would furnish an undertaking on Stamp Paper of proper value that the institute would remove all deficiencies pointed out by Inspection Committee within a period of three months. The conditions have not been fulfilled by petitioner-college despite asseverating an undertaking to make good all OWP no.710/2016 with connected matters Page 36 of 93 deficiencies detected by the committee. For academic Session 2015-16, Inspection Committee, after inspecting the petitioner-college, its record etc., has recommended that the college be not affiliated until it produces: (1) approval of AICTE, (2) Approval of Pharmacy Council of India, (3) Register itself with the State Pharmacy Council and satisfy other statutory conditions, like Endowment funds, appointment of staff etc., as per rule position. It is insisted that controversy pertaining to approval from AICTE had been pending disposal before the Hon'ble Supreme Court and in latest order/judgement passed by the Supreme Court, it has been provided that petitioner in that case is to seek approval as per the public notice issued by AICTE and to apply norms which are applicable to the existing institutions and not to new institutions/colleges. The concluding paragraph of judgement passed by the Supreme Court on 28 th May 2014 has been reproduced by respondent, which is:
―8...Since the public notice has been issued pursuant to the directions contained by this Court in orders dated 17.4.2014 and 9.5.2014, it would be difficult to allow the prayer quashing the said public notice.
Faced with this situation, we are of the view that the solution to the problem is by directing the OWP no.710/2016 with connected matters Page 37 of 93 petitioner to seek the approval of the AICTE as per the aforesaid public notice but at the same time directing the AICTE to apply the norms which are applicable to the existing institutions and not to new...‖
20. Further contention is that petitioner Institute was de-
affiliated for Session 2015-16 on account of deficiencies pointed out in communication dated 8th September 2015 on the report of Inspection Committee and that in the State of Jammu and Kashmir, the authority to grant permission for raising construction vests in Municipal Committee, where the area is within municipal limit and outside municipal limit the authority lies with Development Authority in terms of the Control of Building Operations Act. Block Development Officer or District Panchayat Officer, as averred by respondent, is not competent authority under the said Act to grant permission for raising construction. The building, as stated by petitioner, has been raised earlier and petitioner started the institute for running Pharmacy in the year 2013 whereas permission annexed with writ petition is of the year 2016, i.e. 4th May 2016, by District Panchayat Officer, who has granted a post facto concurrence, which is procedure unknown to law and is also contrary to the OWP no.710/2016 with connected matters Page 38 of 93 provisions of the Act governing the permission for raising construction. Respondent is otherwise well within its rights to de-affiliate an institute, which is found to be deficient in formalities. Respondent did not extend affiliation for want of NOC from AICTE, which was one of the deficiencies apart from other deficiencies that petitioner has failed to overcome as reported by Inspection Committee of University of Jammu. Provisional affiliation was granted by University for academic sessions 2013-2014 and 2014-2015 and students for these sessions have been permitted to pursue their courses and for that the University has also undertaken their examination. For subsequent Session 2015-16, University has de- affiliated the institute and petitioner institute is not affiliated with the University of Jammu and University is neither competent nor empowered to conduct admission of an institute, which is not affiliated with the University of Jammu and the University of Jammu has de-affiliated the institute of petitioner on account of shortcomings as pointed out in the communication dated 9th August 2015, which is subject matter of the OWP no.710/2016 with connected matters Page 39 of 93 earlier writ petition, pending consideration before this Court.
21. Petitioner, to controvert what respondents utter in their Reply, has filed Supplementary Affidavit.He asserts therein that respondents, to defeat petitioner's case, have taken stand that competent authority to grant permission for raising construction has been given to Jammu Municipal Corporation within the municipal limits and outside the municipal limits the competent authority is Jammu Development Authority in terms of the Control of Building Operation Act, 1988. Petitioner also asserts that petitioner institution is situated at ChakBhalwal Seri Panditan and this area does not fall in local area as defined under SRO 263 of 2004 dated 9th August 2004 and clarification vide no.CTP/JDA/358 dated 29th July 2010, in this regard, has been given by Chief Town Planner, Jammu Development Authority, in response to communication of petitioner, in which it is clearly mentioned that Chak Seri Bhalwal near IRP complex Jammu, Akhnoor defence road, falls outside the local area limits of Jammu Master Plan 2021. The area, OWP no.710/2016 with connected matters Page 40 of 93 according to petitioner, where the institution is situated, is neither within municipal limits nor within local area of Jammu Development Authority, therefore, the permission for raising the construction obtained by petitioner for the building in question is valid and could be relied upon by AICTE for grant of approval.
22. Apart from writ petitions filed by petitioner Institute, a bunch of writ petitions has also been filed by students, who are pursuing their four years' graduation course in the discipline of Pharmacy through petitioner institute. Their case is that they responded to advertisement notice(s) issued for undergoing four years' graduation course and on the basis of selection, they were admitted to the said course. They also aver that as per requirement of Jammu University Statutes, their registration-return forms were required to be submitted by the Institute to Jammu University within forty days from the date of commencement of classes and it appears that the Institute submitted their R.R.Forms within period of 40 days from the date of commencement of classes and OWP no.710/2016 with connected matters Page 41 of 93 R.R. forms of petitioners-students, submitted by the Institute to Jammu University, were not accepted on the ground that vide communication dated 8 th September 2015, temporary affiliation to run B. Pharmacy course for Session 2015-16 was refused on the ground that the Institute had not obtained approval from AICTE, approval from Pharmacy Council of India and registration with State Pharmacy Council. Petitioners-students assert that when they approached the Institute to enquire as to why their R.R.forms were not accepted, the Institute conveyed that all the reasons assigned in the communication dated 8th September 2015 were not valid, for, the Institute namely PrabhaHarji Lal College of Pharmacy & Para Clinical Sciences was affiliated by Jammu University for the Session 2013-14, pursuant to NOC granted by the State Government and thereafter for 2014-15, affiliation was further granted by Jammu University without specifying condition for seeking approval from AICTE and the Pharmacy Act, 1948, was not applicable to the State of J&K and that Institute had obtained approval from the State Pharmacy Council and stood registered with the State OWP no.710/2016 with connected matters Page 42 of 93 Pharmacy Council. Their submission is also that it appears that NOC/approval was not granted to the Institute for Session 2015-16 for the simple reason that the Supreme Court of India in Association of Management of Private Colleges case (supra) has held that no approval from AICTE is required by any college and that is why while granting provisional affiliation for Session 2013-14, by Jammu University, no condition of craving approval from AICTE was incorporated and similarly while granting affiliation for Session 2014-15, again no such condition was incorporated and that petitioners-students were sure that the Institute might have not followed required procedure before granting admission to petitioners- students. Law laid down in Association of Management of Private Colleges case (supra), according to petitioners-students, was reconsidered by the Hon'ble Supreme Court in Orissa Technical Colleges Association case (supra) and was referred to larger Bench for reconsideration, therefore, in subsequently writ petition bearing Writ Petition (Civil) no.453/2014, vide order dated 28th May 2014, the Supreme Court directed that the institute, which OWP no.710/2016 with connected matters Page 43 of 93 commenced imparting education from academic year 2013-14 and are affiliated to respective universities, may apply as existing institute to the AICTE for extension of approval for academic year 2014-15. Petitioners-students state that it appears that the Institute had applied for approval to AICTE for Session 2015-16, but same was denied on the ground that the Institute failed to provide particulars and numbers by virtue of which AICTE had granted approval to the Institute for Session 2013-14 and 2014-15, least considering that respondent no.4 stood affiliated with Jammu University, when no approval was required for both Sessions 2013-14 and 2014-15, therefore, the Institute was unable to provide those particulars. Petitioners-students cannot be made sufferers as the Supreme Court in Parshvanath Charitable Trust &ors, decided on 13th December 2012, has laid down admission schedule for universities and technical colleges and since Jammu University failed to adhere to the schedule given by the Supreme Court, by not informing the Institute by or before 15th May 2015, not to admit petitioners- students for Session 2015-16, which was informed by OWP no.710/2016 with connected matters Page 44 of 93 Jammu University only on 8th September 2015, petitioners-students cannot be made to suffer.This, according to petitioners, forced them to knock at portals of this Court with writ petitions, which were considered by this Court, by directing respondents to accept R. R. Forms of petitioners-students for undergoing B. Pharmacy Graduation Course. Letters Patent Appeal, bearing LPA no.50/2015, was directed against order dated 12th October 2015. However, the learned Division Bench did not interfere with the interim order. As a consequence, R.R. Forms of petitioners-students were accepted by Jammu University and petitioners-students, who took admission for four years B.Pharmacy Graduation Courses, were permitted to take examination and result is yet to be declared. Petitioners-students maintain that under the University Statutes, candidates, who appear in first and second semesters, can be admitted to 3rd Semester without declaration of result of 1st and 2nd semester, therefore, petitioners were admitted/promoted to second year of B. Pharmacy Course by the Institute and petitioners have completed the course of 2nd/3rd Semester, as OWP no.710/2016 with connected matters Page 45 of 93 such, are entitled to appear in 3rd/4th Semester examination. On the edifice of case set up, petitioners-students seek a direction in the name of respondents to accept registration return forms of petitioners-students; to conduct examination of petitioners of 3rd Semester of four years B. Pharmacy Courses undertaken by petitioners in the Institute; and to declare the result of petitioners of B. Pharmacy 1stSemester examination conducted in the month January 2016 and also of B. Pharmacy 2 nd Semester examination conducted in the month of June, 2016.
23. The controversy involved in all these writ petitions is akin in nature, as such,writ petitions had been clubbed. On 22nd March 2017, three writ petitions, filed by petitioner Institute,had been reserved for judgement.Rest of three writ petitions, filed by students, had been heard on 24th March 2017 and reserved for pronouncement of judgement by common judgment.
24. I have heard learned counsel for parties prolixly and considered the matter.
OWP no.710/2016 with connected matters Page 46 of 93
25. Learned senior counsel for petitioner Institute argues that University of Jammu granted Provisional / Temporary affiliation to run B. Pharmacy Course for academic Session 2013-14 with intake capacity of 60 students only for one session and subject to fulfilment of conditions and one of the conditions was to get NOC from All India Council for Technical Education (AICTE) before start of next academic sessions. He also states that there was no need for petitioner institute to urge for NOC from AICTE in view of judgement in Association of Management of Private College case (supra), wherein the Supreme Court has held that no approval of AICTE was necessary, once University had given its affiliation to start the course and the Universities, their constituent units and private colleges, affiliated to Universities, like petitioner, running B. Pharmacy course, approval of AICTE and compliance with AICTE guidelines for intake of students, was held not to be required by Universities or their constituent and affiliated colleges, including private aided and unaided colleges, conducting such courses. In view of the said judgement, Director, CDC, University of Kashmir, vide OWP no.710/2016 with connected matters Page 47 of 93 no.CDC/2014/4598-610 dated 13th October 2014, granted temporary/provisional affiliation in favour of petitioner institute to run B. Pharmacy Course for academic session with intake of 60 students. Learned counsel states that admission for the year 2014-15, was given to students and admitted students have to undergo the course for four years. He also argues that for session 2015-16, when petitioner-college asked respondent-University for grant of temporary/provisional affiliation to run B. Pharmacy course, the respondent-University insisted upon petitioner-college to get NOC from AICTE. Petitioner- college, therefore, approached Regional Officer, AICTE, with an application for NOC and in response thereto, AICTE wrongly showed as 2014 and asked petitioner to follow prescribed regulation, norms and procedure as per the Process Handbook for that particular year. Petitioner was asked to submit this application through AICTE Web Portal/online, after public notice for the process started within prescribed time limit for that particular year. Petitioner, therefore, asked for the User ID Web Portal. The AICTE vide letter dated 8th February 2015, allotted the login User OWP no.710/2016 with connected matters Page 48 of 93 Name and Password and further directed to proceed in the matter. When petitioner applied on Web Portal given by AICTE, the online application format was designed for the new institutes, created in the year 2015-16, and for existing institutes which already obtained approval for the year 2014-15. The petitioner-college does not have that,for, it was one of the colleges conducting the course from the year 2013-14. The petitioner filled the form till the stage when petitioner-college was asked, i.e. if the Institute is approved for the year 2014-15, then the Institute is allowed to create 2015-16 application. He further submits that in terms of letter F.No.North-West/2016/ 1-2837237371_LOR dated 8th April 2016, rejected the submission of petitioner-college for setting up new Technical Institute and major deficiency pointed out therein is that the site/building plan was not approved by competent authority andthereafter, petitioner- college approached Standing Appellate Committee of AICTE against order of rejection and submitted site/building plan duly approved by Secretary Panchayat, Seri PanditanBhalwal, within which area the Institute of petitioner has been constructed in OWP no.710/2016 with connected matters Page 49 of 93 accordance with site/building plan approved. The competent authority as prescribed is the authority from Panchayat only and there is no authority like Zila Panchayat in the State of Jammu and Kashmir. According to learned senior counsel for petitioner, it is not Zila Panchayat but Halqa Panchayat, which issues building/site plan proposed in Panchayat. This, however, was not accepted by respondent and petitioner approached District Panchayat Officer, Jammu, with a request that approved certificate of building/site plan to District Panchayat Officer be issued. The Block Development Officer vide communication no.BB/2016-2017 dated 3rd May 2016 conveyed to petitioner that Halqa Panchayat is competent authority to issue building NOC for petitioner institute under Panchayati Raj Act. The certificate produced by petitioner to District Panchayat Officer was also authenticated by Panchayat Officer, Jammu. Petitioner thereafter approached respondent no.4.
26. Per contralearned counsels for respondents vehemently state that petitioner institute was de- OWP no.710/2016 with connected matters Page 50 of 93 affiliated for Session 2015-16 on account of deficiencies on the report of inspection committee and that in the State of Jammu and Kashmir, the authority to grant permission for raising construction has been given to the Municipal Committee, where the area is within municipal limit and outside municipal limit the authority has been provided with Development Authority in terms of the Control of Building Operations Act. The Block Development Officer or District Panchayat Officer, according to learned counsel respondents, is not competent authority under the said Act to grant permission for raising construction and the building has been raised earlier and petitioner started the institute for running Pharmacy in the year 2013 whereas permission annexed with writ petition is of the year 2016 that too by District Panchayat Officer, who has granted a post facto concurrence, which is procedure unknown to law and is also contrary to the provisions of the Act governing the permission for raising construction.
27. Learned counselsfor respondents also state that respondents are otherwise well within their rights to OWP no.710/2016 with connected matters Page 51 of 93 de-affiliate an institute, which is found to be deficient in formalities and respondent did not extend affiliation for want of NOC from AICTE, which was one of the deficiencies apart from other deficiencies that petitioner has failed to overcome as reported by Inspection Committee of University of Jammu and that provisional affiliation was granted by University for academic sessions 2013-2014 and 2014-2015 and students for these sessions have been permitted to pursue their courses and for that the University has also undertaken their examination and for subsequent Session 2015-16, University has de-affiliated the institute and petitioner institute is not affiliated with the University of Jammu and University is neither competent nor empowered to conduct admission of an institute, which is not affiliated with the University of Jammu and the University of Jammu has de- affiliated the institute of petitioner on account of shortcomings.
28. To this learned counsel for petitioner argues that the stand taken by respondents that competent authority to grant permission for raising construction has been OWP no.710/2016 with connected matters Page 52 of 93 given to Jammu Municipal Corporation within the municipal limits and outside the municipal limits the competent authority is Jammu Development Authority in terms of the Control of Building Operation Act, 1988 is unfounded inasmuch as petitioner institution is situated at ChakBhalwal Seri Panditan and this area does not fall in local area as defined under SRO 263 of 2004 dated 9th August 2004.This fact is very much evidenced from the letter no.CTP/JDA/358 dated 29th July 2010, by which Chief Town Planner, Jammu Development Authority, has unequivocally clarified that Chak Seri Bhalwal near IRP complex Jammu, Akhnoor defence road, falls outside the local area limits of Jammu Master Plan 2021 and the area, where petitioner-college is situated, is neither within municipal limits nor within local area of Jammu Development Authority, therefore, the permission for raising the construction obtained by petitioner for the building in question is valid and could be relied upon by AICTE for grant of approval.
29. Learned senior counsel for petitioner Institute,while arguing the matter, has placed reliance on a decision OWP no.710/2016 with connected matters Page 53 of 93 rendered as regards affiliation, admission,etcetera in technical institutions by the Supreme Court in Association of Management of Private College case (supra), by which it was held that no approval of AICTE was necessary. However, to this submission of learned senior counsel for petitioners, the learned counsel for respondents have invited attention of this Court to two interim orders dated 17th April 2014 and 9th May 2014 passed by the Supreme Court in 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 whereof it is provided and envisaged that the approval of AICTE will be compulsory and mandatory for conduct of a technical course by existing affiliated colleges and also by new Technical Colleges.
30. Further submission of the learned counsel for respondents 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, OWP no.710/2016 with connected matters Page 54 of 93 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.
However, as pointed out by learned counsel for petitioners-students, and rightly so, that the Supreme Court in terms of order dated 28th May 2014 in Writ Petition (Civil) no.453/2014, has directed that the Institute, which commenced imparting education from academic year 2013-14 and affiliated to respective Universities may apply as existing Institute to AICTE for extension of approval for academic year 2014-15 in accordance with advertisement dated 13th May 2014 and that since petitioner institute stood affiliated with Jammu University for Session 2013-14 and OWP no.710/2016 with connected matters Page 55 of 93 2014-15, without approval of AICTE during the period when no approval was required and after the orders of the Supreme Court directing colleges to seek approval from AICTE, it appears that petitioner institute had applied for approval to AICTE for Session 2015-16, but same has been denied on the ground that petitioner institute failed to provide particulars and numbers, by virtue whereof AICTE had to grant approval to petitioner Institute for Session 2013-14 and 2014-15, least considering that petitioner Institute stood affiliated with Jammu University, when no approval was required from AICTE for both Sessions viz. 2013-14 and 2014-15, therefore, petitioner Institute was unable to provide those particulars. Reliance in support of submissions is placed on the decisions of the Apex Court rendered in Association of Management of Private Colleges (supra) andParshvanath Charitable Trust case (supra).
31. I feel that before embarking upon an analysis of the rival contentions, it would be apposite to note the relevant statutory provisions that furnish the scope of OWP no.710/2016 with connected matters Page 56 of 93 the regulatory power exercised by AICTE in the context of technical education in the country and for proper appreciation of this case, I am reproducing relevant provisions of UGC Act, AICTE Act and the Kashmir and Jammu Universities Act, 1969 (Act no.XXIV of 1969).Let me first reproduce relevant provisions of the UGC Act:
― (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 OWP no.710/2016 with connected matters Page 57 of 93 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 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.
The relevant provisions of AICTE Act, 1987, are:
2. Definitions.- In this Act, unless the context otherwise requires,-
(b) "Council" means the All India Council for Technical Education established under section 3;
OWP no.710/2016 with connected matters Page 58 of 93
(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-
(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;
OWP no.710/2016 with connected matters Page 59 of 93
(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 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.
OWP no.710/2016 with connected matters Page 60 of 93 (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:
(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.‖ Relevant provisions of the Kashmir and Jammu Universities Act, 1969, are extracted alow:
―1. This Act may be called the Kashmir and Jammu Universities Act, 1969.
Definitions
2. In this Act and in all Statutes made hereunder, unless there is anything repugnant in the subject or context-
(a) ―Academic Council‖ means the Academic Council of the University;
(b) ―affiliated college‖ means an institution imparting instruction upto the Bachelor's OWP no.710/2016 with connected matters Page 61 of 93 degree excluding integrated Honours, Post-graduate and professional degree courses recognised by the University concerned in accordance with the provisions of this Act and the Statutes;
(c) ―college‖ means an institution maintained or admitted to its privileges by the University' concerned and includes a constituent college;
(d) ―constituent college‖ means an institution recognised as such by the Syndicate of the University concerned in accordance with the provisions of this Act and the Statutes;
(e) ―Faculties‖, ‗Boards of Studies', ‗Board of Inspection' and ‗Boards of Research Studies' mean the ‗Faculties', ‗Boards of Studies', ‗Board of Inspection' and ‗Boards of Research Studies' of a University;
(f) ―Head of the Department‖ means the head of a University Teaching Department who has the status of a Professor or a Reader in the University and where any University has no teaching department in a subject the senior most Professor in that subject in an affiliated or a constituent college;
(g) ―Principal‖ means the head of a college;
(h) ―Statutes‖ and ―Regulations‖ mean respectively the Statutes and Regulations of a University made or continued under this Act;
(i) ―Syndicate‖ means the Syndicate of a University;
(j) ―teacher‖ means a person giving instructions on behalf of a University, in the teaching department of a University, constituent or affiliated college, and includes a Principal, Professor, Reader, Lecturer, Demonstrator, Director of Physical Education, Director of the Bureau of Educational and Vocational Guidance and a teacher of Teachers' Training College, and such member of staff of a University Library as the Syndicate of a University may declare to be a teacher;
(k) ―University‖ means the University of Kashmir or the University of Jammu, as the case may be;
(l) ―University Council‖ means the University Council of a University.
3. (1) There shall be two Universities in the State, one in the Kashmir Division and the other in the Jammu Division, each having jurisdiction extending to its respective Division of the territories of the State.
(2) The University in the Kashmir Division shall be known as the ―University of Kashmir‖ and the University in the Jammu Division shall be known as the ―University of Jammu‖
4. The University of Kashmir and the University of Jammu shall be corporate bodies known by the names of the ―University of Kashmir‖ and the ―University of Jammu‖, each having perpetual succession and a common seal with power to acquire and hold property, movable and immovable, to transfer the same, to contract and to do all other things necessary for the purpose of its constitution and may sue or be sued by its corporate name as aforesaid. POWERS AND FUNCTIONS OF A UNIVERSITY
5. A University shall have the following powers and functions, namely:-
OWP no.710/2016 with connected matters Page 62 of 93
(1) to provide for instruction in such branches of learning as the University may think fit, and to make provision for research and for the advancement and dissemination of knowledge;
(2) to hold examinations, to grant degrees to, and to confer other academic distinctions on persons who :-
a) have pursued an approved course of study in the University or in a constituent or affiliated college or in any educational institution approved for the purpose, unless exempted therefrom, as a very special case, by a decision of the University Council on the recommendation of the Academic Council under conditions laid down in the Statutes and Regulations; or
b) are teachers in educational institutions under conditions laid down in the Statutes and Regulations, and have passed the examinations of the University under like conditions; or
c) have carried on independent research under conditions laid down in the Statutes; or
d) are women who have carried on private studies under conditions laid down in the Statutes;
(3) to confer honorary degrees or other distinctions on approved persons in the manner laid down in the Statutes; (4) to grant such diplomas to, and to provide such lectures and instructions for persons not being members of the University as the University may determine; (5) to co-operate with other Universities and authorities in such a manner and for such purposes as the University may determine;
(6) to institute professorships, readerships, lecturerships and any other teaching posts required by the University; (7) to admit and maintain colleges, to recognise colleges and other institutions not maintained by the University and to withdraw such recognition;
(8)toinspect constituent and affiliated colleges and other institutions and places approved by the University for the residence of students;
(9) to demand and receive payments of such fees and other charges as may be authorised by the Statutes and Regulations;
(10) to obtain loans in furtherance of the objects of the University;
(11) to supervise and control the residence and discipline of students of the University or of colleges and other institutions admitted or affiliated to it and to make arrangements for promoting their health and general welfare; (12) to institute and award fellowships, exhibitions, prizes and medals in accordance with the Statutes and Regulations; and (13) to do such other acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a teaching, affiliating or examining body, and to cultivate and promote arts, science and other branches of learning.
RE-ORGANISATION OF EDUCATION
6. Notwithstanding anything in the foregoing section, any re- organisation or alteration in structure, pattern or medium of OWP no.710/2016 with connected matters Page 63 of 93 education at the University stage shall require the previous approval of the Government.
UNIVERSITY OPEN TO ALL CLASSES AND CREEDS
7. Each University shall be open to all persons of either sex and of whatever race, creed or class, and it shall not be lawful for a University to adopt or impose on any person any test whatsoever of religious belief or profession in order to entitle him to a certificate, diploma or degree of the University, or to serve as a teacher or to hold any office in the University, or to enjoy or exercise any privileges thereof, except where such test is specially prescribed by the Statutes, or, in respect of any particular benefaction accepted by the University, where such test is made a condition thereof by any testamentary or other instrument creating such benefaction.
AFFILIATION OF STATE EDUCATIONAL INSTITUTIONS WITH THE UNIVERSITY OF KASHMIR AND UNIVERSITY OF JAMMU
49. (1) Notwithstanding anything contained in this Act or the Statutes with regard to the conditions of the recognition and affiliation of colleges and other educational institutions, all colleges and educational institutions, affiliated to or recognized by the University of Jammu and Kashmir under the provisions of the Jammu and Kashmir University Act, 1965 shall, immediately after the commencement of this Act, become affiliated to or recognized by the University of Kashmir or the University of Jammu in the territorial jurisdiction of which such college or educational institution is situated in the same subjects, upto the same standard and on the same conditions as these were affiliated or recognised before the commencement of this Act. (2) Notwithstanding anything contained in this Act or the Statutes or Regulations, any student in a college or any other educational institution affiliated to or recognised by the University of Jammu and Kashmir, who immediately before this Act comes into force was studying or was eligible for any examination under the provisions of the Jammu and Kashmir University Act, 1965 shall be permitted to complete his course in preparation therefor in either of the two Universities and each of the University shall provide for the instruction and examination of such student in accordance with the prospectus of studies of the Jammu and Kashmir University Act, 1965 unless otherwise decided by the respective University Council.
STATUTES GOVERNING AFFILIATION AND
RECOGNITION OF COLLEGES AND OTHER
INSTITUTIONS.
1. Colleges shall be of two types namely :-
i) Constituent: and
ii) Affiliated General conditions for Affiliation and Recognition.
2. Subject to the provisions of Section 49 of the Act, a college or institution applying for admission to the privileges OWP no.710/2016 with connected matters Page 64 of 93 of the University in any Faculty shall be required to satisfy the following conditions :-
i/ that it is managed by a duly constituted and Registered Society, a Trust or Local Body:
ii/ that the institution has undisputed possession of land as per norms indicated below :-
.........
Provided that the College, intending to have enrolment higher than that mentioned above shall acquire more area of land in appropriate proportion;
iii/ that it guarantees a satisfactory standard of educational efficiency for the purpose for which recognition or affiliation is sought, and that it is established on permanent basis; iv/ that it is situated within the territorial jurisdiction of the University;
v/ that it is not imparting education for private gain or profit; vi/ that its financial resources are such as to make provision for its continued maintenance;
vii/ that it satisfies a demand for higher education in a particular locality;
viii/ that the college/institution not maintained by the Government. is prepared to adopt the scales of pay prescribed by the State Govt. from time to time; ix/ that the playground is suitable and sufficient; In case the institution finds itself deficient in this regard, it will arrange the facilities of play grounds and allied equipment from the University/public institutions on payment of such charges as may be mutually decided.
x/ that the furniture and equipment are adequate; xi/ that facilities for the residence of students are satisfactory;
xii/ that due provision is available for the health and recreation of students;
xiii/ that it is prepared to furnish such reports, returns and other information as provided by the Statutes or as the University/State Govt. may require from time to time. xiv/ that provision has been made for a suitable library; xv/ when affiliation is sought in any branch of experimental sciences, that arrangements have been made for imparting instruction in that branch of science in a properly equipped laboratory or museum;
xvi/ that the institution is in undisputed possession of a suitable building for meeting all its requirements; xvii/ that the institution is prepared to place at the disposal of the University accommodation, furniture, etc. for the conduct of various examinations and other activities free of cost; xviii/ that except for fees and other charges as may be approved by the University, the institution shall not collect any capitation fee or donation from any of its students; xix/ that the college shall have its accounts audited at the end of each financial year by a Chartered Accountant and copy of the audit report alongwith a statement of audited annual accounts shall be made available to the University; xx/ that the college/institution, not maintained by the Government, has a separate Endowment Fund, as given OWP no.710/2016 with connected matters Page 65 of 93 below, that cannot be alienated so long as the college/ institution continues to exist :-
.........
that the college/institution not maintained by the Govt. is properly managed by a Managing Committee comprising the Chairman and eight members.
A) Chairman of the Managing Committee shall be the Sole Trustee in the case of Trust/any person nominated or elected in the case of a Registered Society or a Local Body. B) of the eight members referred to above -
a) two should be prominent citizens representing different sections of society, one of whom shall have legal background, to be nominated by the Chairman;
b) one member of the Syndicate, to be nominated by the Vice-Chancellor;
c) one Teacher of the college, by rotation, to be nominated by the Chairman, on the basis of seniority;
d) one person experienced in Educational Administration, to be nominated by the Vice-Chancellor;
e) Director Colleges Development;
f) nominee of the State Education Department;
g) Principal of the College -Member-Secretary. The tenure of the members at serial (B) (a), (b), (c), (d) and
(f) shall be two years (viz. 24 months) from the date of notification of constitution of Managing Committee. However, except S.No. B(c), they shall be eligible for re-nomination upto two consecutive terms only.
Majority of the members shall form the quorum for meetings.
3. The norms prescribed from time to time by the All India Statutory Bodies responsible for coordinated and integrated development of education in their respective disciplines in the country shall be applicable to the constituent colleges offering Bachelor's Degree/Master's Degree Programme in Medical, Dental, Technical, Management, Agricultural, Nursing, Pharmacy education etc., as the case may be, in respect of the following:-
a/ Land and building b/ Laboratory equipment c/ Computing facilities d/ Furniture and fittings e/ Books and journals f/ Recurring and non-recurring expenditure g/ Staff-- Teaching, Technical, Non-technical, Library, their qualification, pay scales and service conditions, etc. h/ Work load of teachers and students, and i/ Other connected matters.
In case there is no All India Statutory Body responsible for the coordinated and integrated development of a particular discipline, the Vice-Chancellor shall appoint a Committee which amongst others shall include atleast two subject experts, to formulate the norms. The Vice-Chancellor, in consultation with the concerned Commissioner/ Secretary to Govt., shall be empowered to approve with or without modification the norms formulated by the Committee.OWP no.710/2016 with connected matters Page 66 of 93
The norms laid down in these Statutes shall be applicable to such Constituent Colleges, so far as may be consistent with those prescribed by the concerned All India Statutory Body. ..............
PROCEDURE FOR GRANT OF AFFILIATION AND RECOGNITION TO NEW COLLEGES / INSTITUTIONS.
15. (i)(a) No application for the grant of affiliation which does not have the concurrence of the State Government for opening a new College (Government or Non-
Government) shall be entertained. In the case of college introducing Bachelor's Degree/Master's Degree programme in Medical, Dental, Technical, Management, Agricultural, Nursing, Pharmacy Education, permission of All India Statutory Body responsible for the coordinated and integrated development of education in the concerned discipline and of such authority as it may prescribe, will also be necessary.
However, in case the schedule prescribed by the All India Statutory Body for processing the proposals for starting the new Institutions or new Courses / Programme in some discipline(s) is at such variance that the Application Form duly completed and accompanied by all the requisite documents (including the approval of the All India Statutory Body) cannot be submitted either within the statutory dates prescribed by the University or even thereafter by condoning the delay to a reasonable extent, the proposed institution may make an application to the Vice-Chancellor for provisional entertainment of the application Form (otherwise complete in all respects) pending approval/recognition of the proposed Institution by the All India Statutory Body. The said application shall also be accompanied by an affidavit of the Chairman of the Trust/Society/Managing Committee of the Institution to the effect that in case the request for provisional entertainment of the Application Form (otherwise complete in all respects) pending approval/recognition of the proposed institution by the All India Statutory Body is acceded to and the Application Form is processed in accordance with the Statutes, the decision of the University on the Application Form for affiliation whether favourable or unfavourable shall be binding on the Managing Committee of the institution. On consideration, the Vice-Chancellor may grant the request for provisional entertainment of the Application Form pending approval/ recognition of the proposed Institution by the All India Statutory Body provided the State Government has issued No Objection Certificate/Permission letter or has recommended to the All India Statutory Body the establishment of such Institution.
However, in case of Law College, the University may consider the case regarding grant of affiliation of a new college without permission from the Bar Council of India. The University will not allow teaching in the Law College without approval by the Bar Council of India.
(b) In case submission of application to the All India Statutory Body for seeking approval to start new institution / OWP no.710/2016 with connected matters Page 67 of 93 new course(s) or programme(s) necessitates, among others, the written consent of the affiliating University, the Vice- Chancellor may authorize issue of a certificate to the effect that the University shall have no objection in considering the request for grant of affiliation to the proposed institution subject to the fulfillment of all statutory requirements including the permission of the State Government as well as the approval of the All India Statutory Body.
(ii) Application for grant of affiliation shall be made in the case of a Government College/Institution by the concerned administrative Secretary to the Government of Jammu and Kashmir and in the case of non-Government Colleges / Institutionsby the Chairman or any other authority appointed for the purpose by the Managing Committee of the Institution.
16. Application for grant of affiliation to new college/institution shall reach the Director Colleges Development by October 1st of the year preceding the one in which it is proposed to hold admissions and start the class work.
17. The application shall be accompanied by the following:-
i) ―A statement containing full information regarding the constitution of the Managing Committee and names of its members, in the case of College / Institution not maintained by the Government.
―In case of application for LL.B. Course/Courses it must be accompanied by an answered questionnaire as prescribed by the Bar Council of India.‖
ii) A statement regarding teachers employed or proposed to be employed; their qualifications, the subject(s) proposed to be taught by each of them, their salaries, scales of pay and other conditions of service.
iii) A complete plan of the existing buildings and play grounds, and future plan of the proposed building(s) and playground(s).
iv)A statement of -
a) number of students attending the institution or proposed to be admitted to the institution;
b) arrangements already made or proposed to be made for the residence of such students, as may not reside with their parents / guardians, in the College Hostel or lodgings approved by the College and the arrangements made or proposed to be made for their supervision;
c) amenities for physical welfare of students including arrangements for games, physical training, play grounds and medical assistance;
d) facilities made available or proposed to be made available for girl students, in case the institution provides or proposes to provide co-education;
e) number and nature of books available in the Library and annual budget provision made or proposed to be made for enrichment of the library;
f) equipment available or proposed to be made available for teaching sciencesubjects in which affiliation is sought and annual budget provision made for its maintenance and new additions;
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g) financial resources of the institution, including a statement of the estimated annual income and expenditure; and
h) rates of fees, if any, proposed to be levied and the number of students exempted or proposed to be exempted wholly or in part from such fees.
18. The Application Form (including the one to be entertained provisionally) received on or before the due date shall be placed before the Syndicate and if the Application Form is found in order, the Syndicate shall refer it to the Board of Inspection. The Syndicate may also refer the Application Form provisionally entertained, pending receipt of approval of the All India Statutory Body, if otherwise found in order, to the Board of inspection. The Board of Inspection shall appoint a Committee for inspecting the institution. In case of the Application Form provisionally entertained, the inspection shall be conducted only after the All India Statutory Body has granted approval/recognition to the Institution and letter of approval/recognition has been received by the University. The report of the Committee shall be placed before the Syndicate with the recommendation of the Board of Inspection for final orders.
19. An Application Form for Affiliation or Recognition may be withdrawn at any time before Affiliation/Recognition is granted.
20. Affiliation / Recognition shall, in no case, be granted with retrospective effect.
........
22. No College or Institution shall conduct classes for any subject unless it has obtained specific recognition from the University, for such subject.
23. In case the College/Institution, to which affiliation had been granted, does not provide instruction in the course, for three consecutive academic years, the affiliation in such course(s) shall stand cancelled......‖
32. For carrying out functions and object of AICTE Act, 1987, All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2010, had been framed and notified in the Gazette of India on 10th December 2010 for Session 2011-2012 and All India Council for Technical Education Approval Hand Book (2011-2012) was also published, notifying guidelines and norms for processing the application(s) for grant of approval to set up new OWP no.710/2016 with connected matters Page 69 of 93 technical institutions. In terms of the said Regulations, AICTE has its online process, by which application are to be evaluated by a Scrutiny Committee and concerned Regional officer or other Officer(s) of the Council would only assist the Committee by providing relevant records and documents and thereafter the Scrutiny Committee considers the application and submits its report. On the basis of recommendations of Scrutiny Committee, the deficiencies, if any, are communicated to applicant through web portal and thereafter the same are to be considered by Regional Committee and like Scrutiny Committee, the deficiencies, if any, are shown on the web portal and thereafter if the institution wishes to challenge the same, the institution is to challenge the same by way of Appeal before Appellate Committee and final decision is to be taken by the Council.
33. 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 OWP no.710/2016 with connected matters Page 70 of 93 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 notification in the Official Gazette, declare as technical institution;
4. Mandatory Accreditation :
OWP no.710/2016 with connected matters Page 71 of 93
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.‖
34. As the Supreme Court has passed order(s) making approval of AICTE compulsory and mandatory, it would be apropos to extract interim orders dated 17th April 2014 and 9th May 2014, passed in Orissa Technical Colleges Association Vs. AICTE, in Special Appeal (Civil) No. 7277/2014, below:
"17th April 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 OWP no.710/2016 with connected matters Page 72 of 93 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."
"9th May 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 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."
35. University Grants Commission 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 OWP no.710/2016 with connected matters Page 73 of 93 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 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. Insofar as the Kashmir & Jammu Universities Act, 1969 is concerned, the same has received the assent of the H.E. Governor on 30th October, 1969 and published in Government Gazette on 10th November 1969. The OWP no.710/2016 with connected matters Page 74 of 93 Act is to provide for establishment of the University of Kashmir and the University of Jammu in the State.
36. On perusal of the aforementioned Acts, 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 Kashmir and Jammu Universities Act, 1969, has been enacted by the State Legislature to provide that there shall be two Universities in the State, one in the Kashmir Division and the other in the Jammu Division, each having jurisdiction extending to its respective Division of the territories of the State; the University in the Kashmir Division shall be known as the ―University of Kashmir‖ and the University in the Jammu Division shall be known as the ―University of Jammu‖; the University of Kashmir and the University of Jammu shall be corporate bodies known by the names of the ―University of Kashmir‖ and the ―University of Jammu‖, each having perpetual succession and a common seal with power to acquire and hold property, movable and immovable, to transfer the same, to contract and to do all other things necessary for the purpose of its constitution OWP no.710/2016 with connected matters Page 75 of 93 and may sue or be sued by its corporate name as aforesaid. The Act also envisions procedure for grant of affiliation and recognition to new colleges / institutions. Section 15. (i)(a) of the Act provides that no application for the grant of affiliation, which does not have concurrence of the State Government for opening a new College (Government or Non- Government) shall be entertained and in the case of college introducing Bachelor's Degree/Master's Degree programme in Medical, Dental, Technical, Management, Agricultural, Nursing, Pharmacy Education, permission of All India Statutory Body responsible for the coordinated and integrated development of education in the concerned discipline and of such authority as it may prescribe, will also be necessary.
37. The University is to provide for instruction in such branches of learning as the University may think fit, and to make provision for research and for the advancement and dissemination of knowledge; to hold examinations, to grant degrees to, and to confer other academic distinctions on persons who have pursued an approved course of study in the University OWP no.710/2016 with connected matters Page 76 of 93 or in a constituent or affiliated college or in any educational institution approved for the purpose, unless exempted therefrom, as a very special case, by a decision of the University Council on the recommendation of the Academic Council under conditions laid down in the Statutes and Regulations; or are teachers in educational institutions under conditions laid down in the Statutes and Regulations, and have passed the examinations of the University under like conditions; or have carried on independent research under conditions laid down in the Statutes; or are women who have carried on private studies under conditions laid down in the Statutes. Worth to be seen is that no application for the grant of affiliation, which does not have concurrence of the State Government for opening a new College (Government or Non-Government) shall be entertained and in the case of college introducing Bachelor's Degree/Master's Degree programme in Medical, Dental, Technical, Management, Agricultural, Nursing, Pharmacy Education, permission of All India Statutory Body responsible for the coordinated and integrated development of education in the concerned OWP no.710/2016 with connected matters Page 77 of 93 discipline and of such authority as it may prescribe, will also be necessary.
38. In view of 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 University of Jammu require prior approval of AICTE.In the Association of Management of Private Colleges (supra), as relied upon by learned senior counsel for petitioner, the Apex Court 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?
.........
........
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 OWP no.710/2016 with connected matters Page 78 of 93
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 seeking prior approval from the AICTE. Also, from the reading of paragraphs 19 and 20 of ParashvanathChartitable 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.‖
39. The above interpretation is sought to be made by the learned senior counsel for petitioner asthe Apex Court has categorically held that the role of AICTE is only advisory in nature and is confined to submitting report or giving suggestion 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 OWP no.710/2016 with connected matters Page 79 of 93 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 eleven Judge Constitution Bench decision in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481.
40. In Parshvanath Charitable Trust (supra) the Supreme 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 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 OWP no.710/2016 with connected matters Page 80 of 93 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 AdarshShikshaMahavidyalaya v. SubhashRahangdale [(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 OWP no.710/2016 with connected matters Page 81 of 93 infrastructure, staff and other facilities and are capable of maintaining education standards for imparting technical education.‖
41. 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 of 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 sub-serving the cause of maintaining appropriate standards and qualitative norms, and not as an authority empowered to issue and enforce any sanctions by itself.
42. 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, thesaid judgment holds the field, which has also been made confirmed in Association of Management of Private Collegescase (supra).
43. In the present case, respondent University is said to have granted temporary/provisional affiliation in favour of petitioner Institute in the year 2013 to run B.Pharmacy Course for academic Session 2013-14, subject to fulfilment of various conditions including OWP no.710/2016 with connected matters Page 82 of 93 that petitioner institute would adhere to all rules, statutes and regulations in force from time to time and get NOC from AICTE before the start of next academic session. In subsequent years, i.e.2014-15, provisional affiliation was granted subject to fulfilment of condition and it was also stipulated that Institute shall give an undertaking on the stamp paper of proper value that the institute would remove all deficiencies pointed out by Inspection Committee within a period of three months and that conditions have not been fulfilled by petitioner institute despite giving an undertaking to remove all deficiencies pointed out by the committee and for the academic session 2015-16, inspection committee recommended that college be not affiliated until it produces approval of AICTE, approval of Pharmacy Council of India, register itself with the State Pharmacy Council and satisfies other conditions like Endowment funds, appointment of staff etcetera as per rule position. Respondents' further stand is that Block Development Officer of District Panchayat Officer is not competent authority to grant permission for raising construction and post facto concurrence given by District OWP no.710/2016 with connected matters Page 83 of 93 Panchayat Officer is unknown procedure to law and contract to the prevalent laws and rules. Respondent University has de-affiliated the institute of petitioner on account of shortcomings as pointed out in the communication dated 9th August 2015.
44. While having glance of record, I have come across letter no.PHCP/16/644-47 dated 7th September 2016 addressed to respondent AICTE by petitioner institute. In the said letter petitioner institute, while referring to communication dated 29th August 2016 of AICTE, has pointed out that the Standing Appellate Committee at its meeting on 12th April 2016 recommended re-examination of documents designated by it at the Scrutiny Committee on 18 th April 2014 and re-examination of the documents at Scrutiny Committee on 18th April 2016, as recommended by Appellate Committee, did not find any deficiency except a condonable shortfall of 1.2 sq. meters in the stores area. It is also mentioned in the said letter that Regulations of AICTE require it to upload the Scrutiny Committee Reports on the web portal which has not been done nor has copy of LOR been received by petitioner institute andthat petitioner OWP no.710/2016 with connected matters Page 84 of 93 institute has given the response to the deficiencies, which were earlier pointed out, by making it clear that certificate from Jammu Development Authority was not to be issued because the area falls outside jurisdiction of the Authority and the deficiency of 1.8 sq.meters in the total built up area of over 2000 sq. mt. constitutes a very less deficiency, which falls within condonable limits. Thereafter another communication bearing no.PHCP/16/682-83 dated 19th November 2016 has been made by petitioner institute to respondent AICTE, in which petitioner institute states that two deficiencies have been wrongly computed and deficiency regarding space shortfall has been rectified and a request has been made by petitioner institute for further processing of the case for release of Letter of Intent. Apart from this, learned senior counsel for petitioner institute during course of argumentation, while inviting attention of this Court to averments made in Supplementary Affidavit, has strenuously stated that the competent authority viz. Jammu Development Authority, on whom respondents have banked on being the exclusive authority to grant permission for raising OWP no.710/2016 with connected matters Page 85 of 93 construction, has vide letter no.CTP/JDA/358 dated 29th July 2010 clarified that petitioner's institute does not fall in the local area as defined under SRO 263 of 2004 dated 9th August 2004 and that the authenticity and correctness of the said clarification, given by Jammu Development Authority, cannot be called in question inasmuch as it is unequivocally made clear by Jammu Development Authority that the area, in which petitioner institute is located, falls outside the local area limits of Jammu Master Plan 2021. Learned counsel, therefore, states,and rightly so, that the permission for raising construction, secured by petitioner, for the building in question, is valid and could be relied upon by AICTE for grant of approval.
45. Petitioner institute started operation of the college/institute in the year 2013. Respondent university granted affiliation in favour of petitioner institute with certain riders that includes approval of AICTE. However, approval of AICTE,at that material point of time, was not required by any Technical College/Institute in view of judgement of the Supreme Court in Association of Management of Private Colleges case (supra). Same was true about present OWP no.710/2016 with connected matters Page 86 of 93 petitioner institute. Yet,at later stage the Supreme Court by orders dated 17th April 2014 and 9th May 2014passed in SLP (Civil) no.7277/2014 titled Orissa Technical College Association v. AICTE and another, has directed obtainment of approval from AICTE as compulsory and mandatory for conducting technical courses by existing affiliated Technical Colleges and also new Technical Colleges, which require affiliation by a University for conduct of Technical Course Programme for academic session 2014-15. I may again extract pertinent portion of order dated 9 th May 2014 of the Supreme Court hereunder:
―...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 Technical College which will required affiliation by a University for conduct of its Technical Courses/Programmes for the academic year 2014-15.‖
46. From the above, what is gathered is that prior approval of AICTE is compulsory for technical course run by colleges and institutes in India. Prior approval is to be obtained by both existing affiliated Technical Colleges and new Technical Colleges, which are yet OWP no.710/2016 with connected matters Page 87 of 93 to be affiliated with the concerned Universities. Insofar as present petitioner institute is concerned, it had been affiliated with Jammu University way back in the year 2013, obviously, subject to fulfilment of certain conditions, that according to respondent University,include approval of AICTE. However, the said approval at the relevant point of time was not required by petitioner Institute given that and in compliance of the Supreme Court judgement in Association of Management of Private College case (supra). Petitioner institute at that material point of time could not have been forced to seek and secure approval from AICTE once the Supreme Court had made such approval not necessary for conducting of technical courses by technical colleges/institutes. It is only at later stage that the Supreme Court in SLP (Civil) no.7277/2014 titled Orissa Technical College Association v. AICTE and another, directed obtainment of prior approval of AICTE for conducting technical courses. The Supreme Court asked both affiliated colleges with concerned Universities and non-affiliated colleges, to seek and secure approval of AICTE. Now in the OWP no.710/2016 with connected matters Page 88 of 93 present case, petitioner institute has started running and operating petitioner institute in the year 2013 and got it affiliated with the Jammu University. Thus, petitioner institute cannot be treated or labelled as a new Institute but it can be said an affiliated Technical College/Institute with Jammu university and in such capacity i.e. an already affiliated institute, petitioner institute is to follow the parameters laid down by respondent AICTE for grant of approval. Otherwise also petitioner Institute should not shirk in removing and rectifying deficiencies because the deficiencies, pointed out by AICTE and rectification thereof is ultimately for betterment of students.
47. It may not be out of place to mention here that the University or for that matter AICTE cannot behave like an alien to the interest of the petitioners-students. Another aspect that requires to be noted is that a blame game has been going on by the educational institutions on the one hand and the AICTE and the University on the other, and on certain occasions between the AICTE and the University. All of them function in the field of education. Such kind of cavil and narrowness is likely to create a concavity in the OWP no.710/2016 with connected matters Page 89 of 93 educational culture of the State. Therefore, all concerned must remember that education charters the way where a civilized man slaughters his prejudices. Any education properly imparted is a constant allurement to learn. It is inconceivable that the authorities who are in charge of controlling the sphere of education to behave like errant knights justifying their own fanciful deeds. Law expects a rational perception, logical approach and a studied and well deliberated decision from all the authorities. It is imperative to state, a concerted effort has to be made by the AICTE and the University to avoid recurrence of this kind of piquant and agonising situations. Perceived from any perspective, it does not augur a healthy situation. Had the AICTE functioned within the frame in respect of the process the matter would not have given rise to such a situation. In a State of good governance, a problem is taken note of so that appropriate and timely steps are taken to avoid any recurrence. The authorities who are incharge of giving approval, preparing syllabus, imparting education and carrying on such other activities, are required to behave with responsibility OWP no.710/2016 with connected matters Page 90 of 93 and promptitude. Lack of concern is only indicative of the beginning of destruction. That should not be brooked to happen.
48. While having glance of All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2016, it furnishes the mode and method for both affiliated and new colleges/institutes how to apply for grant of approval of AICTE. Clause 19 of the Regulations of 2016 is one of the important clauses as it provides and envisages that AICTE shall, in exceptional cases, relax any of the provisions of the Regulations in respect of any class or category of institutions. Even Regulations of 2016 at Clause 15 provide that in case the deficiencies are complied with subsequently during the Academic Year, the approval should be granted under extraordinary circumstances for next academic year in the event LoA/EoA is not granted within fixed timeframe by the Supreme Court in Parshvanath Charitable Trust case (supra).
49. For all what has been discussed above, the instant writ petitions are disposed of with a direction to respondents that those students who have already OWP no.710/2016 with connected matters Page 91 of 93 been admitted in petitioner institute, their admission will not be affected in any manner whatsoever and they shall be allowed to pursue their studies and appear in examination(s) to be held by respondents on a par with their counterparts of other affiliated colleges/institutes.
50. Qua petitioner Institute, respondents are directed to give a fresh look to the case of petitioner Institute and consider the case of petitioner Institute for grant of approval and affiliation, taking into account removal and rectification of deficiencies so far made by petitioner Institute and having regard to Clause 15 and 19 of All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2016. Let petitioner Institute approach respondents - AICTE and Jammu University, with all documents within one week from today, showcasing thereby removal and rectification of deficiencies, pointed out by respondents, and on the basis of said demonstration, let respondents - AICTE and Jammu University, accord consideration to the case of petitioner Institute and decide the matter for issuance of approval and granting of affiliation in favour of OWP no.710/2016 with connected matters Page 92 of 93 petitioner Institute preferably within four weeks thereafter. No order as to costs. Disposed of.
( TashiRabstan ) Judge Jammu May 05th, 2017 Ajaz Ahmad OWP no.710/2016 with connected matters Page 93 of 93