Kerala High Court
Kollengode Educational & Charitable ... vs All India Council For Technical ... on 30 June, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935
WP(C).No. 29611 of 2012 (B)
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PETITIONER(S):
----------------------
KOLLENGODE EDUCATIONAL & CHARITABLE TRUST,
REP. BY ITS CHAIRMAN, O.K. SREEDHARAN,
H. NO.2/408, KOLLENGODE P.O.,
PALAKKAD, PIN - 678 506.
BY ADVS.SRI.NIRMAL. S.,
SMT.VEENA HARI.
RESPONDENT(S):
--------------------------
1. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
REP. BY MEMBER SECRETARY, 7TH FLOOR,
CHANDRALOK BUILDING, JANPATH, NEW DELHI - 110 001.
2. THE REGIONAL OFFICER,
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
SOUTH WESTERN REGIONAL OFFICE,
BANGALORE UNIVERSITY CAMPUS, P.K. BLOCK,
PALACE ROAD, BANGALORE - 560 009.
BY ADV. SRI.S.KRISHNAMURTHY,SC, AICTE.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-03-2013, THE COURT ON 05-04-2013 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 29611 of 2012 (B)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P-1 TRUE COPY OF THE RELEVANT PAGES OF THE TRUST DEED AND
STATEMENT SHOWING THE CREDENTIALS OF THESE 58 TRUSTEES.
EXT.P-2 TRUE COPY OF THE LETTER OF APPROVAL DATED 30.06.2009
ISSUED BY AICTE.
EXT.P-3 TRUE COPY OF THE ORDER DATED 23.08.2010.
EXT.P-4 TRUE COPY OF THE RELEVANT PAGES OF THE LIST TAKEN FROM
WEB PORTAL OF AICTE DATED 13.07.2011.
EXT.P-5 TRUE COPY OF THE RELEVANT PAGES OF THE WEB PORTAL.
EXT.P-6 TRUE COPY OF THE AICTE REGULATIONS 2011.
EXT.P-7 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE
COURT IN W.P.(C)NO. 19449/2011.
EXT.P-8 TRUE COPY OF THE INTERIM ORDERS DATED 22.09.2011 IN
W.A. NO. 1329/2011.
EXT.P-9 TRUE COPY OF THE JUDGEMENT IN W.A. NO. 1329/2011
DATED 23.05.2012.
EXT.P-10 TRUE COPY OF THE JUDGEMENT DATED 07.06.2012 IN
W.P.(C)NO. 19449/2011.
EXT.P-11 TRUE COPY OF THE LETTER DATED 05.07.2012.
EXT.P-12 TRUE COPY OF THE LETTER DATED 10.10.2012.
EXT.P-13 TRUE COPY OF THE RELEVANT PAGE OF THE WEB PORTAL FOR
EXTENSION OF APPROVAL FOR THE YEAR 2013-14.
EXT.P-14 TRUE COPY OF THE EXTENSION OF APPROVAL DATED 06.06.2012
BY THE AICTE FOR THE BALAJI INSTITUTE.
EXT.P-15 TRUE COPY OF THE INTERIM ORDER DATED 19.04.2012 IN
W.P.(C)NO. 1594/2012.
EXT.P-16 TRUE COPY OF THE CHAPTER RELATING TO GRANT OF
APPROVALS OF THE APPROVAL PROCESS BOOK.
EXT.P-17 TRUE COPY OF THE ORDER DATED 29/06/2012 IN
W.P.(C)NO. 5773/2012 OF THE HIGH COURT OF JUDICATURE
AT BOMBAY.
WP(C).No. 29611 of 2012 (B)
EXT.P-18 & P18A TRUE COPY OF THE PAPER REPORTS PUBLISHED IN
MATHRUBHUMI DAILY DATED 22/12/2012.
EXT.P-19 TRUE COPY OF THE AICTE REGULATION 2012.
EXT.P-20 TRUE COPY OF THE REPORT SUBMITTED BY THE INSPECTION
COMMITTEE WITH RESPECT TO THE PETITIONER'S COLLEGE.
EXT.P-21 TRUE COPY OF THE DEFICIENCY REPORT GENERATED THROUGH
THE WEB PORTAL OF AICTE FOR THE YEAR 2012-13.
EXT.P-22 TRUE COPY OF THE APPLICATION STATUS FOR EOA AND OTHER
DETAILS FOR THE YEAR 2012.
EXT.P-23 TRUE COPY OF THE LETTER CEE/B3/4234/12 (35) DATED 22/12/2012.
EXT.P-24 TRUE COPY OF THE NOTICE DATED 21/07/2011.
EXT.P-25 TRUE COPY OF THE LETTER DATED 01/08/2011 ISSUED BY THE
PETITIONER.
EXT.P-26 TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE
PETITIONER BEARING SEAL OF THE REGIONAL OFFICE OF
THE AICTE DATED 12/01/2012.
EXT.P-27 TRUE COPY OF THE G.O.(MS) NO.175/2012 DATED 07/06/2012.
EXT.P-28 TRUE COPY OF THE LETTER DATED 05/02/2013.
EXT.P-29 TRUE COPY OF THE JUDGMENT OF THE SUPREME COURT IN
PARSHAVANATH CHARITABLE TRUST Vs. AICTE (SLP 26086/2012)
DATED 13/12/2012.
EXT.P-30 TRUE COPY OF THE ORDER IN W.P.(MD) NO.6790/2012 THE
MADHURAI BENCH OF THE MADRAS HIGH COURT DATED 02/08/2012.
RESPONDENT'S EXHIBITS:-
EXT.R1A COPY OF THE LETTER DATED 10/10/2012 ISSUED BY
RESPONDENTS.
//TRUE COPY//
P.A. TO JUDGE
rs.
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.29611 of 2012
----------------------------------------
Dated this the 5th day of April 2013
J U D G M E N T
The petitioner challenges Ext.P12 dated 10/10/2012 issued by the All India Council for Technical Education (for short 'AICTE') rejecting the request of the petitioner to grant extension of approval for the year 2012-2013 for the Institute of Science and Technology, Palakkad on account of Clause 3.1(d) of the Approval Process Hand Book (for short 'APH') of the AICTE.
2. AICTE granted approval to the petitioner Trust for starting an Engineering College during the year 2009. Approval was granted for intake of students in different categories during the academic year 2010-2011. But permission was refused during the academic year 2011- 2012 on the ground of existence of a CBI case against Trust members and certain other irregularities found out during inspection. According to the petitioner the irregularities were W.P.C.No.29611 of 2012 2 rectified and there was no provision which enabled the AICTE to deny permission on account of a pending case being charge sheeted against the promoters of the institution. The petitioner filed W.P.C.No.19449 of 2011 and this court by judgment dated 7.06.2012, directed AICTE to grant permission to the respondent College during the academic year 2011-2012. AICTE did not challenge the said judgment which has become final. For the academic year 2012-2013, AICTE had published an APH by virtue of the powers vested in it under the regulations wherein clause 3.1
(d) read as under:
"3.1(d) Any Institution/ Society/ Section 25 Company or a member belonging to any of these if charge sheeted shall not be considered for extension of approval unless they are acquitted."
3. As per the aforesaid clause, the AICTE formed an opinion that since there was a case charge sheeted against the Chairman of the institution alleging that he had W.P.C.No.29611 of 2012 3 attempted to bribe the officials of AICTE for obtaining the requisite permission, the extension of approval cannot be granted. It is therefore contended that clause 3.1(d) of APH is ultra vires the AICTE Act as well as the Constitution and it is in violation of Article 14 of the Constitution of India.
4. The main contention urged by the learned counsel for the petitioner is that AICTE has no power to pass such a restriction. Clause 3.1(d) confers on AICTE power to deny extension of approval if a case is charge sheeted against one of the members of an institution either a Trust, Society or Company. Such a situation will result in serious difficulties for a running an institution as a person is treated to be guilty even before the charges are proved before a court of law. There might be instances where false charges are levelled against the office bearers of the institution. That apart, it is contended that when Rules are framed by the council, by way of subordinate legislation, there is a duty and responsibility on the Council that the norms and standards W.P.C.No.29611 of 2012 4 should not be lopsided or one sided and such standards which are fixed should be reasonable and ideal at the same time.
5. Learned counsel for the petitioner relied upon the following judgments in support of his contentions:
(i) In State of T.N. v. Adhiyaman Educational & Research Institute [(1995) 4 SCC 104] reference is made to the following portion of paragraph 22 of the said judgment which reads as under:
"22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council 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 Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal W.P.C.No.29611 of 2012 5 system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to de-recognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country are in a position to properly maintain the W.P.C.No.29611 of 2012 6 norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute.
X X X X
(ii) In Kunj Bahari Lal Butail and Others v. State of H.P and Others [(2000(3) SCC 40] reference is made to portions of paragraphs 13 and 14 of the said judgment which reads as under:
"13. It is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is W.P.C.No.29611 of 2012 7 given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act.
X X X X
14. We are also of the opinion that a delegated power to legislate by making rules "for carrying out the purposes of the Act" is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
(iii) In Bharathidasan University v. All India Council for Technical Education [(2001) 8 SCC 676] reference is made to certain portions f Paragraphs 13 and 14 which reads as under:
"13. AICTE cannot, in our view, make any regulation in exercise of its powers under Section 23 of the Act, notwithstanding sub-section (1), W.P.C.No.29611 of 2012 8 which though no doubt enables such regulations being made generally to carry out the purposes of the Act, when such power is circumscribed by the specific limitation engrafted therein to ensure them to be "not inconsistent with the provisions of this Act, and the Rules ...". So far as the question of granting approval, leave alone prior or post, Section 10(1)(k) specifically confines the limits of such power of AICTE only to be exercised vis-`-vis technical institutions, as defined in the Act and not generally. When the language is specific, unambiguous and positive, the same cannot be overlooked to give an expansive meaning under the pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to the Statement of Objects and Reasons for the AICTE Act, are not warranted or justified. Therefore, the Regulation insofar as it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw such approval, in a given case of contravention of the Regulations (Regulation 12) W.P.C.No.29611 of 2012 9 are directly opposed to and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable.
14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack.
X X X X
(iv) In State of T.N. v. P.Krishnamurthy [(2006) 4 SCC 517] the relevant portion relied upon are as under. W.P.C.No.29611 of 2012 10
X X X X X X "There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
16. The court considering the validity of a subordinate legislation, will have to consider the W.P.C.No.29611 of 2012 11 nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity."
6. Counter affidavit is filed by the respondent inter alia contending that clause 3.1(d) of the APH is framed by virtue of powers vested in the AICTE under the regulations. Ext.P19 is the regulations of 2012 and the power is vested with the Council under Clause 4.3 of the said regulations
7. This, according to the learned counsel, gives power to the Council to frame APH which shall contain the various procedure and conditions for approval of the W.P.C.No.29611 of 2012 12 applications of the institutions. When such a power is exercised, the same has statutory force and there is a reason for including such a condition. According to the respondents, there had been several allegations of corruption in the matter relating to the grant of approval and it was felt that institutions who indulges in corrupt practices should not be given approval or extension of approval as the case may be. This provision had been specifically included to avoid persons who are involved in such corrupt practices and to have a corrupt free system. It is also contended that if any person is involved in any such crime, they are put to notice that such institutions will not be given extension of approval and therefore when the matter is informed in advance in the form of APH, the petitioner cannot dispute that they were not aware of such a provision.
8. That apart, it is contended that there is no illegality or irregularity in the provisions incorporated under the APH and that it is in accordance with the provisions of W.P.C.No.29611 of 2012 13 the Act as well as the Constitution of India. It is said that as far as the institution is concerned, they were granted extension of approval during the academic year 2011-2012 as directed by the High Court and in respect of Academic year 2012-2013, though an attempt had been made by the petitioner in the earlier writ petition seeking approval, the same was not considered by the High Court and therefore the writ petition is not maintainable. That apart, it is contended that no permission was granted by AICTE approving the course from 2012-2013 and the petitioner could not have admitted any students as their application for renewal for permission was not granted at all. It is stated that the impugned order Ext.P12 is only a communication on the basis of a letter issued by the petitioner on 05/07/2012. In fact, their web portal was not opened for the academic year 2012-2013 and they had only sent a hard copy to the AICTE office, which was never processed. The fact remains that as far as academic year 2012-2013 is concerned, W.P.C.No.29611 of 2012 14 approval is not granted within the time stipulated under the AICTE regulations and as such according to the respondents, it is not open for the petitioner to seek the indulgence of this Court for getting extension of time as their case is clearly covered by clause 3.1(d) of the APH.
9. Learned counsel for the respondent also relied upon the following judgments of the Supreme Court:
(i) Maharashtra State Board of Secondary and Higher Secondary Education and Another v. Paritosh Bhupeshkumar Sheth and Others [1984(4) SCC 27].
Reliance is placed on paragraph 29 which reads as under:
"29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual W.P.C.No.29611 of 2012 15 day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.
(ii) State of Himachal Pradesh and Others v.
Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh [(2011) 6 SCC 597]. Paragraph 21 is referred which reads as under:
"21. The High Court has lost sight of the fact that education is a dynamic system and courses/ subjects have to keep changing with regard to W.P.C.No.29611 of 2012 16 market demand, employability potential, availability of infrastructure, etc. No institute can have a legitimate right or expectation to run a particular course forever and it is the pervasive power and authority vested in the Government to frame policy and guidelines for progressive and legitimate growth of the society and create balances in the arena inclusive of imparting technical education from time to time. Inasmuch as the institutions found fit were allowed to run other courses except the three mentioned above, the doctrine of legitimate expectation was not disregarded by the State. Inasmuch as ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstance based on relevant and acceptable materials. The courts do not substitute their views in the decision of the State Government with regard to policy matters. In fact, the court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the W.P.C.No.29611 of 2012 17 Constitution.
(iii) All India Council for Technical Education v.
Surinder Kumar Dhawan and Others [(2009) 11 SCC 726] Paragraph 32 is relied upon which reads as under:
"32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like AICTE. This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma-holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 W.P.C.No.29611 of 2012 18 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Courts should guard against such forays in the field of education."
(iv) Another judgment relied upon is Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale [(2012) 2 SCC 425]. The relevant paragraphs are 78, 79 and 87 which reads as under:
"78. The learned counsel for the appellants did not seriously contest the position that the provisions contained in Sections 14(3) and 15(3) read with Regulations 7(2), (3), (4), (5) and (9) are mandatory and the Regional Committee cannot grant recognition unless it is satisfied that the applicant has fulfilled the mandatory conditions prescribed in the 1993 Act and the Regulations. They also did not dispute that in view of Section 16, the examining body cannot grant affiliation, whether provisional or permanent to any institution or hold examination W.P.C.No.29611 of 2012 19 for the courses of training conducted by a recognised institution unless the institution concerned has obtained recognition under Section 14 or permission for a course or training under Section 15.
79. What needs to be emphasised is that no recognition/permission can be granted to any institution desirous of conducting teacher training course unless the mandatory conditions enshrined in Sections 14(3) or 15(3) read with the relevant clauses of Regulations 7 and 8 are fulfilled and that in view of the negative mandate contained in Section 17-A read with Regulation 8(10), no institution can admit any student unless it has obtained unconditional recognition from the Regional Committee and affiliation from the examining body.
87. As a sequel to the above discussion, we hold that the impugned orders do not suffer from any legal infirmity warranting interference by this Court. We also reiterate that:
(i) The Regional Committees established under Section 20 of the 1993 Act are duty-bound to ensure that no private institution offering or W.P.C.No.29611 of 2012 20 intending to offer a course or training in teacher education is granted recognition unless it satisfies the conditions specified in Section 14(3)(a) of the 1993 Act and Regulations 7 and 8 of the Regulations. Likewise, no recognised institution intending to start any new course or training in teacher education shall be granted permission unless it satisfies the conditions specified in Section 15(3)(a) of the 1993 Act and the relevant Regulations.
(ii) The State Government/UT Administration, to whom a copy of the application made by an institution for grant of recognition is sent in terms of Regulation 7(2) of the Regulations, is under an obligation to make its recommendations within the time specified in Regulation 7(3) of the Regulations.
(iii) While granting recognition, the Regional Committees are required to give due weightage to the recommendations made by the State Government/UT Administration and keep in view the observations made by this Court in St. Johns Teachers Training Institute v. National Council for Teacher Education and National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan W.P.C.No.29611 of 2012 21 Sansthan, which have been extracted in the earlier part of this judgment.
(iv) The recognition granted by the Regional Committees under Section 14(3)(a) of the 1993 Act read with Regulations 7 and 8 of the Regulations and permission granted under Section 15(3)(a) read with the relevant Regulations shall operate prospectively i.e. from the date of communication of the order of recognition or permission, as the case may be.
(v) The recognition can be refused by the Regional Committee under Section 14(3)(b), in the first instance, when an application for recognition is made by an institution. Likewise, permission can be refused under Section 15(3)(b).
(vi) If the recognition is refused under Section 14(3)
(b) after affording reasonable opportunity to the applicant to make a written representation, the institution concerned is required to discontinue the course or training from the end of the academic session next following the date of receipt of the order.
(vii) Once the recognition is granted, the same can be withdrawn only under Section 17(1) if there is a W.P.C.No.29611 of 2012 22 contravention of the provisions of the Act or the Rules, or the Regulations, or orders made therein, or any condition subject to which recognition was granted under Section 14(3)(a) or permission was granted under Section 15(3)(a).
(viii) The withdrawal of recognition becomes effective from the end of the academic session next following the date of communication of the order of withdrawal.
(ix) Once the recognition is withdrawn under Section 17(1), the institution concerned is required to discontinue the course or training in teacher education and the examining body is obliged to cancel the affiliation. The effect of withdrawal of the recognition is that the qualification in teacher education obtained pursuant to the course or training undertaken at such institution is not to be treated as valid qualification for the purpose of employment under the Central Government, any State Government or university or in any educational body aided by the Central or the State Government.
(x) In view of the mandate of Section 16, no examining body, as defined in Section 2(d) of the W.P.C.No.29611 of 2012 23 1993 Act, shall grant affiliation unless the applicant has obtained recognition from the Regional Committee under Section 14 or permission for starting a new course or training under Section 15.
(xi) While granting affiliation, the examining body shall be free to demand rigorous compliance with the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines/norms which may have been laid down by the examining body concerned.
(xii) No institution shall admit any student to a teacher training course or programme unless it has obtained recognition under Section 14 or permission under Section 15, as the case may be.
(xiii) While making admissions, every recognised institution is duty-bound to strictly adhere to Paras 3.1 to 3.3 of the Norms and Standards for Secondary/Pre-School Teacher Education Programme contained in Appendix 1 to the Regulations.
(xiv) If any institution admits any student in violation of the Norms and Standards laid down by NCTE, then the Regional Committee shall initiate W.P.C.No.29611 of 2012 24 action for withdrawal of the recognition of such institution and pass appropriate order after complying with the rules of natural justice.
(xv) The students admitted by unrecognised institution and institutions which are not affiliated to any examining body are not entitled to appear in the examination conducted by the examining body or any other authorised agency.
(xvi) The students admitted by the recognised institutions otherwise than through the entrance/eligibility test conducted in accordance with the admission procedure contained in Para 3.3 of Appendix 1 to the Regulations are also not entitled to appear in the examination conducted by the examining body or any other authorised agency.
(xvii) NCTE shall issue direction for mandatory inspection of recognised institutions on periodical basis and all the Regional Committees are duty- bound to take action in accordance with those directions.
(xviii) In future, the High Courts shall not entertain prayer for interim relief by unrecognised institutions and the institutions which have not W.P.C.No.29611 of 2012 25 been granted affiliation by the examining body and/or the students admitted by such institutions for permission to appear in the examination or for declaration of the result of examination. This would also apply to the recognised institutions if they admit students otherwise than in accordance with the procedure contained in Appendix 1 of the Regulations.
10. The argument of the learned counsel for the respondent is that the court shall be very cautious in exercising jurisdiction in matters relating to academic matters and especially in a case where the parties are bound by the regulations, guidelines and norms. Sympathy shall not be a factor for the grant of any reliefs.
11. Keeping in mind the judgments relied upon by either side, the first question to be considered in this writ petition is whether Clause 3.1(d) of the APH is ultra vires the statute. Sections 10(g),(k) and 23(1) which are relevant to the context reads as under:
W.P.C.No.29611 of 2012 26
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 of performing its functions under this Act, the Council may--
xxxxxx
(g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability; xxxxxx
(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;
23. Power to make regulations.--(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act, and the rules generally to carry out the purposes of this Act.
W.P.C.No.29611 of 2012 27 Under section 10(g) of the AICTE Act, the main function of the Council inter alia includes evolving suitable performance appraisal systems for institutions incorporating norms and mechanisms for enforcing accountability. Section 23(1) enables the Council to make regulations which are not inconsistent with the provisions of the Act, and generally to carry out the purposes of the Act. Ext.P19 is the Regulation framed by the AICTE by virtue of its powers under section 23 (1) of AICTE Act. Clause 4.3 of the Regulations indicates as follows:
"The Council shall publish, from time to time, Approval Process Handbook, detailing the conditions of approval and procedure to process the applications of Institutions and/or promoters."
Therefore the power to publish APH is in terms with the Regulation 4.3 which shall contain details of the conditions of approval and procedure to process the applications of Institutions and/or promoters. Clause 3.1(d) of APH is only an appraisal system for technical institutions and mechanisms W.P.C.No.29611 of 2012 28 for enforcing accountability as provided under Section 10(g), which is a statutorily recognised function of AICTE. Hence the contention that clause 3.1(d) of APH is ultra vires the AICTE Act cannot be accepted.
12. The next question is whether the aforesaid clause is ultra vires the Constitution. The main argument relied upon by the learned counsel for the petitioner is based on judgments referred above in order to contend that the procedure prescribed is not a standard procedure. As per Clause 3.1(d) of APH when there is a charge against one of the members of an institution, the AICTE has the power to refuse permission jeopardizing the interest of the student community at large. Though this argument is attractive one has to consider this argument based on the background of the provisions of the Act itself. The whole concept of AICTE Act and the Regulations framed thereunder is to give uniform technical education to the students through competent educational institutions. It gives an opportunity W.P.C.No.29611 of 2012 29 for the students to have expression of thought in their academic brilliance and also to give them an opportunity to come up in the society as good law abiding citizens. If one of the promoters of the educational agency is involved in a criminal case, how the students would view the situation is a factor which definitely requires consideration. Should they be told that the charge is for bribing the officials for getting approval for the college. Therefore, if one looks at the object of framing such a restriction, it has to be found that object is laudable. That apart, instances are plenty when attempts were made by various office bearers of the institutions to illegally obtain permission from AICTE in collusion with officers of AICTE. Large scale corruption was noticed by CBI and it was found that despite the fact that several colleges did not have the proper infrastructure as per the fixed norms, still permission was granted. It is said that, action had been taken against several institutions who had indulged in such practices. Therefore, AICTE thought fit W.P.C.No.29611 of 2012 30 to provide a provision in the APH to indicate that if the promoters are involved in any case their institution will not be given approval. Such a provision, according to me, will prevent corruption activities being undertaken by members of the Committee, Trust or other organisation which runs the educational agency. It is true that as contended by the learned counsel for the petitioner, there may be instances where this provision will be misused by many. If at all some case is filed falsely still the institution will suffer in that regard. This argument is understandable but viewing it at a larger perspective, imposing such restrictions would only render giving effect to the object of the AICTE Act.
13. Another contention urged by the learned counsel for the petitioner is that this provision amounts to penalising an individual before he is convicted of any offence. The argument is that a mere charge sheet being filed by itself would not mean that a person is convicted of an offence. True under normal circumstances, unless a person is W.P.C.No.29611 of 2012 31 convicted, he cannot be termed as guilty of having committed an offence. But the situation in this case is slightly different. Here, we are concerned about an educational institution which has to show the right path to the future generation. A student has to imbibe all social and moral values in addition to the academic standards stipulated by the Universities. That being the situation, if the Council felt that a rigorous approach is required to be made in respect of educational agencies, the Council cannot be found fault with. That apart, this provision had been included to avoid any corruption in the matter relating to the grant of permission or approval by AICTE. That being the situation, I do not think that the judgments relied upon by the petitioner will have any contextual application to the factual circumstances involved in the case. Therefore, I am of the view that the challenge as against the vires of Clause 3.1(d) of APH is justifiable.
W.P.C.No.29611 of 2012 32
14. The next question is whether the petitioner's College can be given an approval. As held by the Supreme Court in Adarsh Shiksha Mahavidyalaya (Supra) there cannot be any sympathy for the grant of any relief. This is an educational institution which has to function in a proper manner and it can be seen that the APH was published much earlier and it is after knowing the contents of APH, the application for renewal of approval was submitted. Even at that time the petitioner was aware of the fact that there was a charge against the Chairman of the Trust. Under normal circumstances, if that was the position, before even submitting the application, he could have stepped down and submitted the application which would have definitely avoided a situation like this. The learned counsel for the petitioner submits that a decision had been taken by the Chairman to step down from his position as Chairman and therefore the College should be given an opportunity to continue with the course as the students were already W.P.C.No.29611 of 2012 33 admitted.
15. That students were admitted in the academic year of 2012-2013 is disputed by the learned counsel appearing for the respondent as according to them, since no approval is granted, there could not be an instance of admitting any of the students in the College at all. Under these circumstances, the question to be considered is whether any direction could be issued to AICTE to consider the request of the petitioner.
16. It is not in dispute that there is a time limit for considering the application and providing the approval. Admittedly, the said time limit is already over. According to the petitioner, they had applied in January 2012 and there was no reply until October 2012. It is argued by the learned counsel for the respondent that during the relevant time, they did not even grant permission for the academic year 2011-2012 and that the web portal was not open. The application, if any, submitted by the petitioner was a hard W.P.C.No.29611 of 2012 34 copy sent to their Bangalore office which cannot be treated as a proper application. That apart, only after the disposal of the writ petition filed by the petitioner and approval is granted for the academic year 2011-2012 that a situation had arisen for considering the application for the academic year 2012-2013. There was a request pending in July 2012 which was replied by the impugned order based on Clause 3.1(d).
17. The learned counsel for the petitioner however relies upon the judgment of the Bombay High Court in Balaji's case in order to contend that the courts were lenient towards the Colleges in the matter relating to grant of approval. But it could be seen that those cases relates to instances where this particular provision was not in the APH. Another argument raised by the learned counsel for the petitioner is that the Madras High Court had set aside Clause 3.1(d) of the APH as violative of Article 14 of the Constitution of India. Though the learned counsel for the petitioner had W.P.C.No.29611 of 2012 35 raised vehement arguments on the basis of the said judgment, I am not persuaded to accept the said view. That apart, as I have already held, there is a purpose for making such a provision which cannot be lost sight of and when the object behind framing such a restriction in the APH is to make a corrupt free system in the matter relating to grant of approval by AICTE, definitely it would give a clear picture to educational institutions to comply with such strict procedures to run the said institutions. Such being the situation I do not think that the petitioner is entitled for any reliefs.
Accordingly this writ petition is dismissed.
sd/-
(A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.29611 of 2012 36 W.P.C.No.29611 of 2012 37 W.P.C.No.29611 of 2012 38