REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9048 OF 2012
(Arising out of SLP (C) No. 26086 of 2012)
Parshavanath Charitable Trust & Ors. … Appellants
Versus
All India Council for Tech. Edu & Ors. …Respondents
AND
CIVIL APPEAL NO. 9047 OF 2012
(Arising out of SLP(C) No.27021of 2012 @ CC No. 15485 of 2012)
Chetan Pathare & Anr. … Appellants
Versus
All India Council for Technical
Education & Ors. ...Respondents
J U D G M E N T
Swatanter Kumar, J.
1. IA Nos.1-2 of 2012 are applications filed by the two students of
Parshavanath College of Engineering run by Parshavanath Charitable Trust
for permission to file special leave petition SLP (C) No............ of
2012 (CC No.15485 of 2012) against the judgment dated 22nd August, 2012
passed by the High Court of Judicature at Bombay in Writ Petition No.460 of
2011. The applications are allowed subject to just exceptions.
2. SLP (C) No.26086 of 2012 has been preferred by the appellant-Trust
against the same judgment.
3. Leave granted in both the SLPs.
4. As the challenge in both these appeals is to one and the same
judgment of the Bombay High Court, it will, thus, be appropriate for us to
dispose of both these appeals by this common judgment.
FACTS :
5. The appellant, Parshvanath Charitable Trust, was formed as a
minority community trust in the year 1993.
One of its objects was to
establish educational institutions. Consequently, it established the
Parshavanath College, after obtaining approval of all the concerned
authorities on 11th June, 1994 with the intake capacity of 140 students for
academic year 1994-95.
This college was running at the premises being
Survey No.27 (part) at Kasarvadavali, Ghodbunder Road in the district of
Thane.
The annual approvals by the All India Council for Technical
Education (for short, the ‘AICTE’) continued till the year 2008.
On 29th
April, 2008, the appellant sought a ‘No Objection Certificate’ from the
University of Mumbai.
It also applied for an ‘occupation certificate’ from
the Municipal Corporation of Bombay for shifting the college to new
premises located at a distance of barely 300 meters from the old site being
Survey No. 12/1, 2, 4, 13/8, 9, 10A and 13/10B.
In furtherance to this,
the appellant had made an application dated 24th May, 2008 to the Regional
Office of the AICTE seeking its permission to shift the college to the new
premises and also submitted all the requisite documents.
The appellant had
also written to the Directorate of Technical Education for issuance of a No
Objection Certificate for the said purpose.
6. It is not in dispute that in May, 2008, the college shifted its
location to the new site.
This exercise was undertaken by the college and
the Trust without taking prior approval of the AICTE and
without receiving
“No Objection Certificate” from the University of Mumbai as well as the
State Government.
It is also evident from the record that no Occupation
Certificate was received from the Municipal Corporation of Thane before
shifting.
7. On or about 24th June, 2008, the AICTE appointed an Expert Committee
to verify the infrastructure available at the new site and the Expert
Committee visited the college on 28th June, 2008.
It noted that No
Objection Certificate of the affiliating University for change in the
location had not been produced though they were informed that the same was
in process.
It also made certain observations with regard to the title of
the land and the same, according to them, stood in the name of some other
Trust which in turn had leased out the land to the appellant Trust.
The
Committee also noticed that all the laboratories and other infrastructure
had been shifted to the new site.
On 30th June, 2008, the AICTE granted
an extension of approval to the Engineering College for the academic years
2008-2011 with an intake capacity of 280 students.
Clause 3 of this
approval letter reads as under :-
“3. That the institution shall operate only from the approved
location, and that the institution shall not open any off campus
study centres/extensive centres directly or in collaboration with
any other institution/university organization for the purpose of
imparting technical education without obtaining prior approval
from the AICTE.”
8. As is obvious from a bare reading of the letter, the appellant-
college was to run its courses from the campus which was approved.
Thereafter vide letter dated 20th August, 2009, AICTE granted approval to
the appellant-college with increased intake from 280 to 360 students for
the academic year 2009.
9. The appellant college was running its courses when the show cause
notice dated 18th May, 2010 was issued by the AICTE to the Trust on the
ground that the college had shifted to another location without obtaining
prior approval of the AICTE.
It was stated therein that an institution
has to run courses only from an approved site and if it desires to shift to
another site, it has to follow the complete procedure as per the norms of
AICTE.
The show cause notice reads as under:-
“Your institutions i.e. PARSHWANATH COLLEGE OF ENGINEERING and
VEER MATA HIRABEN P. SHAH COLLEGE OF PHARMACY are approved by
AICTE for running engineering and pharmacy course at
GODBHUNDER ROAD, KASAR VADAVALI 400601 DIST. THANE as per our
records as a permanent site.
As per AICTE norms, the institute has to run the courses in
the approved site only. In any case, if the institute wants
to shift the institute to another location, due process has to
be followed as per AICTE norms to get AICTE approval for
shifting.
However, it was found that you have shifted your Engineering
And Pharmacy institutions to another location without
obtaining approval from AICTE, which is gross violation of
AICTE norms.
In the above circumstances, you are requested to show-cause as
to why disciplinary action should not be initiated including
withdrawal of approval or reducing your intake/stop admission.
Your reply should reach AICTE headquarters and Regional
Office within three working days.”
10. To this, the appellant Trust submitted its reply dated 21st May, 2010
relevant extract of which reads as under:-
“We have reason to state that after filing proposal for shifting
the aforesaid colleges to the new premises, we have applied for
permission for shifting the aforesaid colleges in the new
premises in the year 2008 only and accordingly we are conducting
engineering and pharmacy colleges in the new premises.”
11. The matter remained in controversy, but as a result of issuance of
show cause notice, the college of the appellant Trust was not included in
the Centralised Admission Process (CAP) by the State Government.
The
appellant, thus, challenged the non- inclusion of the college in the CAP
and action of the State Government by filing a Writ Petition before the
Bombay High Court being Writ Petition (Civil) No. 1776 of 2010.
This Writ
Petition was allowed by a Division Bench of the High Court vide its order
dated 11th August, 2010 wherein it directed as under:-
“17. We, therefore, allow this petition and quash and set aside
the impugned communication of the Director of Technical
Education and direct the respondents to permit the appellant-
college to participate in the Central Admission Process when the
second round has commenced.
18. In view of the submission already made by the petitioners
in their reply dated 21st May, 2010 i.e. the Joint Charity
Commissioner has passed the restraint against their Managing
Trustee restraining him from interfering in the administration
of the college and the educational institution run by the trust,
we also direct that the respondent-Municipal Corporation of
Thane should consider the petitioner’s application for grant of
occupation certificate for the building in which the engineering
college and the pharmacy college are being run without being
influenced by any objection taken by Mr. Tekchand Shah against
whom the order is passed by the Charity Commissioner.
19. It is clarified that it is open to the AICTE to proceed
with the show-cause notice but if any order adverse to the
petitioner-college is passed, the same shall not be implemented
for a period of two weeks from today.
20. This order is passed in presence of the learned Assistant
Government Pleader appearing for the Director of Technical
Education and Mr. S.V. Kolla, officer, Admission Section from
the office of Director of Technical Education who shall
immediately instruct the concerned persons to place the name of
the petitioner-engineering college on the website of the
centralised online admission process today itself.”
12. It needs to be noticed at this stage that during the proceedings
before the Division Bench, the Municipal Corporation of Thane had stated
that Occupancy Certificate had not been granted to the appellant-college;
however, reason thereof could not be brought to the notice of the Court at
that stage because of shortage of time. In the meanwhile, certain
disputes also arose among the management of the appellant-Trust.
13. Subsequent to the above order of the High Court, on 7th January,
2011, the AICTE passed an order withdrawing the approval granted to the
appellant-college in terms of Clause 2.11 of the Approval Process Handbook
and the Guidelines for the academic year 2008-2009 and the terms and
conditions mentioned in the Letter of Approval.
The basis for withdrawing
the approval was shifting of the college to the new location without
Occupancy Certificate, without informing the State Government and without
obtaining the requisite permission from the AICTE as per regulations.
The
Expert Committee had also noticed in its inspection dated 28th June, 2008
that the construction was not suitable.
14. This cancellation of approval was challenged by the appellant-Trust
before the Bombay High Court in Writ Petition No.460 of 2011.
Inter
alia, the principal contention before the High Court was that an
application dated 24th May, 2008 was made to the AICTE for change in
location. Contemporaneously, applications were also made to the University
of Mumbai and the Directorate of Technical Education for the issuance of No
Objection Certificate and extension of approval by the AICTE itself showed
that the site in question met the requisite standards and there was no
justification for reducing the intake capacity and withdrawing the
approval.
The High Court noticed that there was no challenge to the
Regulations or any other clause of the Handbook. Clause 9.22 of the Hand
Book for Approval Process 2008 required a registered sale or gift deed in
favour of the institution and only a Government lease of 30 years was
acceptable as per that clause. The relevant para of Clause 9.22 reads as
follows:-
“9.22. Procedure for Change of Site and Norms Concerning Land and
Building on New Site.
Changing of location/Station may be permitted after getting “No
Objection Certificate” (NOC) from the concerned State Govt./UT
Administration and Affiliating Body, by the Competent Authority in
AICTE as per laid down procedure subject to the fulfilment of Norms
and Standards of AICTE.
No request/representation/Proposal for
change of site will be considered after submission of
application/proposal for establishment of a new Technical
Institution, till the completion of at least two years after a new
institution is started with the approval of AICTE. No partial
shifting of institution to a different site shall be permitted.
The following procedure shall be followed:
The applicant shall have to submit a Proposal along with the
following documents in original in one lot to the concerned
Regional Office of AICTE.
• Registration document of the Trust/Society indicating members
of Society/Trust and its Objectives.
• Land document(s) in original for the new site showing
ownership in the name of Trust/Society in the form of
Registration Sale Deed/Irrevocable Gift Deed
(Registered)/Irrevocable Government Lease (for a minimum of 30
years) by concerned authority of Government. In case, the
land documents are in vernacular language, Notarized English
translation of the document must to be produced.
• Land use Certificate/Land Conversion Certificate for the new
site allowing the land to be used for educational purpose,
from the Competent Authority along with Topo-sketch/Village
Map indicating land Survey Nos. and a copy of city map showing
location of proposal site of the institution.
• Site Plan, Building Plan for the new site prepared by a
registered Architect and duly approved by the Competent Plan
Sanctioning Authority designated by the concerned State.
• Proof of completion of the building structure at the new site
as per approved Engineering & Architectural Building Plan, in
the form of Color photographs giving External and Internal
views.
• An undertaking by the Institution stating that the changes
shall not affect the admission procedure and the fee that a
student has to pay.”
(emphasis supplied)
15. While noticing the above Clauses, the High Court proceeded on the
admitted position that the appellant-college had shifted to the new site
without the necessary permission and further it had no ownership to the
land in question at the relevant time.
The Court also noticed that an
inspection was carried out by the Municipal Corporation on 9th August, 2012
and they had still not issued the Occupancy Certificate to the appellant-
college.
16. In view of the above factual matrix of the case, the Division Bench
of the High Court dismissed the writ petition vide order dated 22nd August,
2012 and also passed a direction with regard to adjustment of students in
other colleges keeping their welfare in mind.
The operative part of the
order reads as under:-
“20. In the exercise of the jurisdiction under Article 226
of the Constitution of India it would not be permissible for
this Court to direct AICTE to grant its approval for
conducting the engineering college at the new location
particularly in view of the fact that no Occupation
Certificate has been granted; the Petitioners have not
established a clear title to or ownership of land and they
have not obtained the NOCs of the State government or of the
University of Mumbai.
21. Learned Counsel appearing on behalf of AICTE has stated
before the Court that AICTE will take all necessary steps to
ensure that the welfare of the students who have been allotted
to the Petitioners would be duly taken care of by making
alternative allotments to other institutions in consultation
with the Directorate of Technical Education of the State
government.
22. For these reasons, it would not be appropriate to
interfere with the decision which has been taken by the AICTE.
The Petition shall stand dismissed. There shall be no
order as to costs.
23. In view of the dismissal of the Petition, the
Notices of Motion do not survive which shall accordingly stand
disposed of.”
17. Aggrieved from the dismissal of the writ petition by the High Court,
the appellants have filed the present appeals.
18. As already noted, two students of Parshvanath College of Engineering
have filed a separate application for leave to prefer Special Leave
Petition against the same judgment of the High Court dated 22nd August,
2012. According to the appellant-students in Civil Appeal arising out of
SLP (C) No. ..............of 2012 (CC No.15485/2012), the judgment of the
High Court has adversely affected their interests. It is their contention
that revocation of approval has resulted in closure of the Engineering
College and it has jeopardised the future and career of the students
studying in the college including those studying in pursuance of the
interim orders passed by the same High Court.
19. We allow this application and, in fact, the affected appellant-
students have been heard along with parties in the main appeal. Thus, as
already noticed, we would dispose of both these appeals by this common
judgment.
20. Before we dwell upon the merit or otherwise of the contentions
raised, it is necessary for us to notice certain settled legal principles
which would help in judicious disposal of these appeals.
21. 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 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.
22. The provisions of the AICTE Act, including its preamble, make it
abundantly clear that the AICTE has been established under the Act for
coordinated and integrated development of the technical education system at
all levels throughout the country and is enjoined to promote qualitative
improvement of such education in relation to planned quantitative growth.
The AICTE is required to regulate and ensure proper maintenance of norms
and standards in technical education system. The AICTE is to further
evolve suitable performance appraisal system for technical institutions and
universities incorporating norms and mechanisms in enforcing their
accountability. It is required to provide guidelines for admission of
students and has the power to withhold or discontinue grants to such
technical institutions where norms and standards laid down by it and
directions given by it from time to time are not followed. The duty and
responsibility cast on the AICTE implies that the norms and standards to be
set should be such as would prevent isolated development of education in
the country.
23. 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 sub-section
(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.
24. All these vitally important aspects go to show that the Council
(AICTE) created under the AICTE Act is not intended to be an authority
either superior to or to supervise and control the universities and thereby
superimpose itself upon such universities merely for the reason that they
are imparting teaching in technical education or programmes in any of their
departments or units. A careful scanning of the provisions of the AICTE Act
and the provisions of the University Grants Commission Act, 1956 in
juxtaposition, will show that the role of AICTE vis-à-vis the universities
is only advisory, recommendatory and one of providing guidance, thereby
subserving the cause of maintaining appropriate standards and qualitative
norms and not as an authority empowered to issue and enforce any sanctions
by itself. Reference can be made to the judgments of this Court in the
case of Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale [(2012) 2 SCC
425], State of Tamil Nadu v. Adhiyaman Educational & Research Institute
[(1995) 4 SCC 104] and Bharathidasan University v. All India Council for
Technical Education [(2001) 8 SCC 676].
25. From the above principles, it is clear that the AICTE has varied
functions and powers under the AICTE Act. It is a specialized body
constituted for the purpose of bringing uniformity in technical education
all over the country and to ensure that the institutions which are
recognised by the AICTE are possessed of complete infrastructure, staff and
other facilities and are capable of maintaining education standards for
imparting technical education.
26. It is not necessary for us to refer to various provisions of the
AICTE Act in any greater detail as no controversy in relation to
application or interpretation of any of its provisions is raised for
consideration in the present case.
The facts are primarily admitted and it
is only the exercise of discretion vested in the AICTE which is the subject
matter of challenge in the present appeals.
In the case of Jaya Gokul
Educational Trust v. Commissioner & Secretary to Government Higher
Education Department, Thiruvanathapuram, Kerala State and Anr. [(2000) 5
SCC 231], this Court after discussing all the relevant provisions of the
AICTE Act and provisions of the Madras University Act, 1923 (for short “the
Madras Act”) which required the Institute to obtain approval of the State
Government before it started the academic courses, found that the
provisions of the latter Act overlapped and were in conflict with the
provisions of the AICTE Act in various areas and granting of approval for
starting new technical institutions, inspection of technical institutions,
etc. The Court held as under:-
“17. ... Thus, in the two passages set out above, this Court
clearly held that because of Section 19(K) of the Central Act
which vested the powers of granting approval in the Council, the
T.N. Act of 1976 and the University Act, 1923 could not deal
with any questions of ‘approval’ for establishment of technical
institutions. All that was necessary was that under the
Regulations, the AICTE Council had to consult them.
XXX XXX XXX
22. As held in T.N. case the Central Act of 1987 and in
particular, Section 10(k) occupied the field relating to “grant
of approvals” for establishing technical institutions and the
provisions of the Central Act alone were to be complied with. So
far as the provisions of the Mahatma Gandhi University Act or
its statutes were concerned and in particular Statute 9(7), they
merely required the University to obtain the “views” of the
State Government. That could not be characterised as requiring
the “approval” of the State Government. If, indeed, the
University statute could be so interpreted, such a provision
requiring approval of the State Government would be repugnant to
the provisions of Section 10(k) of the AICTE Act, 1987 and would
again be void. As pointed out in T.N. case there were enough
provisions in the Central Act for consultation by the Council of
AICTE with various agencies, including the State Governments and
the universities concerned. The State-Level Committee and the
Central Regional Committees contained various experts and State
representatives. In case of difference of opinion as between the
various consultees, AICTE would have to go by the views of the
Central Task Force. These were sufficient safeguards for
ascertaining the views of the State Governments and the
universities. No doubt the question of affiliation was a
different matter and was not covered by the Central Act but in
T.N. case it was held that the University could not impose any
conditions inconsistent with the AICTE Act or its Regulation or
the conditions imposed by AICTE. Therefore, the procedure for
obtaining the affiliation and any conditions which could be
imposed by the University, could not be inconsistent with the
provisions of the Central Act. The University could not,
therefore, in any event have sought for “approval” of the State
Government.
23. Thus we hold, in the present case that
there was no
statutory requirement for obtaining the approval of the State
Government and even if there was one, it would have been
repugnant to the AICTE Act.
The University Statute 9(7) merely
required that the “views” of the State Government be obtained
before granting affiliation and this did not amount to obtaining
“approval”. If the University statute required “approval”, it
would have been repugnant to the AICTE Act. Point 1 is decided
accordingly.
XXX XXX XXX
27. The so-called “policy” of the State as mentioned in the
counter-affidavit filed in the High Court was not a ground for
refusing approval.
In Thirumuruga Kirupananda & Variyar
Thavathiru Sundara Swamigal Medical Educational & Charitable
Trust v. State of T.N. which was a case relating to medical
education and which also related to the effect of a Central law
upon a law made by the State under Entry 25 List III, it was
held (at SCC p. 35, para 34) that the
“essentiality certificate cannot be withheld by the State
Government on any policy consideration because the policy
in the matter of establishment of a new medical college now
rests with the Central Government alone”.
(emphasis supplied)
Therefore, the State could not have any “policy” outside the
AICTE Act and indeed if it had a policy, it should have placed
the same before AICTE and that too before the latter granted
permission.
Once that procedure laid down in the AICTE Act and
Regulations had been followed under Regulation 8(4), and the
Central Task Force had also given its favourable
recommendations, there was no scope for any further objection or
approval by the State.
We may however add that if thereafter,
any fresh facts came to light after an approval was granted by
AICTE or if the State felt that some conditions attached to the
permission and required by AICTE to be complied with, were not
complied with, then the State Government could always write to
AICTE, to enable the latter to take appropriate action.
Decision of University in not granting further or final
affiliation wrong on merits.
XXX XXX XXX
30. Thus, the University ought to have considered the grant of
final or further affiliation without waiting for any approval
from the State Government and should have acted on the basis of
the permission granted by AICTE and other relevant factors in
the University Act or statutes, which are not inconsistent with
the AICTE Act or its Regulations.”
27. The consistent view of this Court has been that
where both Parliament
and State Legislature have the power to legislate, the Central Act shall
take precedence in the matters which are covered by such legislation and
the State enactments shall pave way for such legislations to the extent
they are in conflict or repugnant.
As per the established canons of law,
primacy of the Central Act is undisputable which necessarily implies
primacy of AICTE in the field of technical education.
Statutes like the
present one as well as the National Council for Teachers Education Act,
1993,
the Medical Council of India Act, 1956, etc. fall within the ambit of
this canon of law.
The AICTE is the authority constituted under the
Central Act with the responsibility of maintaining operational standards
and judging the infrastructure and facilities available for imparting
professional education. It shall take precedence over the opinion of the
State as well as that of the University. The concerned department of the
State and the affiliating university have a role to play, but it is limited
in its application. They cannot lay down any guidelines or policies in
conflict with the Central statute or the standards laid down by the Central
body.
The State can frame its policies, but such policy again has to be in
conformity with the direction issued by the Central body. Though there is
no such apparent conflict in the present case, yet it needs to be clarified
that grant of approval by the State and affiliation by the University for
increased intake of seats or commencement of new college should not be
repugnant to the conditions of approval/recommendation granted by the
AICTE.
These authorities have to work in tandem as all of them have the
common object to ensure maintenance of proper standards of education,
examination and proper infrastructure for betterment of technical
educational system.
28. It is also a settled principle that the regulations framed by the
central authorities such as the AICTE have the force of law and are
binding on all concerned.
Once approval is granted or declined by such
expert body, the courts would normally not substitute their view in this
regard. Such expert views would normally be accepted by the court unless
the powers vested in such expert body are exercised arbitrarily,
capriciously or in a manner impermissible under the Regulations and the
AICTE Act.
In the case of AICTE v. Surinder Kumar Dhawan [(2009) 11 SCC
726], this Court, while stating the principles that the courts may not
substitute their opinion in place of opinion of the Council, held as under:-
“The role of statutory expert bodies on education and role of
courts are well defined by a simple rule. If it is a question
of educational policy or an issue involving academic matter, the
courts keep their hands off. If any provision of law or
principle of law has to be interpreted, applied or enforced,
with reference to or connected with education, courts will step
in. In Dr. J.P. Kulshreshtha v. Chancellor, Allahabad
University: (1980) IILJ 175 SC this Court observed:
Judges must not rush in where even educationists fear to
tread... While there is no absolute bar, it is a rule of
prudence that courts should hesitate to dislodge decisions of
academic bodies.
In Maharashtra State Board of Secondary and Higher Secondary
Education v. Paritosh Bhupesh Kumar Sheth : [1985] 1 SCR 29,
this Court reiterated:
..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 day-to-day working of educational
institutions and the departments controlling them.”
18. 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. 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.”
29. Right from the case of Unni Krishnan, J.P. and others etc. etc. V.
State of Andhra Pradesh and Others etc. etc. [(1993) 1 SCC 645], this Court
has unequivocally held that the right to establish an educational
institution does not carry within it the right to recognition or the right
to affiliation.
Grant of recognition or affiliation is neither a matter of
course nor is it a formality. Admission to the privileges of a University
is a power to be exercised with great care keeping in view the interest of
the public at large and the nation.
Recognition has to be as per
statutorily prescribed conditions and their strict adherence by all
concerned. These conditions of recognition and the duly notified
directions controlling the admission process are to be construed and
applied stricto sensu.
They cannot be varied from case to case. Time
schedule is one such condition specifically prescribed for admission to the
colleges. Adherence to admission schedule is again a subject which
requires strict conformity by all concerned, without exception.
Reference
in this regard can be made to Ranjan Purohit and Ors. v. Rajasthan
University of Health Science and Ors. [(2012) 8 SCALE 71] at this stage, in
addition to the case of Medical Council of India v. Madhu Singh [(2002) 7
SCC 258].
30. In light of the above principles, let us now revert to the facts of
the case in hand.
There is no dispute as to the fact that the appellant-
college had shifted to the new premises without approval of the AICTE and
without ‘No Objection Certificate’ from the State Government and
Directorate of Technical Education.
Undisputedly, the college had no title
to the property in question inasmuch as the property had been sold in a
Court auction by the bank on 8th August, 2011 and had been purchased by a
firm in which the members of the Trust were partners. This partnership firm
had executed a Memorandum of Understanding with the appellant Trust and
given property on lease to the Trust.
These undisputed facts clearly show
that the appellant-college had no title to the property and, in fact, it
did not even have a registered lease deed in its favour to create some
recognizable interest in the property in question.
The High Court in its
judgment had specifically noticed the defects pointed out by the Expert
Committee.
They, inter alia, related to some disputes within the management
of the Trust, failure to obtain NOC from the State Government, Occupancy
Certificate from the Municipal Corporation, Thane and NOC from the
University of Mumbai, omission to seek/obtain the approval of AICTE and
finally shifting to the new premises despite such non-compliance.
31. We have already noticed that the compliance with the conditions for
approval as well as regulations and provisions of the AICTE Act is an
unexceptionable condition. Clause 9.22 of the Handbook of Approval Process
issued by the AICTE provides a complete procedure for change of location,
station and the same is permissible subject to compliance with the
procedure. It contemplates obtaining of ‘No Objection Certificate’ from
the concerned State Government or UT Administration and affiliating body.
The same clause also requires submission of the land documents in original
and clearly provides that the same may be a registered sale deed,
irrevocable government lease for a minimum period of 30 years, etc. by the
concerned authority of the Government. Further, it provides that site
plan, building plan for new site should be prepared by a registered
architect and should be approved by the Competent Plan Sanctioning
Authority designated by the State.
32. One of the contentions raised before us is that the AICTE itself had
granted approval for the academic years 2008-09 and 2009-10 both vide
letters dated 30th June, 2008 and 20th August, 2009, respectively. This
itself should be taken to be a deemed compliance of all the requirements.
We shall separately deal with the issue with regard to the effect of these
letters and whether withdrawal of approval was a step appropriately taken
by the AICTE or not as well as the effect of the prescribed time schedule.
As of now, suffice it to note that even these approvals for the relevant
academic years had clearly stated that the institution shall operate only
from the approved location and it shall not open any campus/executive
centres directly or in collaboration with any other institution/university
for the purpose of imparting technical education without obtaining prior
approval from the AICTE. The approval for these academic years was granted
to the college being run at Survey Nos.27 (part) at Lasandvali, Godbhunder
Road, Kasar Vadavali, Thane, and not at any other place.
33. Thus, there is no occasion to take it as a deemed and/or implied
approval for the new site of the appellant-college. Approval can hardly be
inferred. It is a matter of fact and the authorities are expected to
pass appropriate orders in accordance with law and upon due diligence and
in compliance with the procedure prescribed under law. For these reasons,
we find that the view taken by the High Court does not call for any
interference.
34. Thus, the view of the High Court that the college had failed to
comply with the requirements for grant of approval and had shifted to the
new site without approval of the AICTE and other concerned authorities
cannot be faulted with. There being no compliance to the legal
requirements and binding conditions of recognition, the withdrawal of
approval by the AICTE can also be not interfered with. Shifting of
students is a consequential order and is in the interest of the students.
35. The sequel to the above finding is that the appellant college could
not have been included in the counselling for the current year. Even
otherwise, the last date for admission was 30th August, 2012, which is
since over and we see no reason whatsoever to extend this date. We have
already noticed various judgments of this Court stating that the Court is
required to strictly construe and comply with the schedule for admission.
Even on that count, the appellant would not be entitled to any other
relief.
36. Another argument raised before us is that the appellant-college had
applied for shifting of the college to the new premises on 24th May, 2008,
but even after a lapse of two years, the AICTE had not finally disposed of
said request.
37. The college had shifted to the new premises without requisite
permission/approval and still permission was granted for the two years,
i.e., 2008-09 and 2009-10 and the show cause notice was issued only on 18th
May, 2010. We have no hesitation in observing that the AICTE is
evidentiary at fault and it ought not to have granted any approval for the
academic years 2008-09 and 2009-10. There has been definite slackness and
irresponsibility in functioning on the part of the AICTE. The approval
itself was issued by the Regional Committee when the application for
transfer was pending with the AICTE itself. It is a matter of regret
that as a result of such approval granted by the AICTE, the career of these
students has been jeopardised to some extent. Now, they are required to
shift colleges mid-term, even in excess of specified seats of those
colleges and hinder their academic courses. All this is bound to prove
disadvantageous to their academic career.
38. It is the requirement of law that there should be strict adherence to
the time schedule for grant of approval as well as for admissions without
exception. In exercise of the powers vested in the AICTE, under sub-
section (1) of Section 23 of the AICTE Act, it had made regulations namely
the All India Council for Technical Education (Grant of Approvals for
Staffing New Technical Institution, Introduction of Course and Programmes
and Approval of Intake Capacity) Regulations, 1994. Schedule to these
regulations reads as under:-
|Sl. |Stage of processing application |Last date by which |
|No. | |the processing |
| | |should be completed |
|(1) |(2) |(3) |
|1. |For receiving proposals by Bureau |31st December |
| |RC. | |
|2. |For the Bureau RC to screen the | |
| |application and (a) to return the | |
| |incomplete applications to | |
| |applicants, and (b) to forward the | |
| |applications to (i) State Government| |
| |concerned (ii) University or State | |
| |Board concerned, for their comments | |
| |(iii) Regional Officer to arrange | |
| |visits by Export Committees, and | |
| |(iv) Bureaus MPCD, BOS and RA for | |
| |their comments. | |
|3. |For receiving the comments is from |15th March |
| |(i) the State Government (ii) the | |
| |University or State Board and (iii) | |
| |the Regional Committee based on the | |
| |Expert Committee’s report and (iv) | |
| |from the Bureaus MPCD, BOS and RA | |
|4. |For consideration of the comments | |
| |from the State Governments, |31st March |
| |Universities or State Boards, | |
| |Regional Committees, and Bureaus of | |
| |the Council by the State level | |
| |Committee | |
|5. |For recommendations to be made by | |
| |the Central Task Force |15th April |
|6. |For communicating the final decision| |
| |to the State Government or the |30th April |
| |University Grants Commission, under | |
| |intimation to the Regional office, | |
| |Director of Technical Education, | |
| |applicant, University or State Board| |
39. This Schedule has statutory backing. Thus, its adherence is
mandatory and not directory.
40. Non-adherence of this Schedule can result in serious consequences and
can jeopardize not only the interest of the college students but also the
maintenance of proper standards of technical education. The authorities
concerned, particularly the AICTE, should ensure proper and timely action
upon the applications submitted to it. It must respond to the applicant
within a reasonable time period and should not let the matter drag till the
final date giving rise to avoidable speculations by all stakeholders.
Thus, it would be appropriate for these authorities to bring to the
knowledge of the parties concerned, the deficiencies, if any, and the
defects pointed out by the Expert Committee during the inspection within
three weeks from the date of such inspection or pointing out of defects, as
the case may be. For better administration, the AICTE should also state
the time within which such deficiencies/defects should be removed by the
applicant. This will help in building of a coherent and disciplined method
of working to ensure the proper implementation of the entire formulated
scheme of technical education. The AICTE will not have any jurisdiction or
authority to issue approval for commencement of a new course or for
additional intake of students beyond 30th April of the year immediately
preceding the commencement of an academic year.
41. Apparently, there seems to be some variations in the Schedule issued
under Regulation 8(15), as aforenoticed, and the dates reflected in the
Handbook. Another Schedule has been printed as per the website of the
AICTE according to which the letter of approval for starting new technical
institutions could be issued by 10th October, if application was submitted
between January to June of the relevant year and 10th April, if the
application was submitted between July to December of that year. Rejection
of approval is an order which is appealable to the Appellate Committee of
the AICTE. If the applicant wishes to file an appeal against the order, he
is expected to file the appeal and, in any case, after directions of the
Appellate Committee are complied with, the order of approval after the
reconsideration/appeal has to be issued by 15th November in the first case
and 15th May in the other. If one reads these two schedules collectively,
it is clear that the letter of approval should be issued by 15th April or
by 30th April at the maximum. It is only the Appellate Committee’s order
which can be issued by 15th May. If such order grants recognition, then it
must specify the academic year for which it is being granted. If it falls
foul of the admission schedule, then it ought not to be granted for the
current academic year. It has been brought to our notice that the last
date for admission to the courses and the date on which the courses should
begin is 30th August of the academic year. In that event, admissions to
such courses, if permitted by the appellate authority, could be made
strictly in accordance with the academic Schedule and without violating the
same in any manner whatsoever. This brings us to the admission schedule
which again should be strictly obeyed by all concerned.
42. We must notice that admission schedule should be declared once and
for all rather than making it a yearly declaration. Consistency and
smoothness in admission process would demand and require that there is a
fixed and unaltered time schedule provided for admission to the colleges so
that the students know with certainty and well in advance the admission
schedule that is to be followed and on the basis of which they are to have
their choice of college or course exercised. The Schedule for admission
for the coming academic year, i.e., 2013-2014 has been submitted to the
Court after the matter was reserved for judgment. The said Schedule reads
as under :
|Event |Schedule |
|Conduct of Entrance Examination |In the month of May |
|(AIEEE/State CET/ Mgt. quota | |
|exams etc.) | |
|Declaration of Result of |On or before 5th |
|Qualifying Examination (12th |June |
|Exam or similar) and Entrance | |
|Examination | |
|1st round of counselling/ |To be completed on |
|admission for allotment of seats|or before 30th June |
|2nd round counselling for |To be completed on |
|allotment of seats |or before 10th July |
|Last round of counselling for |To be completed on |
|allotment of seats |or before 20th July |
|Last date for admitting |30th July. |
|candidates in seats other than |However, any number |
|allotted above |of rounds for |
| |counselling could be|
| |conducted depending |
| |on local |
| |requirements, but |
| |all the rounds shall|
| |be completed before |
| |30th July |
|Commencement of academic session|1st August |
|Last date upto which students |30th August |
|can be admitted against | |
|vacancies arising due to any | |
|reason (no student should be | |
|admitted in any institution | |
|after the last date under any | |
|quota) | |
|Last date of granting or |30th April |
|refusing approval by AICTE | |
|Last date of granting or |31st May |
|refusing approval by University | |
|/ State Govt. | |
43. The above Schedule though was finalized by the Committee on 29th
January, 2012 but the same appears to have been notified only on 30th
September, 2012. The reasons for the same are again unknown. We are
unable to appreciate that once the academic session begins on 1st August,
then as to why should admission be granted upto 30th August of the year,
particularly when, as per the terms of the Schedule, beyond or after 30th
April, AICTE will not issue any approval for commencement of new course for
additional intakes. The Schedule, thus, introduces an element of
arbitrariness and may cause prejudice to the students who might miss their
classes for a period of one month without any justification. Thus, it is
required that the above-stated Schedule be modified to bring it in line
with the Schedule for approval as well as to prevent inequalities,
arbitrariness and prejudice from affecting the students in relation to
their academic courses. The order granting or refusing approval, thus,
should positively be passed by 10th April of the relevant year. The appeal
should be filed within one week and the Appellate Committee should hear the
appeal and decide the same by 30th April of the relevant year. The
University should grant/decline approval/affiliation by 15th May of the
relevant year. Advertisement should be issued and entrance examination
conducted positively by the end of the month of May. The appropriate
Schedule, thus, would be as follows :
|Event |Schedule |
|Conduct of Entrance Examination |In the month of May |
|(AIEEE/State CET/ Mgt. quota | |
|exams etc.) | |
|Declaration of Result of |On or before 5th |
|Qualifying Examination (12th |June |
|Exam or similar) and Entrance | |
|Examination | |
|1st round of counselling/ |To be completed on |
|admission for allotment of seats|or before 30th June |
|2nd round counselling for |To be completed on |
|allotment of seats |or before 10th July |
|Last round of counselling for |To be completed on |
|allotment of seats |or before 20th July |
|Last date for admitting |30th July. |
|candidates in seats other than |However, any number |
|allotted above |of rounds for |
| |counselling could be|
| |conducted depending |
| |on local |
| |requirements, but |
| |all the rounds shall|
| |be completed before |
| |30th July |
|Commencement of academic session|1st August |
|Last date upto which students |15th August |
|can be admitted against | |
|vacancies arising due to any | |
|reason (no student should be | |
|admitted in any institution | |
|after the last date under any | |
|quota) | |
|Last date of granting or |10th April |
|refusing approval by AICTE | |
|Last date of granting or |15th May |
|refusing approval by University | |
|/ State Govt. | |
44. The admission to academic courses should start, as proposed, by 1st
August of the relevant year. The seats remaining vacant should again be
duly notified and advertised. All seats should be filled positively by 15th
August after which there shall be no admission, whatever be the reason or
ground.
45. We find that the above Schedule is in conformity with the
affiliation/recognition schedule afore-noticed. They both can co-exist.
Thus, we approve these admission dates and declare it to be the law which
shall be strictly adhered to by all concerned and none of the authorities
shall have the power or jurisdiction to vary these dates of admission.
Certainty in this field is bound to serve the ends of fair, transparent and
judicious method of grant of admission and commencement of the technical
courses. Any variation is bound to adversely affect the maintenance of
higher standards of education and systemic and proper completion of
courses.
46. Having declared the confirmed Schedule for grant of approval and
completion of admission process, now it is necessary for us to revert to
the apparent error in exercise of power and discretion by the AICTE.
Admittedly, the appellant-college had been carrying on its education
courses since the year 1994. It had submitted its application for transfer
to the new site on 24th May, 2008.
There is no document placed before us
by any party including the AICTE to show that this application was dealt
with either by the Regional Office or by the main office of the AICTE.
Having known the fact that the college had shifted to a new site, the AICTE
accorded approval for the academic years 2008-09 and 2009-10 for which
again there is no justification placed on record.
It is the case of the
appellant that the Expert Committee visited the new site of the appellant-
college where the college was being run on 26th June, 2008. Thereafter
approval for the two academic years was granted.
Strangely, on the basis
of the same report, on 18th May, 2010 the show cause notice was issued and
again the Expert Committee is stated to have visited the college premises
on 16th July, 2010 leading to the issuance firstly of the rejection of the
seats and, secondly, of withdrawal/cancellation of approval on 7th January,
2011.
47. We fail to understand
why the college was granted approval for the
academic years 2008-09 and 2009-10 particularly when the Expert Committee
is stated to have visited the premises on 26th June, 2008 and found
inadequacies in the report.
It is certainly a lapse on the part of the
AICTE which cannot be ignored by the Court as it had far-reaching
consequences including placing the career of the students admitted during
these two years in jeopardy.
Even though the High Court has directed
allocation of these students in other colleges, their academic course
certainly stands adversely affected and disturbed, for which the AICTE is
responsible.
In this regard, the Court cannot overlook such apparent
erroneous approach and default which can be for anything but bona fide
reasons.
Thus, we impose costs of Rs.50,000/- upon the AICTE for such
irresponsible working. The costs would be payable to the Supreme Court
Legal Services Committee and would be recovered from the salary of the
erring officials/officers involved in this erroneous approach. The
recovery shall be effected in accordance with law.
48. For the reasons afore-recorded,
we find no merit in both the appeals
afore-referred. While dismissing these appeals, we issue the following
directions :
(i) Both grant/refusal of approval and admission schedule, as
aforestated, shall be strictly adhered to by all the authorities
concerned including the AICTE, University, State Government and any
other authority directly or indirectly connected with the grant of
approval and admission.
(ii) No person or authority shall have the power or jurisdiction to vary
the Schedule prescribed hereinabove.
(iii) While dealing with the application for grant of approval to new
colleges or additional seats, the AICTE shall inform the applicant
within three weeks from the date of receipt of its application or date
of inspection, as the case may be, the shortcomings/defects, who, in
turn, shall remove such shortcomings/defects within 15 days from the
date of such communication or within such period as the AICTE may
grant and re-submit its papers without default. The process of grant
of approval has to be transparent and fair. The AICTE or the
concerned University or State Government shall take disciplinary
action against the person who commits default in adherence to the
Schedule and performance of his duties in accordance therewith.
(iv) The reports submitted by the Expert Committee visiting the college
should be unambiguous and clear, and should bear the date and time of
inspection and should be sufficiently comprehensive and inspection be
conducted in the presence of a representative of the institute.
(v) The students of the appellant-college shall be re-allocated to the
recognized and affiliated colleges in terms of the judgment of the
High Court; and the AICTE and the concerned University shall ensure
that the academic courses of these students are completed within the
balance period of the academic year in all respects. For this
purpose, if extra classes are required to be held, the concerned
institute, the University and the AICTE are directed to ensure holding
of such extra classes.
(vi) If the appellate authority decides the matter prior to 30th April of
the concerned year and grants approval to a college, then alone such
institution will be permitted to be included in the list of colleges
to which admissions are to be made and not otherwise. In other words,
even if the appellate authority grants approval after 30th April, it
will not be operative for the current academic year. All colleges
which have been granted approval/affiliation by 10th or 30th April, as
the case may be, shall alone be included in the
brochure/advertisement/website for the purpose of admission and none
thereafter.
…….…………................J.
(A.K. Patnaik)
...….…………................J.
(Swatanter Kumar)
New Delhi;
December 13, 2012
