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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1145 OF 2004
ASSOCIATION OF MANAGEMENT
OF PRIVATE COLLEGES … APPELLANT
VS.
ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NOS. 5736-5745 OF 2004
ADAIKALAMATH COLLEGE ETC. ETC. … APPELLANTS
VS.
ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION & ORS. … RESPONDENTS
J U D G M E N T
V. Gopala Gowda, J.
The appellants filed these civil appeals questioning the correctness of the
common judgment and order dated 19.11.2003 passed by the High Court of
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judicature at Madras in W.A. 2652 of 2001, W.A. No. 3090 of 2001, WA 2835
of 2001, WA 3087 of 2001, WA 2836 of 2001, WA 3091 of 2001, WA 3092 of
2001, WA 2837 of 2001, WA 3088 of 2001, WA 2838 of 2001 and WA 3089 of
2001, dismissing the writ appeals thereby affirming the dismissal of writ
petitions by wrongly interpreting the provisions of All India Council for
Technical Education Act, 1987 (for short AICTE Act) and held that even
though the University is not required to take permission from the All India
Council for Technical Education (for short AICTE), its affiliated colleges are
required to do so. Further, the High Court has held, while dismissing the writ
appeals, that the appellant colleges should get its course of MCA ratified by
AICTE as per the prescribed format which according to the appellants herein is
in contravention of settled principles of interpretation of Statutes and also runs
contrary to the law laid down by this Court in case of Bharathidasan
University & Anr. Vs. AICTE & Ors.
1
2. Certain relevant facts in relation to the appeals are stated hereunder:--
The appellant colleges in the State of Tamil Nadu are running Arts and
Science courses. Most of them are affiliated to Bharathidasan University and
some of them are affiliated to Manonmaniam Sundaranar University. The
member colleges of the appellant in C.A.No.1145 of 2004 and the appellants in
the connected appeals are running MCA course which have so far not obtained
the approval of the AICTE. According to the information placed before the
1
(2001) 8 SCC 676
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Court by the AICTE, as of the academic year 2001-2002, there were 865
institutions in the country offering 40,792 seats for the MCA course which had
the approval of the AICTE. Within the State of Tamil Nadu the number of
institutions which have received such approval are 208. As per the affidavit
filed on behalf of the State, it is stated that apart from the member colleges of
the first appellant and colleges of the second appellant, all other institutions
offering MCA have obtained the approval of the AICTE.
3. Regulations 1994 have been prescribed in Form II which is in terms of
Regulation 5(2)(b) and were framed pursuant to Section 10(k) of the AICTE
Act for grant of approval to the colleges who have started new technical
institutions, introduction of courses or programmes and approval of intake
capacity of seats for the courses or programmes. Form II is titled “Application
for Existing Institution(s) seeking AICTE approval without additional course(s)
and/or additional intake(s) in engineering/technology, architecture, pharmacy,
applied arts, etc.”
4. In the 1997, Regulation 2(2) framed by the AICTE was added by way of
an amendment to the 1994 Regulations, providing that the regulations are not
applicable inter alia, to the proposals relating to post graduate courses for
MBA, MCA or equivalent.
5. On 16.8.2000, the aforesaid sub-regulation (2) was deleted and the said
courses were added in Regulation 8(c) enabling the AICTE to prescribe the land
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and deposit requirements even in respect of Arts and Science Colleges having
MBA or MCA courses.
6. On 3.3.2001, a communication was sent by the AICTE to the member
colleges of the appellant in C.A. No.1145 of 2004 in respect of its proposal to
commence MCA course requiring the colleges to furnish information regarding
the proposed land and building. On 14.3.2001, a writ petition was filed by the
appellant’s association seeking relief to prohibit the AICTE from in any way
exercising its jurisdiction over its member colleges with reference to the MBA
and MCA courses conducted by them. The said writ petition was dismissed by
the learned single Judge holding that the AICTE Act and Regulations are
enforceable against the said member colleges of the appellant, against which the
Association had filed writ appeal. The same came to be dismissed by affirming
the judgment of the learned single Judge by passing impugned common
judgment which is under challenge in CA No.1145 of 2004.
6(a) So far as the facts in the connected appeals are concerned, they are stated
in brief as under:
The colleges run by the appellants in the connected appeals are affiliated
to Bharathidasan University and it has approved the courses and programmes
which are being conducted by the said colleges including MCA and MBA. The
AICTE Regulation is applicable to professional colleges only that to from
academic year 1994. There is no provision for existing arts and science colleges
which are running MCA courses. The letter dated 31.5.2000 from the AICTE
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was received by Bharathidasan University wherein it was mentioned that no
admission should be made by the competent authorities in unapproved or
unrecognized professional colleges from the academic year 1994. Some of the
colleges filed writ petitions in the High Court of Judicature at Madras
challenging the letter dated 31.5.2000 being ultravires of the AICTE Act itself.
The High Court passed an interim order dated 20.7.2000 staying the direction of
the AICTE as contained in its letter dated 31.5.2000. During the pendency of
the writ petition, the AICTE amended regulations vide notification dated
16.8.2000. By the said amendment it deleted the earlier amendment of 1997 in
which MCA course was not within the purview of the AICTE Act. Through the
said amendment MCA course was conspicuously added in Rule 8(c) of the
Regulations. By virtue of the said amendment, the AICTE claimed that it has
got powers to check and regulate the MCA course. The High Court of Madras
after hearing some of the appellant colleges quashed the letter dated 31.5.2000
of the AICTE. However, the High Court left it open to the appellant colleges to
challenge the vires of the amended AICTE Regulation vide order dated
22.11.2000.
The appellant colleges preferred writ petitions in the High Court of
Madras challenging the amended Regulation dated 16.8.2000 mainly on the
ground that it is ultra vires to the AICTE Act as the MCA course which are
being run by the appellants colleges do not fall under the definition of technical
education as contained in Section 2(g) of the Act and it was also challenged on
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the ground that since the amended Regulation has not been placed before the
Houses of Parliament for approval they cannot be enforced.
The aforesaid appeals are filed framing certain questions of law which are
mentioned hereunder:-
(a) Whether the colleges affiliated to University are obliged to take
separate permission/approval from the AICTE to run classes in
Technical Courses in which the affiliated university of the
colleges is not required to obtain any permission/approval
under the AICTE Act itself?
(b) Whether the course leading to a degree of Master of Computer
Applications is a technical course within the purview of the
definition of ‘technical education’ as contained in Section 2(g)
of the AICTE Act as it stands today?
(c) Whether the Courts can read something in a Statute, which is
not expressly provided in the language of the Act, and/or insert
words and/or punctuations, which are not there?
(d) Whether the impugned amendment dated 16.8.2000 of the 1994
Regulations would not take effect without the same being
placed before the Parliament?
(e) Whether the Rules or Regulations made under an Act can
override or enlarge the provisions of the Act?
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7. In support of the aforesaid questions of law, the learned senior counsel
and other counsel on behalf of the appellants have urged the following legal
contentions:-
The High Court has erred in holding that even though the University is
not required to take permission of the AICTE to start or run a course of
technical nature, the colleges affiliated to the University/Universities cannot
claim such a right. This interpretation is not the correct legal position for the
reason that when the Universities are exempted from taking
permission/approval from the AICTE, the High Court in view of the law laid
down in Bharathidasan University’s case (supra) could not have held that the
colleges affiliated to their respective universities which are imparting tuition to
the students under them by conducting courses are required to take permission
or approval from the AICTE.
8. It is further contended that the colleges who have opened the courses in
question are affiliated to the universities. They are the controlling authorities
with regard to their intake capacity for each course, the standards to be followed
for each course, the syllabus of the course, the examination process etc. It is
urged that the High Court has failed to consider the relevant aspects of the case
namely that it is the university/universities only which awards/confers degree on
the students studying the course in question in their affiliated colleges. Thus, for
all intents and purposes the courses are being run by the Universities.
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9. It is further urged that if the interpretation given by the High Court with
regard to the provisions of the AICTE Act and Regulations is accepted by this
Court, it will run contrary to the law laid down by this Court in the
Bharathidasan University case (supra). In this decision, this Court clearly
dealt with the scope and purpose of the University for which it has been
established, the relevant para of which reads as under:-
“2. The Bharathidasan University Act, 1981 created the University in
question to provide, among other things, for instruction and training
in such branches of learning as it may determine; to provide for
research and for the advancement and dissemination of knowledge;
to institute degrees, titles, diplomas and other academic distinctions;
to hold examinations and to confer degrees, titles, diplomas and
other academic distinctions on persons who have pursued an
approved course of study in a university college or laboratory or in
an affiliated or approved college and have passed the prescribed
examinations of the University; to confer honorary degrees or other
academic distinction under conditions prescribed; and to institute,
maintain and manage institutes of research, university colleges and
laboratories, libraries, museums and other institutions necessary to
carry out the objects of the University etc. In other words, it is a fullfledged University recognized by the University Grants Commission
also.”
10. The High Court has noticed that the University was created under the
statute “to provide, among other things, for rendering instruction and training to
their students of the affiliated colleges in such branches of learning as it may
determine; to provide for research and for the dissemination of knowledge; to
institute degrees, titles, diplomas and other academic distinctions on persons
who have pursued an approved course of study in a university college or
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laboratory and have passed the prescribed examination of the university” in the
light of the afore-mentioned judgment pronounced by this Court.
11. It is clear from the Bharathidasan University Act that the colleges
affiliated to University impart education in different courses run by University
in which the students have to pass the prescribed examination of the University
for making themselves eligible for degrees. Therefore, the interpretation given
by the High Court in the impugned judgment that the colleges affiliated to the
University which are imparting education to their students on behalf of the
University will have to seek AICTE’s approval for technical courses, though
such approval is not required to be obtained by the affiliated colleges as the
same will be contrary to the judgment of this Court referred to supra.
12. Further, it is contended that the High Court has erred in not appreciating
that the colleges are affiliated to a University, which is their controlling
authority and has been established by an Act of State legislature which has
given it suitable powers to regulate the procedure of the affiliated colleges
regarding their education standards, infrastructure, examinations etc. This can
be noticed by perusing various provisions of Bharathidasan University Act,
1981 and especially Section 8, 33 (xvii) and (xviii), 39 and 63, which read as
under:-
“8. Visitation- The Chancellor shall have the right to cause an
inspection or inquiry to be made, by such person or persons as he
may direct, of the University, its buildings, laboratories, library,
museums, workshops and equipment, and of any institutions
maintained, recognized or approved by, or affiliated to, the
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University, and also of the examinations, teaching and other work
conducted or done by the university and to cause an inquiry to be
made in respect of any matter connected with the University, The
chancellor shall in every case give notice to the University of his
intention to cause such inspection or inquiry to be made and the
university shall be entitled to be represented thereat.
33. Statutes- Subject to the provisions of this Act the statutes may
provide for all or any of the following matters, namely:-
….
(xvii) the conditions of recognition of approved colleges and of
affiliation to the University of affiliated colleges;
(xviii) the manner in which, and the conditions subject to which a
college may be designated as an autonomous college or the
designation of such college may be cancelled and the matters
incidental the administration of autonomous colleges including the
constitution and reconstitution, powers and duties of Standing
Committee on Academic Affairs, Staff Council, Boards of Studies
and Boards of Examiners;
39. Admission to University examinations.- No candidate shall be
admitted to any University examination unless he is enrolled as a
member of a University college or a laboratory or of an affiliated or
approved college and has satisfied the requirements as to the
attendance required under the regulations for the same or unless he is
exempted from such requirements of enrolment or attendance or
both by an order of the Syndicate passed on the recommendation of
the Standing Committee on Academic Affairs made under the
regulations prescribed. Exemptions granted under this section shall
be subject to such condition, as the syndicate may think fit.
63. Report on affiliated colleges- The syndicate shall, at the end of
every three years from the notified date, submit a report to the
Government on the condition of affiliated and approved colleges
within the University area. The Government shall take such action
on it as they deem fit.”
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Therefore, the control upon the affiliated colleges of the University is
vested with the University itself and it cannot be said that for certain type of
courses the control will be with the AICTE. Further, the High Court has failed
to notice the fact that the University to which the member colleges of the
appellants belong is controlled by the University Grants Commission, which is a
Central Governing Body formed under the Act of Parliament known as
University Grants Commission Act of 1956, for controlling the affairs of the
University recognized by it. The Bharathidasan University is recognized by the
UGC. The relevant provisions of this Act which cover the said University and
its colleges are Sections 12, 12A, 13 and 14, which will be extracted in the
relevant paragraphs of this judgment. It is further urged that the aforesaid
provisions would show that the UGC provisions for controlling the University
are applicable and analogous to its affiliated colleges also and therefore to carve
out a distinction between the University and its affiliated colleges and not
treating the affiliated colleges as an integral part of the University in the
impugned judgment by the High Court is not only erroneous in law but also
suffers from error in law.
13. The High Court has failed to take into consideration the relevant legal
aspect of the cases viz. that the AICTE has been given adequate power to
inspect the colleges and University running technical courses, to check the
syllabus, standard of education being imparted in them and their examination
process under Section 10 of the AICTE Act.
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14. Dr. Rajiv Dhavan, learned senior counsel appearing on behalf of the
appellant in CA No.1145 of 2004 submits that the AICTE Act and its
Regulations do not apply to University/Universities or constituent colleges and
its institutions but according to the AICTE the provisions of AICTE Act would
apply to the affiliated colleges of the Universities. He further submits that the
issues in questions in this case are-- notification of 6th February, 2001 about the
governing body of the member colleges of the appellant Association,
notification of 3rd March, 2001 regarding land area and also pointed out the
other notifications issued by the AICTE covering a wide canvas namely
notifications issued on 9.9.2002 in relation to the governing body, staff etc. of
the member colleges of the appellant, notification dated 22.10.2003 regarding
the unaided institutions, notification dated 30.10.2003 regarding salary and
notification dated 28.10.2003 regarding guidelines for common entrance test(s)
for admission to MCA Programmes in the country. In contrast, UGC guidelines
are issued on 20th December, 2003 and 29th December, 2003 whereby
instructions were given not to issue the advertisement for admission and not to
conduct any entrance test for admission to professional programmes until they
receive the policy guidelines of the UGC. He submits that the notifications
issued by the AICTE amount to AICTE having control over the colleges
affiliated by the Universities by displacing UGC norms.
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15. Further, the learned senior counsel places strong reliance on
Bharathidasan University’s case (supra) and contends that the affidavit filed
by the UGC does not raise any issue which has been dealt with by this Court in
the Bharathidasan University’s case. He has placed reliance upon paragraph 8
of the Bharathidasan University’s judgment in support of his submissions,
that though legislative intent finds specific mention in the provisions of the Act
itself, the same cannot be curtailed by conferring undue importance to the object
underlying the Act particularly, when the AICTE Act does not contain any
evidence of an intention to belittle and destroy the authority or autonomy of
other statutory bodies, having their own assigned roles to perform. Further
strong emphasis is placed by him at Paragraph 10 of the Bharathidasan
University’s case (supra) wherein this Court, with reference to the provisions of
AICTE Act held that the Act is not intended to be an authority either superior to
or supervise and control the universities and thereby superimpose itself upon
such universities merely for the reason that it is imparting technical education or
programmes in any of its departments or units. Further, observations are made
after careful scanning of the provisions of the AICTE Act and the provisions of
the UGC Act in juxtaposition, will show that the role of AICTE vis-à-vis the
Universities is only advisory, recommendatory and a guiding factor and thereby
subserves the cause of maintaining appropriate standards and qualitative norms
and not as an authority empowered to issue and enforce any sanctions by itself,
except submitting a report to UGC for appropriate action. Further, he had placed
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reliance on Paragraph 12 of the abovementioned case and contended that the
intention of the Parliament was very clear while enacting the AICTE Act as it
was fully alive of the existence of the provisions of the UGC Act which was in
full force and its effect and which specifically dealt with coordination and
determination of standards at university level of institutions as well as
institutions for higher studies. Further, with reference to definition of “technical
institution” as defined in Section 2(h) of the AICTE Act, the Parliament has
taken special care to make conspicuous and deliberate mention of the
universities to highlight wherever and whenever the AICTE alone was expected
to interact with the university, its departments as well as its constituent
institutions. In this regard, he also placed strong reliance upon Section 12A of
the UGC Act under Chapter III which deals with the powers and functions of
the University Grants Commission. Clause (a) of Section 12A speaks of
affiliation with its grammatical variations and includes in relation to a college,
recognition of such college, Association of such college with admission of such
college to the privileges of a university. Clause (d) speaks of qualification
which means a degree or any other qualification awarded by a University. Also
strong reliance is placed upon sub-section (4) of Section 12A which authorizes
UGC to conduct an inquiry in the manner provided under the Regulations, if the
Commission is satisfied after providing reasonable opportunity to such colleges
that such college contravenes the provisions of sub-section (3) of the above
Section of the Act. In such case, the Commission may, with the previous
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approval of the Central Government pass an order prohibiting such college from
presenting any students then undergoing such course of study therein to any
university for the award of the Degree for the qualification concerned. Subsection (5) of Section 12A further provides for the Commission to forward a
copy of the order made by it under sub-section (4) to the University concerned,
and on and from the date of receipt by the University of a copy of such order,
the affiliation of such college to such University shall, in so far as it relates to
the course of study specified in such order, stand terminated and on and from
the date of termination of such affiliation for a period of three years thereafter
affiliation shall not be granted to such college in relation to such similar course
of study by that or any other University. Sub-Section (6) speaks that in case of
termination of affiliation of any college under sub-section (5), the Commission
shall take all such steps as it may consider appropriate for safeguarding the
interests of the students concerned. Sub-section (7) further states that
regulations made for the purpose of the aforesaid provisions of Section 12A of
the UGC Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
16. Further, reliance has been placed by him upon Section 12B of the UGC
Act which confers power on the Commission to pass an order of prohibition
regarding giving any grant to a University declared by the Commission not fit to
receive such grant. This provision was inserted in the UGC Act through an
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Amendment Act, 1972 (33 of 1972) which came into force on 17.6.1972.
Further, reliance was also placed upon Section 13 regarding the power of
inspection upon the UGC for the purpose of ascertaining the financial needs of
the university or its standards of teaching, examination and research.
17. Dr. Dhavan, learned senior counsel for the appellant placing reliance
upon the aforesaid provisions of the UGC Act, submits that the provisions of the
UGC Act will regulate and control the functions of the university as defined in
terms of Section 2(f) of the UGC Act and also its affiliated colleges. He has
placed reliance upon the observations made by this Court in Para 19 of
Parashavananth Charitable Trust & Ors. v. AICTE2
. In the written
submission submitted by the appellant’s counsel with reference to UGC
affidavit filed in this Court he has placed reliance upon Para 20 of the case
referred to supra wherein it is observed by this Court in the said decision that
the AICTE created under the 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 the
technical education or programmes in any of their departments or units. He
further submitted that a careful scanning of the provisions of the AICTE Act
and the provisions of UGC Act, 1956 in juxtaposition it is observed that the said
provision will show that the role of AICTE with regard to the
university/universities is only advisory, recommendatory and one of providing
2
2013 (3) SCC 385
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guidance, to subserve the cause of maintaining appropriate standards and
qualitative norms and not as an authority empowered to issue and enforce any
sanctions by itself.
18. Further, it is stated with reference to the UGC’s affidavit on the question
of affiliated colleges that it is very mechanical; and is simply gratuitous and
without foundation, it adds affiliated colleges of a university to the definition of
technical institution. Paragraph 23 of its affidavit is without any foundation and
it has stated that the affiliated colleges are distinct and different than the
constituent colleges of the University, therefore, it cannot be said that
constituent colleges also include affiliated colleges. The learned senior counsel
further submitted that the assertion made by the UGC that the UGC Act does
not have any provision to grant approval to technical institution, is facile. It is
stated in its written submission that the AICTE norms will apply through UGC
as observed by this Court in Bharathidasan University and Parshvanath
Charitable Trust cases (supra). A reading of the notifications referred to supra
issued by the AICTE shows that regulation of governing council, infrastructure
such as land and in matters of salary and employment of staff in the affiliated
colleges are totally without jurisdiction and contrary to the decisions of this
Court. Further, strong reliance is placed by learned senior counsel Dr. Dhavan
that issues which are raised in this case are answered in the TMA Pai
Foundation v. State of Karnataka.3
3
(2002) 8 SCC 481
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19. The learned senior counsel submitted that Section 14 of the UGC Act
provides for consequences of failure by Universities to comply with
recommendations of the Commission which provides that if any University
grants affiliation in respect of any course of study to any college referred to in
sub-section (5) of Section 12A in contravention of the provision of that subsection or fails within a reasonable time to comply with any recommendation
made by the Commission under Section 12 or Section 13 or contravenes the
provisions of any rule made under sub-section 2(f) or 2(g) of Section 25, or of
any regulation made under clauses (e), (f) or (g) of Section 26, the Commission
after taking into consideration the cause, if any, shown by the University or
such failure or contravention, may withhold from the University the grants
proposed to be made out of the fund of the Commission. This clearly goes to
show that there is control of the functions of the university by the UGC under
the provisions of UGC Act, Rules and Regulations. Therefore, the learned
senior counsel Dr. Dhavan submits that the role of AICTE under the provisions
of the Act is only advisory and recommendatory in nature and it cannot have
any administrative or any other control upon the colleges which are affiliated to
the universities which fall within the definition of Section 2 (f) of the UGC Act
including the grant of approval for opening of a new course in relation to
technical education including MCA.
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20. Further, after referring to the earlier decisions of this Court, namely,
State of Tamil Nadu v. Adhiyaman Education and Research Institute4
,
Jaya Gokul Educational Trust v. Commissioner and Secretary to
Government High Education Department, Thiruvananthapuram5
and
Parshvanath Charitable Trust (supra), wherein this Court has referred to the
provisions of UGC Act and made certain observations that if there is conflict
between two legislations namely the State Legislation and the Central
Legislation, under clause (2) of Article 254 of the Constitution, the State
Legislation being repugnant to the Central legislation would be inoperative as
the State Law encroaches upon Entry 66 of Union List under which AICTE Act
of 1987 is enacted by the Parliament and the Bharathidasan University Act,
1981 enacted by the State Legislature under Entry 25 of the Concurrent List.
The observations and conclusions arrived at in those cases that the provisions of
AICTE Act must prevail over the State enactments is totally untenable in law.
Learned senior counsel submits that the legislation can be derived from a single
Entry from the List mentioned in VIIth Schedule of the Constitution. For a
single Legislation that is AICTE Act, the Parliament cannot operate under both,
List I as well as List III. He further submits that the phrase “subject to’ used in
Entry 25 of List III of VIIth Schedule limits the power of both the Union as well
as the State. Therefore, reference to Article 254 in those judgments by this
Court in the cases referred to supra are wholly inapplicable to the fact situation
4
(1995) 4 SCC 104
5
(2000) 5 SCC 231
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in this case on the question of repugnancy under Article 254 (2) of the
Constitution as it does not arise for the reason that the law in relation to
establishment of Bharathidasan University and other University in respect of
which member colleges of the appellant Association are affiliated to, is
legislated by the State legislature and the AICTE Act is enacted by the
Parliament under Entry 66 of List I. Therefore, the question of repugnancy
between the two enactments referred to supra do not arise at all since
repugnancy under Article 254(2) of the Constitution would accrue only in
relation to the law legislated by the Parliament and the State legislature from the
entries of the concurrent list of VII schedule.
21. Learned senior counsel Dr. Dhavan has also placed strong reliance upon the
report of Kothari Commission (1964-1966) which shows that the AICTE Act
should be held to cover only non-university education and the said report
emphasizes upon the importance of education and universities and further
emphasizes the importance of autonomy of the university and finances of the
universities and the role of UGC. Further, he placed reliance upon the National
Policy of Education which envisages vesting of statutory authority for planning,
formulation and the maintenance of norms and standards in the education.
Therefore, he submits that the AICTE cannot have any kind of control or
regulation for the functioning of the colleges affiliated to the universities which
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are governed by the provisions of the respective Universities Act and the UGC
Rules and Regulations.
22. Mr. Prashant Bhushan, the learned counsel for the appellants in the
connected appeals contended that in the impugned judgment, the High Court
has erred in holding that the Master of Computer Applications is a technical
education course and is therefore covered by the definition of ‘technical
education’ as defined in Section 2(g) of the AICTE Act, which is extracted in
the relevant portion of the judgment. It is further contended by learned counsel
that the definition of ‘technical education’ in the Act as it stands today is an
exclusive definition and does not cover the courses of Master of Computer
Applications imparted by the colleges run by the appellant colleges. The
Central Government has been given power to include any other area or
course/courses in its purview by issuing an official notification to be published
in the Official Gazette to this effect. Such notification has not been issued so
far by the Central Government. Therefore, he submits that when the MCA
course is not covered within the definition of ‘technical education’ it does not
come under the purview of the AICTE Act at all and the question of the AICTE
exercising its power on the institutions/colleges running MCA course does not
arise.
23. Further, Mr. Prashant Bhushan, the learned counsel has vehemently urged
that the High Court has committed serious error in reading a comma in between
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the words ‘engineering’ and ‘technology’ when it is one word in the statute and
is mentioned as “engineering technology” in the definition of ‘technical
education’ as contained in Section 2(g) of the AICTE Act. The High Court has
committed serious error in giving such an erroneous reading of the aforesaid
provision of Section 2(g) and enlarging the scope of the Act and extending its
sphere to the colleges involved in these proceeding which was not intended by
the Parliament. Therefore, the learned counsel submits that the interpretation
made by the High Court on the phrase ‘engineering technology’ by reading the
words ‘engineering’ and ‘technology’ to bring within the definition of the
“technical education” as defined in Section 2(g) of the AICTE Act, is not only
in contravention of the settled principles of interpretation of statutes but also in
contravention to the settled position of law as laid down by this Court in catena
of cases.
24. It is further contended by the learned counsel that this Court has held in
number of cases that the courts cannot add or delete words or punctuations in a
statute. It is also well settled proposition of law that the court shall gather the
meaning of the statute by its simple and plain reading specially where there is
no ambiguity in the language used in the definition provision and it should be
construed in its literal sense.
25. It is further urged by him that the High Court has failed to take into
consideration that the amendment dated 16.8.2000, i.e. deletion of Regulation
22Page 23
No. 2(2) and addition of 8(c) and 8(iv) of Regulations of 1994 could not take
effect unless the same was placed before the Parliament as required under
Section 24 of the AICTE Act, wherein the amended Regulations have been
framed. The amendments must be laid before both the Houses of the Parliament
which is mandatory as provided under the aforesaid provision of the Act. The
authority which frames Regulations as provided under Section 23 could not be
validly exercised unless such Regulations are laid before both the Houses of the
Parliament at the earliest opportunity. The very amendment dated 16.8.2000 of
Regulations 2(2), 8(c) and 8(iv) has been kept ignoring the mandatory provision
of Section 24 and therefore the impugned amendment to the aforesaid
Regulations has been rendered invalid and void ab initio in law. This aspect of
the matter has not been considered by the High Court while interpreting the said
provisions in holding that as a result of the amendment of the aforesaid
Regulations, the provisions of AICTE Act will be applicable to the courses
which are being conducted by the colleges affiliated to the
University/Universities. This approach of the High Court is erroneous and
therefore the same cannot be allowed to sustain in law.
Further, it is contended by the learned counsel that the High Court has
failed to examine the above said legal aspect of the amendment to the
Regulations of AICTE in the year 2000 enlarging the scope of the Act to areas
for which it is not meant. Such amendment in Regulations will be ultra vires to
the Act itself and cannot be sustained on this count alone. This Court in several
23Page 24
cases has laid down the legal principle that the Rules and Regulations made
under the Act cannot override or enlarge the object or purpose of the Act.
26. The learned counsel further contended that 7 out of 10 colleges of the
appellants herein in the connected appeals were granted approval by the
Bharathidasan University under the Bharathidasan University Act, 1981 before
the amended AICTE Regulations, 1994 came into force and undoubtedly all the
colleges of the appellants herein got approval from the above said University
and started running MCA course much before the amended Regulations of 2000
came into force. Therefore, the said regulations cannot be applied to the
appellants’ colleges. Further, the provision of Section 10 (k) of the AICTE
Act, which deals with power and functions of the Council, clearly states that the
council may “grant approval for starting new technical institutions and for
introduction of new courses or programmes in consultation with the agencies
concerned”.
27. The learned counsel further contends that the Bharathidasan University is
regulated and controlled by the UGC constituted under the provisions of the
UGC Act, Rules and Regulations. The relevant provisions of the UGC Act
cover the institutions and its constituents colleges as well as its affiliated
colleges which are being run by the appellants herein and similarly placed
colleges under Section 12, 12A, 13 and 14 of the UGC Act.
24Page 25
The aforesaid provisions of UGC Act would show that those provisions
would speak of Regulations of the university that is applicable and analogous to
its affiliated colleges also.
28. Further, the learned counsel placing strong reliance upon the law laid
down in the judgment of this Court in Bharathidasan University case (supra)
wherein this Court has specifically held after referring to certain provisions of
the AICTE Act and earlier judgments of this Court in Adhiyaman Education
and Research Institute (supra) and Jaya Gokul Educational Trust (supra)
that the AICTE is not intended to be controlling or supervising authority over
the University merely because the University is also imparting courses of
“Technical Education”. Further, it was held that Regulation No.4 insofar as it
compels the university to seek for and obtain prior approval and not start any
new department or course or programme in Technical Education and empower
itself to withdraw such approval, in a given case of contravention of the
Regulation No.12, is directly opposed to and inconsistent with the provisions of
Section 10 (k) of the AICTE Act and consequently void and unenforceable in
law.
Placing strong reliance on the observations made in para 14 of said
judgment and after referring to the Regulations, this Court held that the AICTE
could not have been made to bind universities/UGC within the confines of the
powers conferred upon it. It cannot be enforced against or to bind a university
25Page 26
as a matter of any necessity to seek prior approval to commence a new
department or course and programme in technical education in any university or
any of its departments and constituent institutions. The said observation also
applies in the present case that the Regulations have no application to the MCA
course which is being run by the colleges of the appellants herein.
29. It is further contended by the learned counsel that Bharathidasan
University which was incorporated under the provisions of UGC Act, 1956 is a
controlling authority of its affiliated colleges for all its courses including MCA
course. The University confers degrees on the students studying in its affiliated
colleges. Thus, for all intents and purposes, the courses are run by the
University. In fact in Bharathidasan University’s case (supra) at paragraph 2,
this Court has dealt with the scope and purpose of the University. It says that
the University has been created “to provide among other things, instruction and
training in such branches of learning as it may determine; to provide for
research and for the dissemination of knowledge; to confer degrees, titles,
diplomas and other academic distinctions on persons who have pursued an
approved course of study in a university college or laboratory or in an affiliated
or approved college and have passed the prescribed examination of the
University”. Thus, it is clear that the colleges are affiliated to the university to
impart education in different courses run by the university in which the students
have to pass the prescribed examination of the University for making
26Page 27
themselves eligible to obtain degrees. Therefore, any provision or direction
requiring the colleges affiliated to university or imparting education to the
students on behalf of the university to seek AICTE’s approval for conducting
MCA course when no such approval is required for the university for the
aforesaid purpose will be contrary to the judgment rendered in Bharathidasan
University’s case (supra).
30. Learned counsel placed strong reliance upon the counter affidavit filed by
the AICTE on 16.1.2013 in Civil Appeal No.1145 of 2004. Subsequent to the
filing of the present appeal in 2004, the AICTE framed new Regulations in 2005
and 2006 which provide that “technical institution” means institution
conducting the course, inter alia, in the field of technical education, training and
research in engineering, technology including MCA. The Regulations of 2005
and 2006 further provide that not only new technical institutions but even
existing technical institution cannot conduct any technical course without prior
approval of the AICTE. The learned counsel submitted that it is more than
apparent that the said Regulations have been specifically framed to counter the
challenges posed by the appellant institutions to their authorities and power to
regulate the course of MCA. Also after taking clues from the impugned
judgment in Bharathidasan University’s case they had taken care that there is
comma in between ‘engineering’ and ‘technology’ in the definition of
“technical institution”. Therefore, it is submitted that the said Regulation which
27Page 28
has not only come into force much after the introduction of MCA course in the
appellant colleges but also after the impugned judgment in this appeal and after
filing of the appeals, cannot be made applicable to the colleges of the appellant
herein who are running MCA course since this will result in giving the amended
Regulations retrospective effect as the Regulations do not provide for it.
31. On the other hand, Mr. Rakesh Dwivedi, learned senior counsel
appearing on behalf of respondent AICTE, sought to justify the impugned
judgment in these appeals by placing strong reliance upon the dictionary
meaning of the expression “engineering” and “technology” from the following
dictionaries, namely Webster’s Comprehensive Dictionary, Wharton’s Law
Lexicon, Encyclopedic Law Lexicon, The New Shorter Oxford English
Dictionary, Advanced Law Lexicon, P Ramanatha Aiyar’s the Law Lexicon and
Stroud’s Judicial Dictionary of Words and Phrases. After a careful reading of
the meanings of ‘technical engineering’ which speaks of the art or source of
making practical applications of the knowledge of pure science as physics,
chemistry, etc. as in the construction of engines, bridges, buildings, mines,
chemical plants and the like, he submits that the expression ‘technology’ by
itself is very wide and also comprehends ‘engineering’. The Institutes of
Technology Act, 1961 envisages imparting of education in technology and
Section 6(1) of the Act empowers it to provide instruction and research in such
branches of engineering and technology, science and arts as the institute may
28Page 29
think fit. Further, the National Institute of Technology Act, 2007 envisages
certain institutions of national importance to provide for instructions and
research in branches of engineering, technology, management, education,
sciences and arts. He further contends that though one does not find a comma,
between ‘engineering’ and ‘technology’ in Section 2(g) of the AICTE Act, the
composition of the council envisaged by Section 3(4)(f)(iii) and (iv) and Section
13(1)(iii) and (iv) in relation to establishment of Board of Studies would clearly
go to show that engineering and technology are two separate branches of study.
Even if, ‘engineering technology’ is considered to be a single expression that
will not reduce the width and scope of the subject, it will nevertheless indicate
both the branches of study of engineering and technology and will cover both
the subjects. Therefore, the existence or absence of comma between the two
words is of no significance and the crucial issue is delineation of the scope of
‘engineering technology’. Existence and absence of comma and its scope
should be determined with reference to the entire object and purpose of the Act
that is, the proper planning and coordinated development of the “technical
education” system throughout the country. Therefore, the regulation and proper
maintenance of norms and standards in the “technical education” system in the
Preamble of AICTE Act is very important.
32. Further, strong reliance was placed by the learned senior counsel for the
respondent upon Parshvanath Charitable Trust case (supra) wherein the
29Page 30
course content of the three years MCA course with six semesters would clearly
go to show that the course undertaken by the colleges affiliated to the
Universities in the cases is very wide and covers the fundamentals of computer
engineering including software engineering as well as the technology of
computer system. Section 2(g) of the AICTE Act reads as under:-
“Technical Education” means programmes of education, research
and training in engineering technology, architecture, town planning,
management, pharmacy and applied arts and crafts and such other
programme or areas as the Central Government may, in consultation
with the Council, by notification in the Official Gazette, declare;”
The expression “Engineering Technology” in Section 2(g) of AICTE Act
would clearly comprehend within its scope, the MCA course offered by the
appellant colleges. The contention on behalf of the appellants herein is that the
colleges affiliated to the universities are outside the scope and purview of the
AICTE Act in relation to obtaining approval from the AICTE for establishing
technical institution or introducing new course or programme as required under
Section 10(k) read with Section 2(h) of the Act. Since the definition of
“technical institution” makes no mention of colleges providing technical
education which are affiliated to the universities thereby expressly excluding
such colleges from the definition of “technical institution” under the AICTE Act
as they are covered under the affiliated colleges of the universities, the
contention made above is not tenable in law. Also, the said definition, based on
the judgment of this Court in Bharathidasan University’s case referred to
30Page 31
supra and reliance placed upon Kothari Commission Report by the learned
senior counsel on behalf of the appellant member colleges, is wholly untenable
in law for the reasons mentioned in the said case. In the earlier judgments of
this Court, namely, Adhiyaman Education and Research Institute (supra)
and Jaya Gokul Educational Trust (supra) referred to in Paragraph 11 of the
Bharathidasan University case, the powers of AICTE under the AICTE Act
and Regulations framed thereunder, are lucidly explained and it is held that the
provisions of the UGC Act enacted by the Parliament are also applicable to the
university under State enactments in so far as technical education is concerned.
Learned senior counsel submits that in Bharathidasan University’s case the
earlier judgments in Adhiyaman Education and Research Institute and Jaya
Gokul Educational Trust were noted but their correctness was not considered.
Also, the Bharathidasan University case did not make any observation about
their actual accuracy and in the said case this Court did not go into the question
as to whether the AICTE Act would prevail over the UGC Act or the effect of
competing entries in the three lists of VII Schedule of the Constitution. On the
other hand, a bare perusal of Adhiyaman Education and Research Institute
and Jaya Gokul Educational Trust cases would clearly show that this Court
was considering the applicability of AICTE Act to the engineering colleges
affiliated to universities and whose courses included programmes of
Engineering and Computer Sciences. Also, in both the cases, the two Judge
Bench examined the competing entries in the List 1 and List III in the VIIth
31Page 32
Schedule of the Constitution and held that the State enactment-UGC Act would
not prevail over the AICTE Act and rather to the extent of repugnancy the
enactment of the UGC Act would be impliedly repealed. It was held in those
cases that power of universities to affiliate such colleges would depend on
compliance of norms and standards fixed by the AICTE and the approval
granted by the AICTE and also that if AICTE grants approval to such colleges
then they need not obtain the approval of the State Government and the
universities should not insist upon obtaining the approvals from the State
Government. Heavy reliance has been placed on the two judgments of this
Court in Adhiyaman Education and Research Institute case (supra) and Jaya
Gokul Education Trust case (supra).
The relevant portions of the Adhiyaman Education and Research
Institute case are extracted hereunder:
“12. The subject “coordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions” has always remained the special preserve of
Parliament. This was so even before the Forty-second Amendment,
since Entry 11 of List II even then was subject, among others, to
Entry 66 of List I. After the said Amendment, the constitutional
position on that score has not undergone any change. All that has
happened is that Entry 11 was taken out from List II and
amalgamated with Entry 25 of List III. However, even the new Entry
25 of List III is also subject to the provisions, among others, of Entry
66 of List I. It cannot, therefore, be doubted nor is it contended
before us, that the legislation with regard to coordination and
determination of standards in institutions for higher education or
research and scientific and technical institutions has always been the
preserve of Parliament. What was contended before us on behalf of
the State was that Entry 66 enables Parliament to lay down the
minimum standards but does not deprive the State legislature from
32Page 33
laying down standards above the said minimum standards. We will
deal with this argument at its proper place.
27. The provisions of the State Act enumerated above show that if it
is made applicable to the technical institutions, it will overlap and
will be in conflict with the provisions of the Central Act in various
areas and, in particular, in the matter of allocation and disbursal of
grants, formulation of schemes for initial and in-service training of
teachers and continuing education of teachers, laying down norms
and standards for courses, physical and institutional facilities, staff
pattern, staff qualifications, quality instruction assessment and
examinations, fixing norms and guidelines for charging tuition and
other fees, granting approval for starting new technical institutions
and for introduction of new courses or programmes, taking steps to
prevent commercialisation of technical education, inspection of
technical institutions, withholding or discontinuing grants in respect
of courses and taking such other steps as may be necessary for
ensuring compliance of the directions of the Council, declaring
technical institutions at various levels and types fit to receive grants,
the constitution of the Council and its Executive Committee and the
Regional Committees to carry out the functions under the Central
Act, the compliance by the Council of the directions issued by the
Central Government on questions of policy etc. which matters are
covered by the Central Act. What is further, the primary object of
the Central Act, as discussed earlier, is to provide for the
establishment of an All India Council for Technical Education with a
view, among others, to plan and coordinate the development of
technical education system throughout the country and to promote
the qualitative improvement of such education and to regulate and
properly maintain the norms and standards in the technical education
system which is a subject within the exclusive legislative field of the
Central Government as is clear from Entry 66 of the Union List in
the Seventh Schedule. All the other provisions of the Act have been
made in furtherance of the said objectives. They can also be deemed
to have been enacted under Entry 25 of List III. This being so, the
provisions of the State Act which impinge upon the provisions of the
Central Act are void and, therefore, unenforceable. It is for these
reasons that the appointment of the High Power Committee by the
State Government to inspect the respondent-Trust was void as has
been rightly held by the High Court.
41. What emerges from the above discussion is as follows:
33Page 34
(i) The expression ‘coordination’ used in Entry 66 of the Union List
of the Seventh Schedule to the Constitution does not merely mean
evaluation. It means harmonisation with a view to forge a uniform
pattern for a concerted action according to a certain design, scheme
or plan of development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing the
occurrence of such disparities. It would, therefore, also include
power to do all things which are necessary to prevent what would
make ‘coordination’ either impossible or difficult. This power is
absolute and unconditional and in the absence of any valid
compelling reasons, it must be given its full effect according to its
plain and express intention.
(ii) To the extent that the State legislation is in conflict with the
Central legislation though the former is purported to have been made
under Entry 25 of the Concurrent List but in effect encroaches upon
legislation including subordinate legislation made by the Centre
under Entry 25 of the Concurrent List or to give effect to Entry 66 of
the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the
State legislation is saved by the provisions of the main part of clause
(2) of Article 254, the State legislation being repugnant to the
Central legislation, the same would be inoperative.
(iv)Whether the State law encroaches upon Entry 66 of the Union
List or is repugnant to the law made by the Centre under Entry 25 of
the Concurrent List, will have to be determined by the examination
of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available
situations/seats, the State authority is not prevented from laying
down higher standards or qualifications than those laid down by the
Centre or the Central authority to short-list the applicants. When the
State authority does so, it does not encroach upon Entry 66 of the
Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State
authorities deny an applicant the same on the ground that the
applicant is not qualified according to its standards or qualifications,
as the case may be, although the applicant satisfies the standards or
qualifications laid down by the Central law, they act
unconstitutionally. So also when the State authorities de-recognise or
34Page 35
disaffiliate an institution for not satisfying the standards or
requirement laid down by them, although it satisfied the norms and
requirements laid down by the Central authority, the State authorities
act illegally.”
Also, the relevant paragraphs of the Jaya Gokul Education Trust case
are extracted hereunder:
“16. …… It was held that the AICTE Act was referable to Entry 66
List I of the Constitution of India, relating to “coordination and
determination of standards in institutions for higher education or
research and scientific and technical institutions”. After the
constitutional amendment (Forty-second Amendment Act, 1976)
Entry 25 of List III in the Concurrent List read:
“Education, included technical education, medical education and
universities, subject to the provisions of Entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour.”
Thus, the State law under Entry 23 of List III would be repugnant to
any law made by Parliament under Entry 66 of List I, to the extent of
inconsistency. The Tamil Nadu Act was of 1976 and the University
Act was of 1923 and were laws referable to List III. Whether they
were pre-constitutional or post-constitutional laws, they would be
repugnant to the AICTE Act passed by Parliament under Entry 66 of
List I. In the above case this Court referred to the various provisions
of the AICTE Act and on the question of repugnancy held (see SCC
p. 120) as follows: (SCC para 22)
“Hence, on the subjects covered by this statute, the State could not
make a law under Entry 11 of List II prior to Forty-second
Amendment nor can it make a law under Entry 25 of List III after
the Forty-second Amendment. If there was any such existing law
immediately before the commencement of the Constitution within
the meaning of Article 372 of the Constitution, as the Madras
University Act, 1923, on the enactment of the present Central Act,
the provisions of the said law if repugnant to the provisions of the
Central Act would stand impliedly repealed to the extent of
repugnancy. Such repugnancy would have to be adjudged on the
35Page 36
basis of the tests which are applied for adjudging repugnancy under
Article 254 of the Constitution.”
17. …….It was held (see SCC p. 126) that Section 10 of the Central
Act dealt with various matters (including granting approval for
starting new technical institutions), and that so far as these matters
were concerned
“it is not the University Act and the University but it is the Central
Act and the Council created under it which will have the jurisdiction.
To that extent, after the coming into operation of the Central Act, the
provisions of the University Act will be deemed to have become
unenforceable”. (SCC pp. 126-27, para 30)
Thus, in the two passages set out above, this Court clearly held that
because of Section 10(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.
19. …… In our opinion, even if there was a State law in the State of
Kerala which required the approval of the State Government for
establishing technical institutions, such a law would have been
repugnant to the AICTE Act and void to that extent, as held in T.N.
case.
22. ….. 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
36Page 37
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.
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.”
33. The learned senior counsel further submits that the question of law which
was being considered was whether the universities created in the Bharathidasan
University Act, 1981 should seek prior approval of the AICTE to start a
department or imparting a course or a programme in technical education or
technical institution as an adjunct to the university itself to conduct technical
courses of its choice. In that case, this Court was not concerned with the
question of starting of a college/technical institution by private persons which
were merely affiliated to the university for the purposes of pursuing courses of
study and participating in examinations for degree/diploma.
34. By perusal of the observations made in Bharathidasan University’s case
supra upon which strong reliance was placed by the learned senior counsel for
the appellant, would show that this Court referred to Section 2(h) of the AICTE
Act where the definition of ‘technical institution’ excludes university from its
scope. In the said judgment, this court has observed that the AICTE Act
37Page 38
maintains a complete dichotomy between a ‘University’ and a ‘Technical
Institution’. It was further submitted that the expression ‘constituent
institutions’ as used in paragraphs 12 and 15 of the Bharathidasan
University’s judgment refers to technical institutions which are started by the
university itself or as an adjunct to the university or affiliated colleges or are not
started, managed and governed by the university itself, whereas constituent
institutions are started, managed and governed by the university itself under
powers given by the university enactment. In view of the aforesaid factual
position he submits that issues in relation to coverage of affiliated colleges
imparting technical education under Section 10(k) of AICTE Act stand decided
and concluded by the judgments in Adhiyaman Education and Research
Institute and Jaya Gokul Educational Trust cases whereas the
Bharathidasan University’s case deals with the department and constituent
institutions and units of the university itself. It was further submitted that the
contention of the appellant colleges that they do not require prior approval from
the AICTE since they are not covered by Section 10(k) read with Section 2(g) &
(h) of the Act, is not tenable in law. This Court took care to make observations
that universities have to maintain the norms and standards fixed by the AICTE,
even though they do not need prior approval for starting a department or
constituent institutions and units. Further, strong reliance was placed by the
learned senior counsel upon the provisions of Sections 10, 11 and 22 of the
AICTE Act. A careful analysis of the said provision would go to show the role
38Page 39
of inspection conferred upon the AICTE vis-à-vis Universities which is limited
to the purpose of ensuring the proper maintenance of norms and standards in the
technical education system in the country so as to conform to the standards laid
down by it. Therefore, learned senior counsel for the respondent AICTE
submits that the contention urged by Dr. Dhavan, with respect to the member
colleges of the appellant and learned counsel Mr.Prashant Bhushan in connected
appeals that the AICTE, except bringing to the notice of UGC regarding
standards to be maintained by the colleges affiliated to the universities in
relation to technical education, has no role to play or it has no power to regulate
or control such colleges, is wholly untenable in law and therefore the
submissions made in this regard cannot be accepted.
35. On the basis of the factual and rival legal contentions urged on behalf of
the parties the following points would arise for consideration of this Court in
these civil appeals:--
(1)Whether the colleges affiliated to a university comes within the
purview of exclusion of the definition of “Technical Institution” as
defined under Section 2(h) of the AICTE Act, 1987?
(2)Whether the AICTE has got the control and supervision upon the
affiliated colleges of the respective universities of the member
colleges of the appellant in C.A.No.1145/2004 and the appellants in
connected appeals?
39Page 40
(3)Whether the MCA course be construed as technical education in terms
of definition under section 2(g) of the AICTE Act?
(4)Whether the Regulation 8(c) and 8(iv) by way of amendment in the
year 2000 inserting the words ‘MBA and MCA’ before Architecture
and Hotel Management courses is applicable to the concerned colleges
of the appellants?
(5)Whether non placement of the amended Regulations before Houses of
the Parliament as required under Section 24 of the AICTE Act is
vitiated in law?
(6)Whether the law laid down by this Court in Bharathidasan
University’s case, Adhiyaman Education and Research Institute
case and Jaya Gokul Educational Trust case is applicable to the fact
situation of the concerned colleges of the appellants?
Answer to the points framed above
36. Point Nos. 1 and 2 are answered in favour of the appellants by assigning
the following reasons:-
For this purpose, it would be very much necessary to extract the
definition of ‘technical institution’, ‘university’ and ‘technical education’ in
Sections 2(h), 2(i) and 2(g) respectively read with Section 10(k) of the AICTE
40Page 41
Act and also the definition of 2(f) of the UGC Act read with Sections 12, 12A,
12B, 12(2) (c) of the UGC Act.
Section 2 (f), (g), (h) and (i) of the AICTE Act read as:
“2. Definitions.
……..
(f) “Regulations” means regulations made under this Act.
(g) “Technical education” means programmes of education,
research and training in engineering technology, architecture, town
planning, management, pharmacy and applied arts and crafts and
such other programme or areas as the Central Government may, in
consultation with the Council, by notification in the Official
Gazette, declare;
(h) “Technical institution” means an institution, not being a
university which offers courses or programmes of technical
education, and shall include such other institutions as the Central
Government may, in consultation with the Council, by notification
in the Official Gazette, declare as technical institutions:
(i) “University” means a University defined under clause (f) of
Section 2 of the University Grants Commission Act, 1956 (3 of
1956) and includes an institution deemed to be a University under
section 3 of that Act.
10. Functions of the Council.- It shall be the duty of the Council to
take all such steps as it may think fit for ensuring coordinated and
integrated development of technical education and management and
maintenance of standards and for the purposes of performing its
functions under this Act, the Council may-
……
(k) grant approval for starting new technical institutions and for
introduction of new courses or programmes in consultation with the
agencies concerned:”
Further, the relevant sections of University Grants Commission Act,
1956 read as under:
41Page 42
“2.Definitions.
……..
(f) “University” means a University established or incorporated by
or under a Central Act, a Provincial Act or a State Act, and includes
any such institution as may, in consultation with the University
concerned, be recognized by the Commission in accordance with the
regulations made in this behalf under this Act.
12. Functions of the Commission- It shall be the general duty of the
Commission to take, in consultation with the Universities or other
bodies concerned, all such steps as it may think fit for the promotion
and co-ordination of University education and for the determination
and maintenance of standards of teaching, examination and research
in Universities, and for the purpose of performing its functions under
this Act, the Commission may-
(a) inquire into the financial needs of Universities;
(b) allocate and disburse, out of the Fund of the Commission,
grants to Universities established or incorporated by or under a
Central Act for the maintenance and development of such Universities or for any other general or specified purpose:
(c) allocate and disburse, out of the Fund of the Commission, such
grants to other Universities as it may deem 1[necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such
Universities] or for any other general or specified purpose: Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the
University concerned, its financial needs, the standard attained by
it and the national purposes which it may serve, 2[(cc) allocate and
disburse out of the Fund of the Commission, such grants to institution deemed to be Universities in pursuance of a declaration made
by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely:-
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose;]
42Page 43
1[“(ccc) establish, in accordance with the regulations made under
this Act, institutions for providing common facilities, services and
programmes for a group of universities or for the universities in
general and maintain such institutions or provide
for their maintenance by allocating and, disbursing out of the Fund
of the Commission such grants as the Commission may deem necessary”.]
(d) recommend to any University the measures necessary for the
improvement of University education and advise the University
upon the action to be taken for the purpose of implementing such
recommendation;
(e) advise the Central Government or any State Government on the
allocation of any grants to Universities for any general or specified
purpose out of the Consolidated Fund of India or the
Consolidated Fund of the State, as the case may be;
(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the
expansion of the activities of any University;
(g) advise the Central Government or any State Government or
University on any question which may be referred to the Commission by the Central Government or the State Government or the
University, as the case may be;
(h) collect information on all such matters relating to University
education in India and other countries as it thinks fit and make the
same available to any University;
(i) require a University to furnish it with such information as may
be needed relating to the financial position of the University or the
studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the
standards of teaching and examination in that University respecting
each of such branches of learning;
(j) perform such other functions as may be prescribed or as may be
deemed necessary by the Commission for advancing the cause of
higher education in India or as may be incidental or conducive to
the discharge of the above functions.
43Page 44
12A. Regulation of fees and prohibition of donations in certain
cases-
(1)In this section-
(a) “affiliation”, together with its grammatical variation, includes,
in relation to a college, recognition of such college by, association of such college with, and admission of such college to the
privileges of, a university;
(b) “college” means any institution, whether known as such or by
any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance
with the rules and regulations of such university, is recognized
as competent to provide for such course of study and present
students undergoing such course of study for the examination
for the award of such qualification.
(c) “prosecution” in relation to a course of study, includes promotion from one part or stage of the course of study to another part
or stage of the course of study.
(d) “qualification” means a degree or any other qualification
awarded by a university.
(e) “regulations” means regulations made under this Act.
(f) “specified course of study” means a course of study in respect
of which regulation of the nature mentioned in sub-section (2)
have been made.
(g) “student” includes a person seeking admission as a student;
(h) “university” means a university or institution referred to in subsection (1) of Section 22.
(2)Without prejudice to the generality of the provisions of section 12
if, having regard to-
…….
(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no
candidate secures admission to such course of study by reason of
44Page 45
economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and
(d) all other relevant factors, the commission is satisfied that it is
necessary so to do in the public interest, it may, after consultation
with the university or universities concerned, specify by regulations
the matters in respect of which fees may be charged and the scale
of fees in accordance with which fees shall be charged in respect of
those matters on and from such date as may be specified in the regulation in this behalf, by any college providing for such course of
study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study;……..
13. Inspection.- (1) For the purpose of ascertaining the financial
needs of a University or its standards of teaching, examination and
research, the Commission may, after consultation with the University, cause an inspection of any department or departments thereof
to be made in such manner as may be prescribed and by such person or persons as it may direct.
(2) The Commission shall communicate to the University the date
on which any inspection under sub-section (1) is to be made and
the University shall be entitled to be associated with the inspection
in such manner as may be prescribed.
(3) The Commission shall communicate to the University its views
in regard to the results of any such inspection and may, after ascertaining the opinion of the University, recommend to the University the action to be taken as a result of such inspection.
(4)All communications to a University under this section shall be
made to the executive authority thereof and the executive authority of the University shall report to the Commission the action, if any, which is proposed to be taken for the purpose of implementing any such recommendation as is referred to in subsection (3).
14. Consequences of failure of Universities to comply with recommendations of the Commission- If any University [grants affiliation in respect of any course of study to any college referred to
in sub-section (5) of section 12-A in contravention of the provisions of that sub-section or] fails within a reasonable time to com-
45Page 46
ply with any recommendation made by the Commission under section 12 or section 13 [or contravenes the provisions of any rule
made under clause (f) or clause (g) of sub-section (2) of section 25,
or of any regulation made under clause (e) or clause (f) or clause
(g) of section 26,] the Commission, after taking into consideration
the cause, if any, shown by the university [for Such failure or contraventions] may withhold from the University the grants proposed
to be made out of the Fund of the Commission.”
37. In Bharathidasan University’s case, the question which fell for
consideration is referred to in the first paragraph of the judgment upon which
strong reliance is placed by the learned senior counsel for the respondent Mr.
Rakesh Dwivedi to substantiate his submission that the ratio laid down in
Bharathidasan University’s case (supra) is in relation to the question raised
regarding the university created under the Bharathidasan Universities Act to
start a department for imparting a course or programme in technical education
or a technical institution as an adjunct to the university itself for conducting
technical courses of its choice and selection. Therefore, the ratio laid down in
the said case has no application to the fact situation of these education
institutions/colleges which are run by the appellants herein though they are
affiliated to their respective universities. Therefore, he placed strong reliance
upon the ratio laid down by this Court in Adhiyaman Education and Research
Institute and Jaya Gokul Educational Trust’s cases wherein this Court has
clearly enunciated the law after elaborately adverting to the legislative entries in
List I Entry 66 and List III Entry 25 regarding the respective legislative
competence of the Parliament and the State Legislature. To substantiate his
46Page 47
contention, he claimed that the AICTE Act is enacted by the Parliament under
Entry 66 of List I and the Universities are established under the provisions of
Bharathidasan University Act which was enacted by the State Legislature from
Entry 25 of List III. The Bharathidasan University Act, fell for consideration of
this Court in the above said judgments. Therefore, in those cases this Court had
clearly held that the AICTE Act is relatable to Entry 66 and must prevail over
the State Enactments covered in those cases. Therefore, the said decisions are
applicable to the fact situation of this case. This contention is rightly rebutted by
the learned senior counsel Dr. Rajiv Dhavan and Mr. Prashant Bhushan, the
learned counsel appearing on behalf of the appellants in both set of appeals
inviting our attention to the various provisions of the AICTE Act and UGC Act
with reference to the principles laid down in Bharathidasan University’s case.
Also, the relevant paragraphs from the decision rendered in T.M.A. Pai
Foundation (supra) will be referred to in this judgment. With reference to the
above said rival legal contentions, it will be worthwhile to refer to the principle
laid down in Bharathidasan University and Parashavananth Charitable
Trust cases (supra). The relevant paragraphs of Bharathidasan University
case (supra) read as under:
“8. We have bestowed our thoughtful consideration to the
submissions made on either side. When the legislative intent finds
specific mention and expression in the provisions of the Act itself,
the same cannot be whittled down or curtailed and rendered
nugatory by giving undue importance to the so-called object
underlying the Act or the purpose of creation of a body to supervise
the implementation of the provisions of the Act, particularly when
47Page 48
the AICTE Act does not contain any evidence of an intention to
belittle and destroy the authority or autonomy of other statutory
bodies, having their own assigned roles to perform. Merely activated
by some assumed objects or desirabilities, the courts cannot adorn
the mantle of the legislature. It is hard to ignore the legislative intent
to give definite meaning to words employed in the Act and adopt an
interpretation which would tend to do violence to the express
language as well as the plain meaning and patent aim and object
underlying the various other provisions of the Act. Even in
endeavouring to maintain the object and spirit of the law to achieve
the goal fixed by the legislature, the courts must go by the guidance
of the words used and not on certain preconceived notions of
ideological structure and scheme underlying the law. In the
Statement of Objects and Reasons for the AICTE Act, it is
specifically stated that AICTE was originally set up by a government
resolution as a national expert body to advise the Central and State
Governments for ensuring the coordinated development of technical
education in accordance with approved standards was playing an
effective role, but, “[h]owever, in recent years, a large number of
private engineering colleges and polytechnics have come up in
complete disregard of the guidelines, laid down by the AICTE” and
taking into account the serious deficiencies of even rudimentary
infrastructure necessary for imparting proper education and training
and the need to maintain educational standards and curtail the
growing erosion of standards statutory authority was meant to be
conferred upon AICTE to play its role more effectively by enacting
the AICTE Act.
9. Section 2(h) defines “technical institution” for the purposes of the
Act, as follows:
“2. (h) ‘technical institution’ means an institution, not being a
university, which offers courses or programmes of technical
education, and shall include such other institutions as the Central
Government may, in consultation with the Council, by notification in
the Official Gazette, declare as technical institutions;”
10. Since it is intended to be other than a university, the Act defines
in Section 2(i) “university” to mean a university defined under
clause (f) of Section 2 of the University Grants Commission Act,
1956 and also to be inclusive of an institution deemed to be a
university under Section 3 of the said Act. Section 10 of the Act
enumerates the various powers and functions of AICTE as also its
48Page 49
duties and obligations to take steps towards fulfilment of the same.
One such as envisaged in Section 10(1)(k) is to “grant approval for
starting new technical institutions and for introduction of new
courses or programmes in consultation with the agencies
concerned”. Section 23, which empowers the Council to make
regulations in the manner ordained therein emphatically and
specifically, mandates the making of such Regulations only “not
inconsistent with the provisions of this Act and the Rules”. The Act,
for all purposes and throughout maintains the distinct identity and
existence of “technical institutions” and “universities” and it is in
keeping tune with the said dichotomy that wherever the university or
the activities of the university are also to be supervised or regulated
and guided by AICTE, specific mention has been made of the
university alongside the technical institutions and wherever the
university is to be left out and not to be roped in merely refers to the
technical institution only in Sections 10, 11 and 22(2)(b). It is
necessary and would be useful to advert to Sections 10(1)(c), (g), (o)
which would go to show that universities are mentioned alongside
the “technical institutions” and clauses (k), (m), (p), (q), (s) and (u)
wherein there is conspicuous omission of reference to universities,
reference being made to technical institutions alone. It is equally
important to see that when 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, when it comes to the
question of universities it is confined and limited to ascertaining the
financial needs or its standards of teaching, examination and
research. The inspection may be made or cause to be made of any
department or departments only and that too, in such manner as may
be prescribed as envisaged in Section 11 of the Act. Clause (t) of
sub-section (1) of Section 10 envisages AICTE to only advise UGC
for declaring any institution imparting technical education as a
deemed university and not do any such thing by itself. Likewise,
clause (u) of the same provision which envisages the setting up of a
National Board of Accreditation to periodically conduct evaluation
of technical institutions or programmes on the basis of guidelines,
norms and standards specified by it to make recommendation to it,
or to the Council, or to the Commission or to other bodies, regarding
recognition or derecognition of the institution or the programme. All
these vitally important aspects go to show that AICTE created under
the Act is not intended to be an authority either superior to or
supervise and control the universities and thereby superimpose itself
upon such universities merely for the reason that it is imparting
teaching in technical education or programmes in any of its
49Page 50
departments or units. A careful scanning-through of the provisions
of the AICTE Act and the provisions of the UGC Act in
juxtaposition, will show that the role of AICTE vis-à-vis the
universities is only advisory, recommendatory and a guiding factor
and thereby subserves the cause of maintaining appropriate
standards and qualitative norms and not as an authority empowered
to issue and enforce any sanctions by itself, except submitting a
report to UGC for appropriate action. The conscious and deliberate
omission to enact any such provision in the AICTE Act in respect of
universities is not only a positive indicator but should be also one of
the determining factors in adjudging the status, role and activities of
AICTE vis-à-vis universities and the activities and functioning of its
departments and units. All these vitally important facets with so
much glaring significance of the scheme underlying the Act and the
language of the various provisions seem to have escaped the notice
of the learned Judges, their otherwise well-merited attention and
consideration in their proper and correct perspective. The ultraactivist view articulated in M. Sambasiva Rao case on the basis of
supposed intention and imagined purpose of AICTE or the Act
constituting it, is uncalled for and ought to have been avoided, all the
more so when such an interpretation is not only bound to do violence
to the language of the various provisions but also inevitably render
other statutory authorities like UGC and universities irrelevant or
even as non-entities by making AICTE a superpower with a
devastating role undermining the status, authority and autonomous
functioning of those institutions in areas and spheres assigned to
them under the respective legislations constituting and governing
them.”
38. Paragraphs 19 and 20 of Parashavananth Charitable Trust’s case
(supra) read as hereunder:
“19. Section 10 of the AICTE Act enumerates various powers and
functions of AICTE as also its duties and obligations to take steps
towards fulfillment 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
50Page 51
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 a manner as may be
prescribed, as envisaged in Section 11 of the AICTE Act.
20. All these vitally important aspects go to show that the Council
(AICTE) created under the AICTE Act is not intended to be an
authority either superior to or to supervise and control the
universities and thereby superimpose itself upon such universities
merely for the reason that they are imparting teaching in technical
education or programmes in any of their departments or units. A
careful scanning of the provisions of the AICTE Act and the
provisions of the University Grants Commission Act, 1956 in
juxtaposition will show that the role of AICTE vis-à-vis the
universities is only advisory, recommendatory and one of providing
guidance, thereby subserving the cause of maintaining appropriate
standards and qualitative norms and not as authority empowered to
issue and enforce any sanction 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 Univesity v. All India
Council for Technical Education [(2001) 8 SCC 676]”
(emphasis supplied)
The underlined portions from the said decision referred to supra would make it
clear that the AICTE Act does not contain any evidence of an intention to
belittle and destroy the authority or autonomy of other statutory bodies which
they are assigned to perform. Further, the AICTE Act does not intend to be an
authority either superior or to supervise or control the universities and thereby
superimpose itself upon the said universities merely for the reason that it is
laying down certain teaching standards in technical education or programmes
formulated in any of the department or units. It is evident that while enacting
51Page 52
the AICTE Act, the Parliament was fully alive to the existence of the provisions
of UGC Act, 1956 particularly, the said provisions extracted above. Therefore,
the definition in Section 2(h) technical institution in AICTE Act which
authorizes the AICTE to do certain things, special care has consciously and
deliberately been taken to make specific mention of university, wherever and
whenever the AICTE alone was expected to interact with university and its
departments as well as constituent institutions and units. It was held after
analyzing the provision of Sections 10, 11 and 12 of the AICTE Act that the
role of the inspection conferred upon the AICTE vis-à-vis universities is limited
to the purpose of ensuring proper maintenance of norms and standards in the
technical education system so as to conform to the standard laid down by it with
no further or direct control over such universities or scope for any direct action
except bringing it to the notice of UGC. In that background, this Court in
Bharathidasan University case made it very clear by making the observation
that it has examined the scope of the enactment as to whether the AICTE Act
prevails over the UGC Act or the fact of competent entries fall in Entry 66 List I
vis-à-vis Entry 25 of List III of the VII Schedule of the Constitution. A
cumulative reading of the aforesaid paragraphs of Bharathidasan University’s
case which are extracted above makes it very clear that this Court has exempted
universities, its colleges, constituent institutions and units from seeking prior
approval from the AICTE. Also, from the reading of paragraphs 19 and 20 of
Parashvanath Chartitable Trust case it is made clear after careful scanning of
52Page 53
the provisions of the AICTE Act and the University Grants Commission Act,
1956 that the role of AICTE vis-à-vis universities is only advisory,
recommendatory and one of providing guidance and has no authority
empowering it to issue or enforce any sanctions by itself. It is rightly pointed
out from the affidavit filed by UGC as directed by this Court in these cases on
the question of affiliated colleges to the university, that the affidavit is very
mechanical and it has simply and gratuitously without foundation, added as
technical institutions including affiliated colleges without any legal foundation.
In paragraphs 13, 14, 15 and 19 of the Affidavit filed by the UGC and the
assertion made in paragraph 23 is without any factual foundation, which reads
as under:
“That it is further submitted that affiliated colleges are distinct and
different than the constituent colleges. Thus, it cannot be said that
constituent colleges also include affiliated colleges.”
Further, the assertion of UGC as rightly pointed out by Dr. Dhavan in the
written submission filed on behalf of the appellant in CA No. 1145 of 2004 that
the claim that UGC does not have any provision to grant approval of technical
institution, is facile as it has already been laid down by this Court that the
AICTE norms can be applied to the affiliated colleges through UGC. It can
only advise the UGC for formulating the standard of education and other
aspects to the UGC. In view of the law laid down in Bharathidasan
University and Parashvanath Charitable Trust cases (supra), the learned
senior counsel Dr. Dhavan has rightly submitted for rejection of the affidavit of
53Page 54
the UGC, which we have to accept as the same is without any factual
foundation and also contrary to the intent and object of the Act.
39. It is also relevant to refer to the exclusion of university from the
definition of ‘technical institution’ as defined under section 2(h) of the AICTE
Act. The Institution means an institution not being university, the applicability
of bringing the university as defined under clause 2 (f) of UGC Act includes the
institution deemed to be a university under Section 3 of the said Act and
therefore the affiliated colleges are excluded from the purview of technical
institution definition of the AICTE Act. The submission made on behalf of the
colleges which are affiliated to the respective universities which are being run
by the appellants in the connected appeals will also come within the purview of
the university referred to in the above definition of technical institution. The
above interpretation sought to be made by the learned senior counsel and
another counsel is supported by the provisions of the UGC Act. Section 12A
of the UGC Act clearly speaks of regulation of fees and provisions of
donation in certain cases which refers to the phrase affiliation together with its
grammatical variation included in relation to a college, recognition of such
college by, association of such college with, and admission of such college to
the privileges of universities. A careful reading of sub-sections (2)(c), (3), (4)
and (5) of Section 12A of the UGC Act makes it abundantly clear about
colleges which are required to be affiliated to run the courses for which
54Page 55
sanction/approval will be accorded by the university or under the control and
supervision of such universities. Therefore, affiliated colleges to the
university/universities are part of them and the exclusion of university in the
definition of technical institution as defined in Section 2(h) of the AICTE Act
must be extended to the affiliated colleges to the university also, otherwise, the
object and purpose of the UGC Act enacted by the Parliament will be defeated.
The enactment of UGC Act is also traceable to Entry 66 of List I. The aforesaid
provisions of the UGC Act have been examined by this Court with reference to
the provisions of AICTE Act in Bharathidasan University’s case. Therefore, it
has clearly laid down the principle that the role of the AICTE Act is only
advisory in nature and is confined to submitting report or giving suggestions
to the UGC for the purpose of implementing its suggestions to maintain good
standards in technical education in terms of definition under Section 2(h) of the
AICTE Act and to see that there shall be uniform education standard throughout
the country to be maintained which is the laudable object of the AICTE Act for
which it is enacted by the Parliament. The provisions of the AICTE Act shall be
implemented through the UGC as the universities and its affiliated colleges are
all governed by the provisions of the said Act under Section 12A of the UGC
Act read with Rules Regulations that will be framed by the UGC in exercise of
its power under Sections 25 and 26 of the said Act. Therefore, the conclusions
arrived at in Bharathidasan University case is supported by the eleven Judge
Constitution Bench decision in T.M.A. Pai case (supra) wherein this Court has
55Page 56
overruled the directions given in Unni Krishnan J.P. & Ors. v. State of
Andhra Pradesh & Ors.6
to the Central Government and others regarding the
reservations and schemes. The relevant paragraphs of T.M.A. Pai case read as
under:-
“37. Unni Krishnan judgment has created certain problems, and
raised thorny issues. In its anxiety to check the commercialization of
education, a scheme of “free” and “payment” seats was evolved on
the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the
converse has proved to be the reality. In this scheme, the “payment
seat” student would not only pay for his own seat, but also finance
the cost of a “free seat” classmate. When one considers the Constitution Bench’s earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for
the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban
students always have an edge over the rural students. In practice, it
has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student.
38. The scheme in Unni Krishnan case has the effect of nationalizing education in respect of important features viz. the right of a private unaided institution to give admission and to fix the fee. By
framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the
essential features of the right of administration of a private unaided
educational institution can neither be called fair nor reasonable.
Even in the decision in Unni Krishnan case it has been observed by
Jeevan Reddy, J., at p. 749, para 194, as follows:
“194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to
do without them because the governments are in no position to meet
the demand — particularly in the sector of medical and technical education which call for substantial outlays. While education is one of
the most important functions of the Indian State it has no monopoly
6
1993 (1) SCC 645
56Page 57
therein. Private educational institutions — including minority educational institutions — too have a role to play.”
It has been clearly held that the decision in Unni Krishnan’s case in so far as it
framed the scheme relating to the grant of admission and the existing of fee, is
not correct and the consequent directions given to UGC, AICTE and Medical
Council of India, Central Government and the State Government etc. are
overruled. It is worthwhile to mention paragraphs 29 and 31 of the UGC Report
of the University Education Commission headed by late Dr. S. Radhakrishnan
as its Chairman and nine other renowned educationists as its members. The
report which is extracted at paragraph 51 in the said T.M.A. Pai case reads
thus:
“51. A University Education Commission was appointed on 4-11-
1948, having Dr S. Radhakrishnan as its Chairman and nine other
renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university
education and research in India and maintenance of higher standards
of teaching and examination in universities and colleges under their
control. In the report submitted by this Commission, in paras 29 and
31, it referred to autonomy in education which reads as follows:
“University autonomy.—Freedom of individual development is
the basis of democracy. Exclusive control of education by the State
has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries,
promote the political purposes of the State, make them acceptable to
an increasing number of their population and supply them with the
weapons they need. We must resist, in the interests of our own
57Page 58
democracy, the trend towards the governmental domination of the
educational process.
Higher education is, undoubtedly, an obligation of the State but
State aid is not to be confused with State control over academic
policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth
regardless of consequences has been the ambition of universities.
Their prayer is that of the dying Goethe: ‘More light’, or that of
Ajax in the mist ‘Light, though I perish in the light.’
* * *
The respect in which the universities of Great Britain are held is
due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.
Liberal education.—All education is expected to be liberal. It
should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is
due to faults in our inward being, to the darkness in us. The process
of education is the slow conquering of this darkness. To lead us
from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.”
Para 71 of the said decision, which deals with the rights of the private
aided non-minority professional institutions, is extracted hereunder:
“Private aided professional institutions (non-minority)
71. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be
granted to different aided colleges by virtue of merit, coupled with
the reservation policy of the State. The merit may be determined
either through a common entrance test conducted by the university
or the Government followed by counselling, or on the basis of an
entrance test conducted by individual institutions — the method to
be followed is for the university or the Government to decide. The
authority may also devise other means to ensure that admission is
granted to an aided professional institution on the basis of merit. In
the case of such institutions, it will be permissible for the Govern-
58Page 59
ment or the university to provide that consideration should be
shown to the weaker sections of the society.”
At paragraph 72 in the said judgment, it has been held that once aid is
granted to a private professional educational institution, the Government or the
State agency, as a condition of the grant of aid, can put fetters on the freedom in
the matter of administration and management of the institution. It is stated as
under:
“72. .............The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper
maintenance of the high standards of education as the financial
burden is shared by the State. The State would also be under an
obligation to protect the interest of the teaching and non-teaching
staff. In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the
States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching
and non-teaching staff. It would be its responsibility to ensure that
the teachers working in those institutions are governed by proper
service conditions. The State, in the case of such aided institutions,
has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the
same. Ever since In Re, Kerala Education Bill, 1957 this Court has
upheld, in the case of aided institutions, those regulations that
served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the
institutions. In other words, rules and regulations that promote
good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and
fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an
aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to
the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and
capital expenses. Such aided institutions cannot obtain that extent
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of autonomy in relation to management and administration as
would be available to a private unaided institution, but at the same
time, it cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled
government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management.”
40. A reading of the aforesaid paragraphs extracted from TMA Pai’s case
makes it very clear that in view of decision of the eleven Judges Constitution
Bench of this Court, the scheme framed under the Unni Krishnan’s case has
been overruled. Therefore, the autonomy of the university is recognized in the
said case and the object and intendment of the Parliament in excluding the
universities from the definition of technical institution as defined under Section
2(h) of the AICTE Act makes is explicitly clear, after scanning the definition of
education institution with reference to the exclusion of universities and Sections
10, 11, 12 and 13 of the AICTE Act. The object of the statutory enactment made
by the Parliament has been succinctly examined by this Court in
Bharathidasan University and Parshvanath Charitable Trust cases
referred to supra therefore they have rightly made observations that the role of
the AICTE Act in view of the UGC Act and the powers and functions
conferred by the UGC for controlling and regulating the universities and its
affiliated colleges has been explicitly conferred upon the UGC. Hence, they
have been given the power to regulate such universities and regulations in
relation to granting sanctions/approvals and also maintaining educational
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standards and over-seeing the prescription of the fee structure including the
admission of students in various courses and programmes that will be conducted
by the university and its institutions, constituent colleges, units and the affiliated
colleges. Therefore, we have to hold that the Bharathidasan University case
(supra) on all fours be applicable to the fact situation of these appeals and we
have to apply the said principle in the cases in hand whereas in the decisions of
Adhiyaman Education and Research Institute case and Jaya Gokul
Education Trust’s case (supra) this Court has not examined the cases from the
aforesaid perspective. Therefore, the same cannot be applied to the fact
situation. The reliance placed upon those judgments by the learned senior
counsel on behalf of the AICTE is misplaced.
Accordingly, point nos.1 and 2 are answered in favour of the appellants.
Answer to Point No.3
41. Learned senior counsel for AICTE, Mr. Rakesh Dwivedi, with reference
to the definition of technical education under the provisions of the AICTE Act,
urged that the definition of engineering and technology has to be construed and
interpreted to bring MCA course under its fold in view of the meaning assigned
to those words occurred in the definition clause by placing reliance on the
different dictionaries, which are extracted as hereunder:
As per the Webster’s Comprehensive Dictionary, ‘Technology’ means:
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“(1) Theoretical knowledge of industry and the industrial arts.
(2) The application of science to the arts.
(3) That branch of ethnology which treats of the development of
the arts”.
Wharton’s Law Lexicon defines ‘Technology’ as:
“any information (including information embodied in software)
other than information in the public domain, that is capable of being
used in- (i) the development, production or use of any goods or
software; (ii) the development of, or the carrying out of, an industrial
or commercial activity or the provision of a service of any kind.
Explanation, when technology is described wholly or partly by
reference to the uses to which it (or the goods to which it relates)
may be put, it shall include services which are provided or used, or
which are capable of being used, in the development, production or
use of such technology or goods. [Weapons of Mass Destruction and
their delivery system…]. Means a branch of knowledge; the
knowledge and means used to produce the material necessities of a
society….”
Further, Encyclopedia Law Lexicon presents ‘Technology’ as:
“any information (including information embodied in software)
other than information in the public domain, that is capable of being
used in- (i) the development production or use of any goods or
software; (ii) the development of, or the carrying out of, an industrial
or commercial activity or the provision of a service of any kind.
[Section 4(1), The Weapons of Mass Destruction and their delivery
system (Prohibition of Unlawful Activities Act, 2005].”
The New Shorter Oxford English dictionary defines ‘Technology’ as:
“1(a) The branch of knowledge that deals with the mechanical arts of
applied sciences; a discourse or treaties on (one of) these subjects,
orig. on an art or arts. (b). The terminology of a particular subject;
technical nomenclature. 2(a). The mechanical arts or applied
sciences collectively; the application of (any of) these. (b). A
particular mechanical art or applied science.”
Further, ‘Technology’, in Advanced Law Lexicon is defined as
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“any special or technical knowledge or any special service required
for any purpose whosoever by an industrial concern under any
foreign collaboration, and includes designs, drawings, publication
and technical personnel.”
and ‘knowledge’ is defined in the same dictionary as
“the means and methods of producing goods and services, or the
application of science to production or distribution, resulting in the
creation of new products, new manufacturing processes, or more
efficient methods of distribution. (WTO).”
The meaning of Engineering as given in Dictionaries are read as under:
Webster’s Comprehensive Dictionary - Engineering – Enginering
in the broader sense, is that branch of human endeavour by which
the forces of nature are brought under human control and the
properties of matter made useful in structures and machines”
Advanced Law Lexicon – The activity or the functions of an
Engineer; the science by which the properties of matter and the
sources of energy in nature are made useful to man in structures,
machines and products; relating to engineering.
The New Shorter Oxford English Dictionary – The work done by or
the occupation of, an engineer, the application of the science for
directly useful purposes as, construction, propulsion, communication
or manufacture. The action of working artfully to bring something
about. A field of study or activity concerned with deliberate
alteration or modification in some particular area.
Law Lexicon – The activity or the functions of an engineer; the
science by which the properties of matter and the sources of energy
in nature are made useful to man in structures, machines and
products.”
42. The above meanings of the words ‘technology’ and ‘engineering’ as per
the dictionaries referred to supra would clearly go to show that MCA also
comes within the definition of technology. Therefore, the contention that
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technical education includes MCA as raised by the learned senior counsel on
behalf of the AICTE stand to its reasoning and logic in view of the nature of
MCA course which is being imparted to the students at post graduation level
which is being conducted by the institutions, constituent colleges and affiliated
colleges to the universities. The same is a technical education and therefore, it
comes within the definition of technical education but for its proper conduct of
courses and regulation the role of AICTE must be advisory and for the same, a
note shall be given to the UGC for its implementation by it but not the AICTE.
Accordingly, point no.3 is answered in favour of respondent AICTE.
43. As per definition of ‘technical education’ under Section 2(g) of the
AICTE Act and non production of any material by the AICTE to show that
MBA course is a technical education, we hold that MBA course is not a
technical course within the definition of the AICTE Act and in so far as reasons
assigned for MCA course being ‘technical education’, the same does not hold
for MBA course. Therefore, for the reasons assigned while answering the
points which are framed in so far as the MCA course is concerned, the approval
from the AICTE is not required for obtaining permission and running MBA
course by the appellant colleges.
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44. So far as point nos.4 and 5 are concerned, the amended Regulation Nos.
8(c) and 8(iv) of 2000 were introduced by the AICTE in exercise of its power
under section 10(k) of AICTE Act by adding the MBA and MCA courses
within the purview of the provisions of AICTE as it is included in the
Regulation as a technical education.
It is the case made out by learned counsel
for the appellant Mr. Prashant Bhushan that
the amended Regulation has not
been placed before the Parliament which is mandatory as per the provisions of
Section 24 of the AICTE Act, the said contention has not been disputed by the
AICTE in these cases.
The provision of Section 24 reads thus:
“24. Rules and regulations to be laid before Parliament:-
Every rule and every regulation made under this Act shall be laid,
as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more
successive sessions, and it before the expiry of the session
immediately following the session or the successive sessions,
aforesaid, both Houses agree that the rule or regulation should not
be made, the rule or regulation shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that
rule or regulation.”
The position of law is well settled by this Court that if the Statute prescribes a
particular procedure to do an act in a particular way, that act must be done in
that manner, otherwise it is not at all done. In the case of Babu Verghese v.
Bar Council of Kerala7
, after referring to this Court’s earlier decisions and
Privy Council and Chancellor’s Court, it was held as under:
7
1999 (3) SCC 422
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“31. It is the basic principle of law long settled that if the manner of
doing a particular act is prescribed under any statute, the act must be
done in that manner or not at all. The origin of this rule is traceable
to the decision in Taylor v. Taylor which was followed by Lord
Roche in Nazir Ahmad v. King Emperor who stated as under:
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this
Court in State of U.P. v. Singhara Singh and the rule laid down in
Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been
recognised as a salutary principle of administrative law.”
In view of the above said decision, not placing the amended Regulations on the
floor of the Houses of Parliament as required under Section 24 of the AICTE
Act vitiates the amended Regulations in law and
hence the submissions made on
behalf of the appellants in this regard deserve to be accepted.
Accordingly,
point Nos. 4 and 5 are answered in favour of the appellants.
45. In so far as point no.6 is concerned, the law laid down in Bharathidasan
University case, for the reasons recorded by us while answering point nos.1 and
2 in favour of the appellants, the said decision on all fours be applicable.
We
have distinguished Adhiyaman Education and Research Institute and Jaya
Gokul Educational Trust cases from Bharathidasan University case in the
reasoning portion while answering point nos.1 and 2.
Therefore, the said two
cases need not be applied to the present case.
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46. For the foregoing reasons, the common impugned judgment and order
passed in W.A. 2652 of 2001, W.A. No. 3090 of 2001, WA 2835 of 2001, WA
3087 of 2001, WA 2836 of 2001, WA 3091 of 2001, WA 3092 of 2001, WA
2837 of 2001, WA 3088 of 2001, WA 2838 of 2001 and WA 3089 of 2001 is
hereby set aside.
The civil appeals are allowed. The relief sought for in the Writ
Petitions is granted in so far as not to seek approval from the AICTE for MBA
and MCA courses are concerned.
There will be no order as to costs.
………………………..J.
[ Dr. B.S. CHAUHAN ]
………………………..J.
[ V. GOPALA GOWDA ]
New Delhi,
April 25, 2013.
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