Education - Art. 14 & 19 - Right to practice - GDR Society not a person nor a juristic person can not entertain a petition under Art.19 of Indian Constitution - Refusal to grant Affiliation By AICTE with out assigning valid reasons - voilative of Art.14 and as such the Apex court set aside the order of Executive Council and directed to grant affiliation to the petitioner =
By another communication dated 01.7.2014, which was received by the
petitioner on 09.7.2014, the University informed the second petitioner as
follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.05.2014, the
Executive Council of the University met on 11.06.2014 and a majority
decision was taken to disapprove the provisional affiliation granted to
Rungta Engineering College, Bhilai on 17.07.2013. Now, the status of
Rungta Engineering College, Bhilai stands “Dis-affiliated” for the academic
session 2013-14.
The above has been communicated to you vide letter no.1109 dated 19th June
2014. The application for 2014-15 is an extension of affiliation to the
College. The decision taken in the Executive Council on 11.06.2014 was to
dis-affiliate the College, therefore the extension of 14-15 does not arise
as the College has already been dis-affiliated.”
(emphasis supplied)
24. Hence the writ petition.=
An examination of all the objections mentioned in the said
communication would reveal that each one of those objections squarely fall
within the sweep of one or the other areas which only the AICTE has the
exclusive jurisdiction to deal with.
None of them are demonstrated before
us to be matters falling within the area legally falling within the domain
of the respondents.
AICTE, on inspection of the Ist petitioner college
reported that the Ist petitioner college fulfils all the conditions
prescribed by the norms and standards laid down by AICTE.
The respondents
did not make any specific assertion that such a report of the AICTE is
factually incorrect.
Assuming for the sake of argument that, in the
opinion of the respondents, the petitioner college has not in fact
fulfilled any one of the conditions required under the norms specified by
the AICTE, the only course of action available for the respondents is to
bring the shortcomings noticed by them to the notice of the AICTE and seek
appropriate action against the petitioner college.[6]
43. We are, therefore, of the opinion that the decision of the respondent
not to grant the affiliation to the first petitioner college is wholly
untenable and is required to be set aside.
The same is accordingly set aside.
Since the respondent did not decline the affiliation to the first
petitioner college either on the ground that the petitioner college is
admitting wholly ineligible students as per the norms stipulated by the
respondent University or that the admission procedure prescribed by the
respondents is not being complied with by the petitioners or on any other
ground that the petitioners violated any one of the stipulations made by
the University which the University is legally competent to make,
we have
no option but to direct the respondents to grant affiliation to the
petitioner college.
The operative portion of the judgment of this Court
has already been pronounced on 01.9.2014. Therefore, we are not
reiterating the same.
EPILOGUE
44. We are sorry to say that in the entire writ petition, we did not find
any information
whether the GDR Educational Society is a body
recognized/registered under any enactment. If it is recognized, what is
the relevant enactment under which the same is registered? So-called first
petitioner has no existence in the eye of law and is not capable of suing
or being sued, though the second petitioner is a natural person who is
capable of suing and being sued.
The bold assertion that the impugned
action is violative of Article 19(1)(g) of the Constitution made in the
petition is a highly doubtful assertion vis-à-vis both the petitioners.
The rights under Article 19 are only guaranteed to the citizens.
The so-
called first petitioner cannot be a citizen, not even a person. Whether
the right asserted by the second petitioner under Article 19 is a right to
practise any profession or to carry on any occupation, trade or business is
not known. No arguments are advanced on either side. Modern lawyers do
not trouble themselves with such questions!
Any judge asking these
questions perhaps is considered “not sensitive to the public interest”!
However, the whole exercise undertaken by the respondent is certainly
violative of Article 14 of the Constitution and, therefore, we have
examined the issue.
45. The writ petition stands disposed off accordingly.
2014- Sep.Month -http://judis.nic.in/supremecourt/imgst.aspx?filename=41964
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.653 OF 2014
Rungta Engineering College, Bhilai
& Another … Petitioners
Versus
Chhattisgarh Swami Vivekanand
Technical University & Another … Respondents
J U D G M E N T
CHELAMESWAR, J.
1. A Society called GDR Educational Society claims to be running a
number of colleges. It is claimed in the writ petition that the ‘first
petitioner’ is one of such colleges and the second petitioner is a
Secretary of the said Educational Society.
2. The All India Council for Technical Education (hereinafter referred
to as “AICTE”) is a body constituted under Section 3 of the All India
Council for Technical Education Act, 1987 (hereinafter referred to as “1987
Act”). The AICTE was established for “proper planning and co-ordinated
development of the technical education system throughout the country, the
promotion of qualitative improvement of such education in relation to
planned quantitative growth and the regulation and proper maintenance of
norms and standards in the technical education system and for matters
connected therewith”.
3. One of the functions of the AICTE under Section 10(k)[1] of the said
Act is to grant approval for starting new ‘technical institutions’ and for
introduction of new courses or programmes in consultation with technical
agencies.
4. “Technical Institution” is defined under Section 2(h) 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.”
5. “Technical Education” is defined under Section 2(h) as follows:
“2(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.”
6. AICTE granted approval by its proceedings dated 07.04.2013 in favour
of a society called the GDR Educational Society[2] to conduct five
different courses of engineering[3] indicated in the said proceedings for
the academic year 2013-2014 in the “1st petitioner college”3a which has
been established by the said society with a total intake capacity of 300
students.
7. It is stated in the communication granting approval dated 07.4.2013
as follows:
“The approval is valid for two years from the date of issue of this letter
for getting affiliation with respective University and fulfilling State
Govt. requirements for admission. If institution is unable to start in
the academic session 2013-14 due to reason mentioned above, the institution
will have to apply On-line on AICTE web portal in the next academic session
for continuation of approved intake 2013-14.
The Society/Trust/Institution shall obtain necessary affiliation/permission
from the concerned affiliating University as per the prescribed schedule of
the University/Admission authority etc.”
8. The Chhattisgarh Swami Vivekanand Technical University is established
by The Chhattisgarh Swami Vivekanand Technical University Act, 2004 (25 of
2004) (hereinafter referred to as the “2004 Act”). The preamble of the Act
indicates the purpose of the Act:
“An Act to establish and incorporate a University of Technology for the
purpose of ensuring systematic, efficient and qualitative education in
engineering and technological subjects including Architecture and Pharmacy
at Research, Post Graduate Degree and Diploma level and to provide for
matters connected therewith or incidental thereto”.
9. The University is constituted under Section 3 of the Act which
declares that such University shall have perpetual succession, common seal
and is capable of suing and being sued by its name. The objectives of the
University are specified under Section 4. Section 4(13) stipulates that
one of the objectives is “to admit to its privileges colleges or
polytechnics not maintained by the University, to withdraw all or any of
these privileges and to take over the management of Colleges or
Polytechnics in the manner and under conditions prescribes by the Statute
or the Ordinance”.
10. Section 6 declares that the jurisdiction of the University shall
extend to the whole of the State of Chhattisgarh. Section 6(2) stipulates
that “notwithstanding anything contained in any other law for the time
being in force, any College or Polytechnic or institution imparting
Technical Education and situated within the limits of the area specified
under sub-section (1) shall, with effect from such date as may be notified
in this behalf by the State Government, be deemed to be associated with and
admitted to the privileges of the University and shall cease to be
associated with other University or Board in the manner prescribed by
Statute or Regulation”. Obviously, any institution imparting technical
education as defined under Section 2(26) of the Act situated within the
limits of State of Chhattisgarh is deemed to be associated with and
admitted to privileges of the University.
11. Section 23 of the 2004 Act stipulates that the Executive Council, a
body constituted under Section 22 of the Act, shall be the supreme
authority of the University with various powers and duties specified under
Section 23. One of them is “to admit Colleges or Polytechnics to the
privileges of the University on the recommendation of the Academic Council
and subject to the provisions of this Act and Statute and to withdraw any
of the privileges and to take over the management of the College or
Polytechnic in the manner and under conditions prescribed by the Statute
and Ordinance”.
12. In view of the requirement of securing the affiliation of the
concerned University as stipulated by the order of approval (07.04.2013) by
AICTE, it appears that an application was made to the said University to
grant affiliation to the first petitioner college which was rejected in a
meeting of the Executive Council of the University dated 13.5.2013[4].
13. Aggrieved by such decision, a Writ Petition (C) No.847 of 2013 came
to be filed by the petitioners herein before the High Court of Chhattisgarh
at Bilaspur. The said writ petition was disposed of by an order dated
28.6.2013 directing consideration of the representation to be made by the
petitioners after giving them an opportunity of being heard in person. The
operative portion of the order is as follows:
“Shri Shrivastava, learned counsel appearing for the respondent/university
submits that he has no objection if a representation is made, and in the
event, a representation is made, the same will be considered in accordance
with law as expeditiously as possible. He further submits that the
petitioner may also be heard in person, if so desired by the petitioner.
In view of the above submissions made by learned counsel appearing for the
parties, if the petitioners makes a representation with a period of one
week from today, as agreed and consented by both the parties, the
petitioner may appear before the authorities of the respondent/university.
The respondent/university is also directed to consider and decide the
representation within a period of two weeks from the date of receipt of the
representation, in accordance with law, on its own merit and perspective.”
14. The petitioners submitted a representation dated 01.7.2013. A
communication dated 17.7.2013 was sent to the petitioners signed by the
Registrar of the University purporting to grant affiliation for the
academic session 2013-14 for the various courses specified therein for
total intake capacity of 300 students with a rider that such affiliation is
subject to approval of the Executive Council of the University[5]. It is
the specific case of the University that such a decision was taken by the
Vice-Chancellor in exercise of the powers under Section 14(4) read with
Section 23(12) of the 2004 Act. Pursuant to such affiliation order, the
petitioners admitted more than some 200 students.
15. On 28.12.2013, the petitioners once again applied for affiliation for
the academic session 2014-15.
16. On 03.3.2014, the 31st meeting of the Executive Council of the
University was held wherein the provisional affiliation granted on
17.7.2013 by the Vice-Chancellor was considered. The Executive Council
took note of the fact that in an earlier meeting dated 10.8.2013 the
Executive Council had referred the case to the Advocate General for opinion
and as opinion was not forthcoming for various reasons, the Executive
Council took a decision as follows:
“The conditional affiliation granted vide letter No.CSVTU/Affil/2013-
2014/2013/2963 dated 17.7.2013 should be withdrawn.
Students admitted may be transferred to other colleges in a legal, lawful
and rationale manner.
The Executive Council unanimously took a decision to place the matter
before the Hon’ble Chancellor for his final decision in the matter.”
17. The question of ratification of the affiliation granted to the first
petitioner College once again came for consideration in 33rd meeting of the
Executive Council on 29/30.4.2014. Once again it was decided:
“Based on the majority decision proposal of ratification of affiliation
stands turned down, taking into account the aforesaid facts. Keeping the
future of admitted students, a letter be written to the Director-Technical
Education and Secretary-Technical Education, to transfer the students to
other colleges where seats are vacant.”
The said decision was communicated to the petitioners herein on 01.5.2014.
18. Aggrieved by the said decision, the petitioners filed Writ Petition
No.423 of 2014 before this Court. On 12.5.2014, this Court issued notice
on the said writ petition. On 19.5.2014, the said writ petition was
disposed off. The operative portion of the said order reads as follows:
“Be that as it may, it is agreed that the Executive Council shall look into
the matter again in so far as academic year 2013-2014 is concerned, we
remit the case back to the Executive Council to take a decision afresh
after giving due opportunity to the petitioners to present their case
before the Executive Council and pass reasoned order thereon within four
weeks.
As far as academic year 2014-2015 is concerned, it is pointed out by Mr.
Varma, learned senior counsel that the application of the petitioner –
College along with the applications submitted by other colleges for
affiliation are already under consideration.
In view thereof, in so far as academic year 2014-2015 is concerned, the
Executive Council shall take a decision in the aforesaid manner by 15th
July 2014 after following the due procedure.”
19. It can be seen from the order that it is an agreed order to the
effect that the Executive Council will once again examine the question of
granting affiliation to the first petitioner college insofar as it pertains
to the academic year 2013-2014. Coming to the question of affiliation for
the academic year 2014-2015, this Court directed the Executive Council to
take a decision by 15.7.2014.
20. Pursuant to the said order, the petitioner submitted another
representation on 23.5.2014 praying that a decision be taken on the issue
of grant of affiliation for the academic year 2014-2015.
21. On 04.6.2014, AICTE granted approval for the academic year 2014-2015
to conduct seven different courses (five graduate and two diploma courses)
with a total intake of 540 students, the details of which may not be
necessary for the present purpose.
22. On 11.6.2014, an opportunity for oral hearing was granted by the
Executive Council in its 36th meeting. Finally, by a communication dated
19.6.2014, the University informed the second petitioner herein that the
Executive Council of the University in its meeting held dated 11.6.2014
took a decision by majority to disapprove the provisional affiliation
granted on 17.7.2013 to the first petitioner. The said communication reads
as follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.5.2014, the
Executive Council of the University met o 11.6.2014, where a majority
decision was taken to disapprove the provisional affiliation granted on
17.7.2013 to Rungta Engineering College, Bhilai. Therefore, the status of
Runga Engineering College, Bhilai stands “dis-affiliated” for the academic
session 2013-14. A copy of the minutes of the Executive Council, citing
reasons for disapproving the provisional affiliation granted to Rungta
Engineering College, Bhilai, is enclosed for your kind information.”
23. By another communication dated 01.7.2014, which was received by the
petitioner on 09.7.2014, the University informed the second petitioner as
follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.05.2014, the
Executive Council of the University met on 11.06.2014 and a majority
decision was taken to disapprove the provisional affiliation granted to
Rungta Engineering College, Bhilai on 17.07.2013. Now, the status of
Rungta Engineering College, Bhilai stands “Dis-affiliated” for the academic
session 2013-14.
The above has been communicated to you vide letter no.1109 dated 19th June
2014. The application for 2014-15 is an extension of affiliation to the
College. The decision taken in the Executive Council on 11.06.2014 was to
dis-affiliate the College, therefore the extension of 14-15 does not arise
as the College has already been dis-affiliated.”
(emphasis supplied)
24. Hence the writ petition.
25. The petitioners challenged the impugned order on the ground that it
violates Articles 14 and 19(1)(g) of the Constitution of India. It is also
argued by the learned counsel for the petitioners that the respondents
decided not to grant affiliation on the basis of considerations which are
factually incorrect and areas which are not within their legal competence
to exercise.
26. On the other hand, the respondent resisted the writ petition on the
ground that the first petitioner College does not satisfy various
conditions contemplated under AICTE norms and also Statute 19 of the
University. It is the case of the first respondent University that by a
communication dated 26.4.2013 the second petitioner was informed of the
various shortcomings. The relevant portion of the communication reads as
follows:
“Based on the recommendations of the Inspection Committee constituted by
Chhattisgarh Swami Vivekanand Technical University, Bhilai, for the
affiliation of courses of your Institution, the institution has been found
to be suffering from the following deficiencies:
Teaching staff (Assistant professor, Associate Professor, Professor)
appointed on adhoc basis be selected through the University Selection
Committee as per statute 19 of CSVTU and as per AICTE norms. Selection of
process be initiated at the earliest to maintain Cadre ratio as per norms.
Principal be appointed as per Statute-19 of the University.
Student teacher ratio be improved as per norms.
Govt. NoCs to conduct 1st year classes for the session 2013-14 be
submitted.
Journals be procured in the Library as per norms. E-Journals in digital
library and other books related to general proficiency be procured.
Proper timing of librarian is needed as proper entry of books in accession
register be maintained.
Safety measures be installed at Structure, Library, Labs and Workshop.
Internet connectivity in Computer lab be improved.
Separate strong room be provided in exam control room.
Flow charts, lab manuals of laboratory & layout of lab be displayed.
Lux meter be used to check the illumination in the different areas like
Class rooms & laboratory of the campus.
Playground facility be improved.
Licence software & communication skill be developed as per norms.
List of experiments as per University scheme be displayed on the notice
boards with signature of Prof. I/c and lab attendant.
All weather roads in general be improved and set back distance of the
boundaries be maintained as per municipal bye building.
Anti ragging cell, women’s cell and counselling cell be formed & displayed
in the campus.
Demarcation of parking, Canteen & other amenities be improved.
Anvil accessories of the workshop be made available.
Gas pipe line be provided with commercial gas cylinder along with shower be
provided in the Chemistry lab.
Seating arrangement like stool be provided for the students in the labs.
Supporting laboratory staff be appointed as per norms & working hours of
library be displayed.
Specifying class rooms, Labs, Library, Computer centres, Drawing Hall,
Workshop, Seminar hall on the approved building plans, floorwise, (on
photocopies of the original Approved building Plans without any reductions
in size) be submitted to the University.
Sports fee if any be submitted.
Processing fee of Rs.30,000/- be submitted.
An affidavit on non judicial stamp paper of Rs.50/- by
Trust/Society/Principal regarding the steps taken for the Compliance of
rectifying of the above deficiencies is to be submitted to the University
latest by 29.4.2013.”
27. In response to the said communication, the GDR Educational Society
sent a reply dated 29.4.2013, the substance of which is that all the
alleged shortcomings pointed out in the communication of the University
dated 26.4.2013 are either without any factual basis or had in fact been
complied with.
28. In the light of sharp difference of opinion between the petitioners
and the first respondent University, during the pendency of the present
writ petition, we thought it fit to call upon AICTE by the order dated
08.8.2014 to “inspect the petitioner’s College and submit a report whether
the petitioner has complied with all the requirements of law”. In view of
the said direction, AICTE conducted inspection and reported. The substance
of which is that the petitioner College has complied with all the
requirements of law.
29. The respondent University and the State very vehemently argued that
notwithstanding the opinion expressed by AICTE there are still some
shortcomings examined in the light of the norms and standards of the
University for granting affiliation to any institution imparting technical
education.
30. It is argued that the University, which is a statutory body brought
into existence pursuant to an enactment made by the legislative assembly of
the State of Chhattisgarh, is obliged to discharge the duties enjoined upon
it by the 2004 Act and it cannot be prevented from discharging its
obligation of being satisfied that the petitioner institution qualifies for
affiliation in terms of the norms and standards prescribed by it in
discharge of its statutory powers and compelled to grant affiliation
notwithstanding the fact that the University is not satisfied with the
eligibility of the first petitioner College for affiliation.
31. The authority of the States and the Universities established by the
States to regulate the establishment and running of institutions imparting
technical education has been a subject matter of a long debate in various
judgments of this Court.
32. Educational institutions imparting technical education are amenable
to the control of AICTE under the 1987 Act in certain aspects and the
regulatory authority of the State, and Universities established by or under
a legislation of the State, in certain other aspects.
33. This Court in State of T.N. and Another v. Adhiyaman Educational &
Research Institute and Others, (1995) 4 SCC 104, after considering the
constitutional scheme of various entries of List I and List III of the
Seventh Schedule and the language of the 1987 Act and the Madras University
Act concluded that the 1987 Act is referable to Entry 66 of List I. The
field of “determination of standards in institutions for higher education,
or research and scientific and technical institutions” is exclusive to the
Parliament and any law made by the Parliament referable to the said field
is paramount. The 1987 Act empowers the AICTE, a body constituted under the
said Act “to evolve suitable performance appraisal systems incorporating
norms and mechanisms for maintaining accountability of the technical
institutions” and lay down “norms and standards for courses, curricula,
staff pattern, staff qualifications, assessment and examinations, fixing
norms and guidelines for charging tuition fee and other fees, granting
approval for starting new technical institutions or introducing new courses
or programmes”. This Court categorically held “Thus, so far as these
matters are concerned, in the case of the institutes imparting technical
education, 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”. Consequently, this Court held “after coming into operation
of the Central Act” the provisions of any other State law overlapping on
the area covered by the Central Act “will be deemed to have become
unenforceable…”. The argument that the State legislature can stipulate
norms of higher standards even in those areas which are covered by the
AICTE is clearly rejected by this Court.
34. The question whether the State Government as a matter of policy, can
decline to grant approval/permission for the establishment of a new
engineering college in view of the perception of the State Government that
the opening of new colleges will not be in the interest of the students and
employment, fell for consideration of this Court in Jaya Gokul Educational
Trust v. Commissioner & Secretary to Government Higher Education
Department, Thiruvanathapuram, Kerala State and Another, (2000) 5 SCC 231.
This Court held that the State could not have any policy outside the AICTE
Act and indeed if it had a policy, it should have placed the same before
the AICTE and that too before the latter granted permission.
35. The question of the authority of a University to grant or decline
affiliation squarely fell for consideration before this Court in Bhartia
Education Society v. State of H.P., (2011) 4 SCC 527. The case arose under
the National Council for Teachers Education Act, 1993 (hereinafter referred
to as “NCTE Act") the scheme of which is also identical to the AICTE Act.
This Court held as follows:-
“19. … On the other hand, “recognition” is the licence to the institution
to offer a course or training in teacher education. Prior to the NCTE
Act, in the absence of an apex body to plan and coordinate maintenance of
the norms and standards in the teacher education system, Government and
universities/boards. After the enactment of the NCTE Act, the functions
of NCTE as “recognising authority” and the examining bodies as “affiliating
authorities” became crystallised, though their functions overlap on several
issues. The NCTE Act recognises the role of examining bodies in their
sphere of activity.
36. This Court examined the scope of Section 16 of the NCTE Act which
prohibited the grant of affiliation by any “examining body” - (a
University) to any institution conducting a course for training people for
the occupation of teaching unless such institution obtained recognition
from the competent authority under the NCTE Act. Though, this Court made
it clear that the “examining body” (University) does not have any
discretion to refuse affiliation with reference to any of the factors which
ought to be considered by NCTE while granting recognition, recognised that
the “examining body” has the authority to demand compliance with its norms
in a limited area regarding the “eligibility of the candidates” and “manner
of admission” of students etc.
37. It was further held :-
“22. … For example, NCTE is required to satisfy itself about the adequate
financial resources, accommodation, library, qualified staff, and
laboratory required for proper functioning of an institution for a course
or training in teacher education. Therefore, when recognition is granted
by NCTE, it is implied that NCTE has satisfied itself on those aspects.
Consequently, the examining body may not refuse affiliation on the ground
that the institution does not have adequate financial resources,
accommodation, library, qualified staff, or laboratory required for proper
functioning of the institution. But this does not mean that the examining
body cannot require compliance with its own requirements in regard to
eligibility of candidates for admissions to courses or manner of admission
of students or other areas falling within the sphere of the State
Government and/or the examining body.”
At para 24, this Court indicated the areas where the “examining body” can
stipulate norms, the non-compliance with which norms authorise the
examining body to cancel the affiliation.
“24. The examining body can therefore impose its own requirements in
regard to eligibility of students for admission to a course in addition to
those prescribed by NCTE. The State Government and the examining body may
also regulate the manner of admissions. As a consequence, if there is any
irregularity in admissions or violation of the eligibility criteria
prescribed by the examining body or any irregularity with reference to any
of the matters regulated and governed by the examining body, the examining
body may cancel the affiliation irrespective of the fact that the
institution continues to enjoy the recognition of NCTE. Sub-section (6)
of Section 14 cannot be interpreted in a manner so as to make the process
of affiliation, an automatic rubber-stamping consequent upon recognition,
without any kind of discretion in the examining body to examine whether the
institution deserves affiliation or not, independent of the recognition.”
38. Similarly, under the scheme of the 1987 Act, as noticed by this Court
in para 30 of the Adhiyaman Educational & Research Institute case (supra),
under Section 10 of the Central Act, the Council is entrusted with the
power to lay down norms and standards for courses, curricula, staff
pattern, staff qualification, assessment and examination, fixing norms and
guidelines for charging tuition fees etc. and further held that in these
matters the University will have no authority.
39. The respondents heavily relied upon the last sentence of para 24 of
the decision in Bhartia Education Society (supra) (extracted earlier) to
assert that the respondents still have the necessary authority to grant or
decline affiliation.
40. We are of the opinion that the respondents are reading that sentence
out of the context. The judgment was very clear as to the areas which are
exclusively within the jurisdiction of the NCTE whose satisfaction
regarding the compliance with the standards prescribed by it in those areas
is final and the areas where the “examining body” has authority to lay down
its own norms (such as eligibility of the students for admission to a
course and the manner of admission).
41. We apply the principles of law mentioned above to the facts of the
present case. The various objections which (according to the respondent)
formed the basis for declining affiliation to the first petitioner
institution are contained in the communication dated 26.4.2013 which was
extracted in detail at para 26 (supra).
42. An examination of all the objections mentioned in the said
communication would reveal that each one of those objections squarely fall
within the sweep of one or the other areas which only the AICTE has the
exclusive jurisdiction to deal with. None of them are demonstrated before
us to be matters falling within the area legally falling within the domain
of the respondents. AICTE, on inspection of the Ist petitioner college
reported that the Ist petitioner college fulfils all the conditions
prescribed by the norms and standards laid down by AICTE. The respondents
did not make any specific assertion that such a report of the AICTE is
factually incorrect. Assuming for the sake of argument that, in the
opinion of the respondents, the petitioner college has not in fact
fulfilled any one of the conditions required under the norms specified by
the AICTE, the only course of action available for the respondents is to
bring the shortcomings noticed by them to the notice of the AICTE and seek
appropriate action against the petitioner college.[6]
43. We are, therefore, of the opinion that the decision of the respondent
not to grant the affiliation to the first petitioner college is wholly
untenable and is required to be set aside. The same is accordingly set
aside. Since the respondent did not decline the affiliation to the first
petitioner college either on the ground that the petitioner college is
admitting wholly ineligible students as per the norms stipulated by the
respondent University or that the admission procedure prescribed by the
respondents is not being complied with by the petitioners or on any other
ground that the petitioners violated any one of the stipulations made by
the University which the University is legally competent to make, we have
no option but to direct the respondents to grant affiliation to the
petitioner college. The operative portion of the judgment of this Court
has already been pronounced on 01.9.2014. Therefore, we are not
reiterating the same.
EPILOGUE
44. We are sorry to say that in the entire writ petition, we did not find
any information whether the GDR Educational Society is a body
recognized/registered under any enactment. If it is recognized, what is
the relevant enactment under which the same is registered? So-called first
petitioner has no existence in the eye of law and is not capable of suing
or being sued, though the second petitioner is a natural person who is
capable of suing and being sued. The bold assertion that the impugned
action is violative of Article 19(1)(g) of the Constitution made in the
petition is a highly doubtful assertion vis-à-vis both the petitioners.
The rights under Article 19 are only guaranteed to the citizens. The so-
called first petitioner cannot be a citizen, not even a person. Whether
the right asserted by the second petitioner under Article 19 is a right to
practise any profession or to carry on any occupation, trade or business is
not known. No arguments are advanced on either side. Modern lawyers do
not trouble themselves with such questions! Any judge asking these
questions perhaps is considered “not sensitive to the public interest”!
However, the whole exercise undertaken by the respondent is certainly
violative of Article 14 of the Constitution and, therefore, we have
examined the issue.
45. The writ petition stands disposed off accordingly.
………………………….J.
(J.
Chelameswar)
.……………………..….J.
(A.K. Sikri)
New Delhi;
September 25, 2014
-----------------------
[1] Section 10. Functions of the Council. It shall be the duty of the
Council to take all such steps as it may think fit for ensuring coordinated
and integrated development of technical education and maintenance of
standards and for the purposes for performing its functions under this Act,
the Council may-
(k) grant approval for starting new technical institutions and for
introduction of new courses of programmes in consultation with the agencies
concerned.
[2] & 3a Unfortunately, the details of the Society – whether it is
registered Society or not, if registered under what law it is registered –
are not specified in the writ petition. (It is highly doubtful whether a
legal proceeding in the name of a College is maintainable. Modern lawyers
appearing on either side in such litigation do not trouble themselves with
such questions and Judges who ask such questions are considered not
sensitive to the “public interest”!)
[3] 1. Mechanical, 2. Civil, 3. Electrical & Electronics , 4.
Electrical and 5. Computer Science & Engineering
[4] Since none of the applicant institutions fulfil the AICTE norms as
pointed out in the inspection reports and admission made in the compliance
affidavits of the existing of deficiencies, the affiliation for academic
session 2013-14 for new college, new courses and increase in intake is
liable to be refused. However, for the current courses in the existing
colleges affiliation is recommended.
[5] In the light of the Order of Hon’ble High Court dated 28th June
2013, and the submission of documents fulfilling the shortcomings as well
as the undertaking in this regard, affiliation for the academic session
2013-14 is hereby granted for the following courses with following intake
capacity.
Computer Science & Engineering – 60, Mechanical Engineering – 60,
Electrical Engineering – 60, Electrical & Electronics Engineering – 60; and
Civil Engineering – 60. (Total: 300)
The above affiliation is subject to approval by University Executive
Council.
[6] Jaya Gokul Educational Trust Vs. Commissioner & Secretary to
Government Higher Education Department, Thiruvanathapuram, Kerala State and
Another [(2000) 5 SCC 231] - “27……Once that procedure laid down in the
AICTE Act and Regulations had been followed under Regulation 8(4), and the
Central Task Force had also given its favourable recommendations, there was
no scope for any further objection or approval by the State. We may
however add that if thereafter, any fresh facts came to light after an
approval was granted by AICTE or if the State felt that some conditions
attached to the permission and required by AICTE to be complied with, were
not complied with, then the State Government could always write to AICTE,
to enable the latter to take appropriate action.”
-----------------------
24
By another communication dated 01.7.2014, which was received by the
petitioner on 09.7.2014, the University informed the second petitioner as
follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.05.2014, the
Executive Council of the University met on 11.06.2014 and a majority
decision was taken to disapprove the provisional affiliation granted to
Rungta Engineering College, Bhilai on 17.07.2013. Now, the status of
Rungta Engineering College, Bhilai stands “Dis-affiliated” for the academic
session 2013-14.
The above has been communicated to you vide letter no.1109 dated 19th June
2014. The application for 2014-15 is an extension of affiliation to the
College. The decision taken in the Executive Council on 11.06.2014 was to
dis-affiliate the College, therefore the extension of 14-15 does not arise
as the College has already been dis-affiliated.”
(emphasis supplied)
24. Hence the writ petition.=
An examination of all the objections mentioned in the said
communication would reveal that each one of those objections squarely fall
within the sweep of one or the other areas which only the AICTE has the
exclusive jurisdiction to deal with.
None of them are demonstrated before
us to be matters falling within the area legally falling within the domain
of the respondents.
AICTE, on inspection of the Ist petitioner college
reported that the Ist petitioner college fulfils all the conditions
prescribed by the norms and standards laid down by AICTE.
The respondents
did not make any specific assertion that such a report of the AICTE is
factually incorrect.
Assuming for the sake of argument that, in the
opinion of the respondents, the petitioner college has not in fact
fulfilled any one of the conditions required under the norms specified by
the AICTE, the only course of action available for the respondents is to
bring the shortcomings noticed by them to the notice of the AICTE and seek
appropriate action against the petitioner college.[6]
43. We are, therefore, of the opinion that the decision of the respondent
not to grant the affiliation to the first petitioner college is wholly
untenable and is required to be set aside.
The same is accordingly set aside.
Since the respondent did not decline the affiliation to the first
petitioner college either on the ground that the petitioner college is
admitting wholly ineligible students as per the norms stipulated by the
respondent University or that the admission procedure prescribed by the
respondents is not being complied with by the petitioners or on any other
ground that the petitioners violated any one of the stipulations made by
the University which the University is legally competent to make,
we have
no option but to direct the respondents to grant affiliation to the
petitioner college.
The operative portion of the judgment of this Court
has already been pronounced on 01.9.2014. Therefore, we are not
reiterating the same.
EPILOGUE
44. We are sorry to say that in the entire writ petition, we did not find
any information
whether the GDR Educational Society is a body
recognized/registered under any enactment. If it is recognized, what is
the relevant enactment under which the same is registered? So-called first
petitioner has no existence in the eye of law and is not capable of suing
or being sued, though the second petitioner is a natural person who is
capable of suing and being sued.
The bold assertion that the impugned
action is violative of Article 19(1)(g) of the Constitution made in the
petition is a highly doubtful assertion vis-à-vis both the petitioners.
The rights under Article 19 are only guaranteed to the citizens.
The so-
called first petitioner cannot be a citizen, not even a person. Whether
the right asserted by the second petitioner under Article 19 is a right to
practise any profession or to carry on any occupation, trade or business is
not known. No arguments are advanced on either side. Modern lawyers do
not trouble themselves with such questions!
Any judge asking these
questions perhaps is considered “not sensitive to the public interest”!
However, the whole exercise undertaken by the respondent is certainly
violative of Article 14 of the Constitution and, therefore, we have
examined the issue.
45. The writ petition stands disposed off accordingly.
2014- Sep.Month -http://judis.nic.in/supremecourt/imgst.aspx?filename=41964
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.653 OF 2014
Rungta Engineering College, Bhilai
& Another … Petitioners
Versus
Chhattisgarh Swami Vivekanand
Technical University & Another … Respondents
J U D G M E N T
CHELAMESWAR, J.
1. A Society called GDR Educational Society claims to be running a
number of colleges. It is claimed in the writ petition that the ‘first
petitioner’ is one of such colleges and the second petitioner is a
Secretary of the said Educational Society.
2. The All India Council for Technical Education (hereinafter referred
to as “AICTE”) is a body constituted under Section 3 of the All India
Council for Technical Education Act, 1987 (hereinafter referred to as “1987
Act”). The AICTE was established for “proper planning and co-ordinated
development of the technical education system throughout the country, the
promotion of qualitative improvement of such education in relation to
planned quantitative growth and the regulation and proper maintenance of
norms and standards in the technical education system and for matters
connected therewith”.
3. One of the functions of the AICTE under Section 10(k)[1] of the said
Act is to grant approval for starting new ‘technical institutions’ and for
introduction of new courses or programmes in consultation with technical
agencies.
4. “Technical Institution” is defined under Section 2(h) 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.”
5. “Technical Education” is defined under Section 2(h) as follows:
“2(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.”
6. AICTE granted approval by its proceedings dated 07.04.2013 in favour
of a society called the GDR Educational Society[2] to conduct five
different courses of engineering[3] indicated in the said proceedings for
the academic year 2013-2014 in the “1st petitioner college”3a which has
been established by the said society with a total intake capacity of 300
students.
7. It is stated in the communication granting approval dated 07.4.2013
as follows:
“The approval is valid for two years from the date of issue of this letter
for getting affiliation with respective University and fulfilling State
Govt. requirements for admission. If institution is unable to start in
the academic session 2013-14 due to reason mentioned above, the institution
will have to apply On-line on AICTE web portal in the next academic session
for continuation of approved intake 2013-14.
The Society/Trust/Institution shall obtain necessary affiliation/permission
from the concerned affiliating University as per the prescribed schedule of
the University/Admission authority etc.”
8. The Chhattisgarh Swami Vivekanand Technical University is established
by The Chhattisgarh Swami Vivekanand Technical University Act, 2004 (25 of
2004) (hereinafter referred to as the “2004 Act”). The preamble of the Act
indicates the purpose of the Act:
“An Act to establish and incorporate a University of Technology for the
purpose of ensuring systematic, efficient and qualitative education in
engineering and technological subjects including Architecture and Pharmacy
at Research, Post Graduate Degree and Diploma level and to provide for
matters connected therewith or incidental thereto”.
9. The University is constituted under Section 3 of the Act which
declares that such University shall have perpetual succession, common seal
and is capable of suing and being sued by its name. The objectives of the
University are specified under Section 4. Section 4(13) stipulates that
one of the objectives is “to admit to its privileges colleges or
polytechnics not maintained by the University, to withdraw all or any of
these privileges and to take over the management of Colleges or
Polytechnics in the manner and under conditions prescribes by the Statute
or the Ordinance”.
10. Section 6 declares that the jurisdiction of the University shall
extend to the whole of the State of Chhattisgarh. Section 6(2) stipulates
that “notwithstanding anything contained in any other law for the time
being in force, any College or Polytechnic or institution imparting
Technical Education and situated within the limits of the area specified
under sub-section (1) shall, with effect from such date as may be notified
in this behalf by the State Government, be deemed to be associated with and
admitted to the privileges of the University and shall cease to be
associated with other University or Board in the manner prescribed by
Statute or Regulation”. Obviously, any institution imparting technical
education as defined under Section 2(26) of the Act situated within the
limits of State of Chhattisgarh is deemed to be associated with and
admitted to privileges of the University.
11. Section 23 of the 2004 Act stipulates that the Executive Council, a
body constituted under Section 22 of the Act, shall be the supreme
authority of the University with various powers and duties specified under
Section 23. One of them is “to admit Colleges or Polytechnics to the
privileges of the University on the recommendation of the Academic Council
and subject to the provisions of this Act and Statute and to withdraw any
of the privileges and to take over the management of the College or
Polytechnic in the manner and under conditions prescribed by the Statute
and Ordinance”.
12. In view of the requirement of securing the affiliation of the
concerned University as stipulated by the order of approval (07.04.2013) by
AICTE, it appears that an application was made to the said University to
grant affiliation to the first petitioner college which was rejected in a
meeting of the Executive Council of the University dated 13.5.2013[4].
13. Aggrieved by such decision, a Writ Petition (C) No.847 of 2013 came
to be filed by the petitioners herein before the High Court of Chhattisgarh
at Bilaspur. The said writ petition was disposed of by an order dated
28.6.2013 directing consideration of the representation to be made by the
petitioners after giving them an opportunity of being heard in person. The
operative portion of the order is as follows:
“Shri Shrivastava, learned counsel appearing for the respondent/university
submits that he has no objection if a representation is made, and in the
event, a representation is made, the same will be considered in accordance
with law as expeditiously as possible. He further submits that the
petitioner may also be heard in person, if so desired by the petitioner.
In view of the above submissions made by learned counsel appearing for the
parties, if the petitioners makes a representation with a period of one
week from today, as agreed and consented by both the parties, the
petitioner may appear before the authorities of the respondent/university.
The respondent/university is also directed to consider and decide the
representation within a period of two weeks from the date of receipt of the
representation, in accordance with law, on its own merit and perspective.”
14. The petitioners submitted a representation dated 01.7.2013. A
communication dated 17.7.2013 was sent to the petitioners signed by the
Registrar of the University purporting to grant affiliation for the
academic session 2013-14 for the various courses specified therein for
total intake capacity of 300 students with a rider that such affiliation is
subject to approval of the Executive Council of the University[5]. It is
the specific case of the University that such a decision was taken by the
Vice-Chancellor in exercise of the powers under Section 14(4) read with
Section 23(12) of the 2004 Act. Pursuant to such affiliation order, the
petitioners admitted more than some 200 students.
15. On 28.12.2013, the petitioners once again applied for affiliation for
the academic session 2014-15.
16. On 03.3.2014, the 31st meeting of the Executive Council of the
University was held wherein the provisional affiliation granted on
17.7.2013 by the Vice-Chancellor was considered. The Executive Council
took note of the fact that in an earlier meeting dated 10.8.2013 the
Executive Council had referred the case to the Advocate General for opinion
and as opinion was not forthcoming for various reasons, the Executive
Council took a decision as follows:
“The conditional affiliation granted vide letter No.CSVTU/Affil/2013-
2014/2013/2963 dated 17.7.2013 should be withdrawn.
Students admitted may be transferred to other colleges in a legal, lawful
and rationale manner.
The Executive Council unanimously took a decision to place the matter
before the Hon’ble Chancellor for his final decision in the matter.”
17. The question of ratification of the affiliation granted to the first
petitioner College once again came for consideration in 33rd meeting of the
Executive Council on 29/30.4.2014. Once again it was decided:
“Based on the majority decision proposal of ratification of affiliation
stands turned down, taking into account the aforesaid facts. Keeping the
future of admitted students, a letter be written to the Director-Technical
Education and Secretary-Technical Education, to transfer the students to
other colleges where seats are vacant.”
The said decision was communicated to the petitioners herein on 01.5.2014.
18. Aggrieved by the said decision, the petitioners filed Writ Petition
No.423 of 2014 before this Court. On 12.5.2014, this Court issued notice
on the said writ petition. On 19.5.2014, the said writ petition was
disposed off. The operative portion of the said order reads as follows:
“Be that as it may, it is agreed that the Executive Council shall look into
the matter again in so far as academic year 2013-2014 is concerned, we
remit the case back to the Executive Council to take a decision afresh
after giving due opportunity to the petitioners to present their case
before the Executive Council and pass reasoned order thereon within four
weeks.
As far as academic year 2014-2015 is concerned, it is pointed out by Mr.
Varma, learned senior counsel that the application of the petitioner –
College along with the applications submitted by other colleges for
affiliation are already under consideration.
In view thereof, in so far as academic year 2014-2015 is concerned, the
Executive Council shall take a decision in the aforesaid manner by 15th
July 2014 after following the due procedure.”
19. It can be seen from the order that it is an agreed order to the
effect that the Executive Council will once again examine the question of
granting affiliation to the first petitioner college insofar as it pertains
to the academic year 2013-2014. Coming to the question of affiliation for
the academic year 2014-2015, this Court directed the Executive Council to
take a decision by 15.7.2014.
20. Pursuant to the said order, the petitioner submitted another
representation on 23.5.2014 praying that a decision be taken on the issue
of grant of affiliation for the academic year 2014-2015.
21. On 04.6.2014, AICTE granted approval for the academic year 2014-2015
to conduct seven different courses (five graduate and two diploma courses)
with a total intake of 540 students, the details of which may not be
necessary for the present purpose.
22. On 11.6.2014, an opportunity for oral hearing was granted by the
Executive Council in its 36th meeting. Finally, by a communication dated
19.6.2014, the University informed the second petitioner herein that the
Executive Council of the University in its meeting held dated 11.6.2014
took a decision by majority to disapprove the provisional affiliation
granted on 17.7.2013 to the first petitioner. The said communication reads
as follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.5.2014, the
Executive Council of the University met o 11.6.2014, where a majority
decision was taken to disapprove the provisional affiliation granted on
17.7.2013 to Rungta Engineering College, Bhilai. Therefore, the status of
Runga Engineering College, Bhilai stands “dis-affiliated” for the academic
session 2013-14. A copy of the minutes of the Executive Council, citing
reasons for disapproving the provisional affiliation granted to Rungta
Engineering College, Bhilai, is enclosed for your kind information.”
23. By another communication dated 01.7.2014, which was received by the
petitioner on 09.7.2014, the University informed the second petitioner as
follows:
“Pursuant to the Order of the Hon’ble Supreme Court dated 19.05.2014, the
Executive Council of the University met on 11.06.2014 and a majority
decision was taken to disapprove the provisional affiliation granted to
Rungta Engineering College, Bhilai on 17.07.2013. Now, the status of
Rungta Engineering College, Bhilai stands “Dis-affiliated” for the academic
session 2013-14.
The above has been communicated to you vide letter no.1109 dated 19th June
2014. The application for 2014-15 is an extension of affiliation to the
College. The decision taken in the Executive Council on 11.06.2014 was to
dis-affiliate the College, therefore the extension of 14-15 does not arise
as the College has already been dis-affiliated.”
(emphasis supplied)
24. Hence the writ petition.
25. The petitioners challenged the impugned order on the ground that it
violates Articles 14 and 19(1)(g) of the Constitution of India. It is also
argued by the learned counsel for the petitioners that the respondents
decided not to grant affiliation on the basis of considerations which are
factually incorrect and areas which are not within their legal competence
to exercise.
26. On the other hand, the respondent resisted the writ petition on the
ground that the first petitioner College does not satisfy various
conditions contemplated under AICTE norms and also Statute 19 of the
University. It is the case of the first respondent University that by a
communication dated 26.4.2013 the second petitioner was informed of the
various shortcomings. The relevant portion of the communication reads as
follows:
“Based on the recommendations of the Inspection Committee constituted by
Chhattisgarh Swami Vivekanand Technical University, Bhilai, for the
affiliation of courses of your Institution, the institution has been found
to be suffering from the following deficiencies:
Teaching staff (Assistant professor, Associate Professor, Professor)
appointed on adhoc basis be selected through the University Selection
Committee as per statute 19 of CSVTU and as per AICTE norms. Selection of
process be initiated at the earliest to maintain Cadre ratio as per norms.
Principal be appointed as per Statute-19 of the University.
Student teacher ratio be improved as per norms.
Govt. NoCs to conduct 1st year classes for the session 2013-14 be
submitted.
Journals be procured in the Library as per norms. E-Journals in digital
library and other books related to general proficiency be procured.
Proper timing of librarian is needed as proper entry of books in accession
register be maintained.
Safety measures be installed at Structure, Library, Labs and Workshop.
Internet connectivity in Computer lab be improved.
Separate strong room be provided in exam control room.
Flow charts, lab manuals of laboratory & layout of lab be displayed.
Lux meter be used to check the illumination in the different areas like
Class rooms & laboratory of the campus.
Playground facility be improved.
Licence software & communication skill be developed as per norms.
List of experiments as per University scheme be displayed on the notice
boards with signature of Prof. I/c and lab attendant.
All weather roads in general be improved and set back distance of the
boundaries be maintained as per municipal bye building.
Anti ragging cell, women’s cell and counselling cell be formed & displayed
in the campus.
Demarcation of parking, Canteen & other amenities be improved.
Anvil accessories of the workshop be made available.
Gas pipe line be provided with commercial gas cylinder along with shower be
provided in the Chemistry lab.
Seating arrangement like stool be provided for the students in the labs.
Supporting laboratory staff be appointed as per norms & working hours of
library be displayed.
Specifying class rooms, Labs, Library, Computer centres, Drawing Hall,
Workshop, Seminar hall on the approved building plans, floorwise, (on
photocopies of the original Approved building Plans without any reductions
in size) be submitted to the University.
Sports fee if any be submitted.
Processing fee of Rs.30,000/- be submitted.
An affidavit on non judicial stamp paper of Rs.50/- by
Trust/Society/Principal regarding the steps taken for the Compliance of
rectifying of the above deficiencies is to be submitted to the University
latest by 29.4.2013.”
27. In response to the said communication, the GDR Educational Society
sent a reply dated 29.4.2013, the substance of which is that all the
alleged shortcomings pointed out in the communication of the University
dated 26.4.2013 are either without any factual basis or had in fact been
complied with.
28. In the light of sharp difference of opinion between the petitioners
and the first respondent University, during the pendency of the present
writ petition, we thought it fit to call upon AICTE by the order dated
08.8.2014 to “inspect the petitioner’s College and submit a report whether
the petitioner has complied with all the requirements of law”. In view of
the said direction, AICTE conducted inspection and reported. The substance
of which is that the petitioner College has complied with all the
requirements of law.
29. The respondent University and the State very vehemently argued that
notwithstanding the opinion expressed by AICTE there are still some
shortcomings examined in the light of the norms and standards of the
University for granting affiliation to any institution imparting technical
education.
30. It is argued that the University, which is a statutory body brought
into existence pursuant to an enactment made by the legislative assembly of
the State of Chhattisgarh, is obliged to discharge the duties enjoined upon
it by the 2004 Act and it cannot be prevented from discharging its
obligation of being satisfied that the petitioner institution qualifies for
affiliation in terms of the norms and standards prescribed by it in
discharge of its statutory powers and compelled to grant affiliation
notwithstanding the fact that the University is not satisfied with the
eligibility of the first petitioner College for affiliation.
31. The authority of the States and the Universities established by the
States to regulate the establishment and running of institutions imparting
technical education has been a subject matter of a long debate in various
judgments of this Court.
32. Educational institutions imparting technical education are amenable
to the control of AICTE under the 1987 Act in certain aspects and the
regulatory authority of the State, and Universities established by or under
a legislation of the State, in certain other aspects.
33. This Court in State of T.N. and Another v. Adhiyaman Educational &
Research Institute and Others, (1995) 4 SCC 104, after considering the
constitutional scheme of various entries of List I and List III of the
Seventh Schedule and the language of the 1987 Act and the Madras University
Act concluded that the 1987 Act is referable to Entry 66 of List I. The
field of “determination of standards in institutions for higher education,
or research and scientific and technical institutions” is exclusive to the
Parliament and any law made by the Parliament referable to the said field
is paramount. The 1987 Act empowers the AICTE, a body constituted under the
said Act “to evolve suitable performance appraisal systems incorporating
norms and mechanisms for maintaining accountability of the technical
institutions” and lay down “norms and standards for courses, curricula,
staff pattern, staff qualifications, assessment and examinations, fixing
norms and guidelines for charging tuition fee and other fees, granting
approval for starting new technical institutions or introducing new courses
or programmes”. This Court categorically held “Thus, so far as these
matters are concerned, in the case of the institutes imparting technical
education, 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”. Consequently, this Court held “after coming into operation
of the Central Act” the provisions of any other State law overlapping on
the area covered by the Central Act “will be deemed to have become
unenforceable…”. The argument that the State legislature can stipulate
norms of higher standards even in those areas which are covered by the
AICTE is clearly rejected by this Court.
34. The question whether the State Government as a matter of policy, can
decline to grant approval/permission for the establishment of a new
engineering college in view of the perception of the State Government that
the opening of new colleges will not be in the interest of the students and
employment, fell for consideration of this Court in Jaya Gokul Educational
Trust v. Commissioner & Secretary to Government Higher Education
Department, Thiruvanathapuram, Kerala State and Another, (2000) 5 SCC 231.
This Court held that the State could not have any policy outside the AICTE
Act and indeed if it had a policy, it should have placed the same before
the AICTE and that too before the latter granted permission.
35. The question of the authority of a University to grant or decline
affiliation squarely fell for consideration before this Court in Bhartia
Education Society v. State of H.P., (2011) 4 SCC 527. The case arose under
the National Council for Teachers Education Act, 1993 (hereinafter referred
to as “NCTE Act") the scheme of which is also identical to the AICTE Act.
This Court held as follows:-
“19. … On the other hand, “recognition” is the licence to the institution
to offer a course or training in teacher education. Prior to the NCTE
Act, in the absence of an apex body to plan and coordinate maintenance of
the norms and standards in the teacher education system, Government and
universities/boards. After the enactment of the NCTE Act, the functions
of NCTE as “recognising authority” and the examining bodies as “affiliating
authorities” became crystallised, though their functions overlap on several
issues. The NCTE Act recognises the role of examining bodies in their
sphere of activity.
36. This Court examined the scope of Section 16 of the NCTE Act which
prohibited the grant of affiliation by any “examining body” - (a
University) to any institution conducting a course for training people for
the occupation of teaching unless such institution obtained recognition
from the competent authority under the NCTE Act. Though, this Court made
it clear that the “examining body” (University) does not have any
discretion to refuse affiliation with reference to any of the factors which
ought to be considered by NCTE while granting recognition, recognised that
the “examining body” has the authority to demand compliance with its norms
in a limited area regarding the “eligibility of the candidates” and “manner
of admission” of students etc.
37. It was further held :-
“22. … For example, NCTE is required to satisfy itself about the adequate
financial resources, accommodation, library, qualified staff, and
laboratory required for proper functioning of an institution for a course
or training in teacher education. Therefore, when recognition is granted
by NCTE, it is implied that NCTE has satisfied itself on those aspects.
Consequently, the examining body may not refuse affiliation on the ground
that the institution does not have adequate financial resources,
accommodation, library, qualified staff, or laboratory required for proper
functioning of the institution. But this does not mean that the examining
body cannot require compliance with its own requirements in regard to
eligibility of candidates for admissions to courses or manner of admission
of students or other areas falling within the sphere of the State
Government and/or the examining body.”
At para 24, this Court indicated the areas where the “examining body” can
stipulate norms, the non-compliance with which norms authorise the
examining body to cancel the affiliation.
“24. The examining body can therefore impose its own requirements in
regard to eligibility of students for admission to a course in addition to
those prescribed by NCTE. The State Government and the examining body may
also regulate the manner of admissions. As a consequence, if there is any
irregularity in admissions or violation of the eligibility criteria
prescribed by the examining body or any irregularity with reference to any
of the matters regulated and governed by the examining body, the examining
body may cancel the affiliation irrespective of the fact that the
institution continues to enjoy the recognition of NCTE. Sub-section (6)
of Section 14 cannot be interpreted in a manner so as to make the process
of affiliation, an automatic rubber-stamping consequent upon recognition,
without any kind of discretion in the examining body to examine whether the
institution deserves affiliation or not, independent of the recognition.”
38. Similarly, under the scheme of the 1987 Act, as noticed by this Court
in para 30 of the Adhiyaman Educational & Research Institute case (supra),
under Section 10 of the Central Act, the Council is entrusted with the
power to lay down norms and standards for courses, curricula, staff
pattern, staff qualification, assessment and examination, fixing norms and
guidelines for charging tuition fees etc. and further held that in these
matters the University will have no authority.
39. The respondents heavily relied upon the last sentence of para 24 of
the decision in Bhartia Education Society (supra) (extracted earlier) to
assert that the respondents still have the necessary authority to grant or
decline affiliation.
40. We are of the opinion that the respondents are reading that sentence
out of the context. The judgment was very clear as to the areas which are
exclusively within the jurisdiction of the NCTE whose satisfaction
regarding the compliance with the standards prescribed by it in those areas
is final and the areas where the “examining body” has authority to lay down
its own norms (such as eligibility of the students for admission to a
course and the manner of admission).
41. We apply the principles of law mentioned above to the facts of the
present case. The various objections which (according to the respondent)
formed the basis for declining affiliation to the first petitioner
institution are contained in the communication dated 26.4.2013 which was
extracted in detail at para 26 (supra).
42. An examination of all the objections mentioned in the said
communication would reveal that each one of those objections squarely fall
within the sweep of one or the other areas which only the AICTE has the
exclusive jurisdiction to deal with. None of them are demonstrated before
us to be matters falling within the area legally falling within the domain
of the respondents. AICTE, on inspection of the Ist petitioner college
reported that the Ist petitioner college fulfils all the conditions
prescribed by the norms and standards laid down by AICTE. The respondents
did not make any specific assertion that such a report of the AICTE is
factually incorrect. Assuming for the sake of argument that, in the
opinion of the respondents, the petitioner college has not in fact
fulfilled any one of the conditions required under the norms specified by
the AICTE, the only course of action available for the respondents is to
bring the shortcomings noticed by them to the notice of the AICTE and seek
appropriate action against the petitioner college.[6]
43. We are, therefore, of the opinion that the decision of the respondent
not to grant the affiliation to the first petitioner college is wholly
untenable and is required to be set aside. The same is accordingly set
aside. Since the respondent did not decline the affiliation to the first
petitioner college either on the ground that the petitioner college is
admitting wholly ineligible students as per the norms stipulated by the
respondent University or that the admission procedure prescribed by the
respondents is not being complied with by the petitioners or on any other
ground that the petitioners violated any one of the stipulations made by
the University which the University is legally competent to make, we have
no option but to direct the respondents to grant affiliation to the
petitioner college. The operative portion of the judgment of this Court
has already been pronounced on 01.9.2014. Therefore, we are not
reiterating the same.
EPILOGUE
44. We are sorry to say that in the entire writ petition, we did not find
any information whether the GDR Educational Society is a body
recognized/registered under any enactment. If it is recognized, what is
the relevant enactment under which the same is registered? So-called first
petitioner has no existence in the eye of law and is not capable of suing
or being sued, though the second petitioner is a natural person who is
capable of suing and being sued. The bold assertion that the impugned
action is violative of Article 19(1)(g) of the Constitution made in the
petition is a highly doubtful assertion vis-à-vis both the petitioners.
The rights under Article 19 are only guaranteed to the citizens. The so-
called first petitioner cannot be a citizen, not even a person. Whether
the right asserted by the second petitioner under Article 19 is a right to
practise any profession or to carry on any occupation, trade or business is
not known. No arguments are advanced on either side. Modern lawyers do
not trouble themselves with such questions! Any judge asking these
questions perhaps is considered “not sensitive to the public interest”!
However, the whole exercise undertaken by the respondent is certainly
violative of Article 14 of the Constitution and, therefore, we have
examined the issue.
45. The writ petition stands disposed off accordingly.
………………………….J.
(J.
Chelameswar)
.……………………..….J.
(A.K. Sikri)
New Delhi;
September 25, 2014
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[1] Section 10. Functions of the Council. It shall be the duty of the
Council to take all such steps as it may think fit for ensuring coordinated
and integrated development of technical education and maintenance of
standards and for the purposes for performing its functions under this Act,
the Council may-
(k) grant approval for starting new technical institutions and for
introduction of new courses of programmes in consultation with the agencies
concerned.
[2] & 3a Unfortunately, the details of the Society – whether it is
registered Society or not, if registered under what law it is registered –
are not specified in the writ petition. (It is highly doubtful whether a
legal proceeding in the name of a College is maintainable. Modern lawyers
appearing on either side in such litigation do not trouble themselves with
such questions and Judges who ask such questions are considered not
sensitive to the “public interest”!)
[3] 1. Mechanical, 2. Civil, 3. Electrical & Electronics , 4.
Electrical and 5. Computer Science & Engineering
[4] Since none of the applicant institutions fulfil the AICTE norms as
pointed out in the inspection reports and admission made in the compliance
affidavits of the existing of deficiencies, the affiliation for academic
session 2013-14 for new college, new courses and increase in intake is
liable to be refused. However, for the current courses in the existing
colleges affiliation is recommended.
[5] In the light of the Order of Hon’ble High Court dated 28th June
2013, and the submission of documents fulfilling the shortcomings as well
as the undertaking in this regard, affiliation for the academic session
2013-14 is hereby granted for the following courses with following intake
capacity.
Computer Science & Engineering – 60, Mechanical Engineering – 60,
Electrical Engineering – 60, Electrical & Electronics Engineering – 60; and
Civil Engineering – 60. (Total: 300)
The above affiliation is subject to approval by University Executive
Council.
[6] Jaya Gokul Educational Trust Vs. Commissioner & Secretary to
Government Higher Education Department, Thiruvanathapuram, Kerala State and
Another [(2000) 5 SCC 231] - “27……Once that procedure laid down in the
AICTE Act and Regulations had been followed under Regulation 8(4), and the
Central Task Force had also given its favourable recommendations, there was
no scope for any further objection or approval by the State. We may
however add that if thereafter, any fresh facts came to light after an
approval was granted by AICTE or if the State felt that some conditions
attached to the permission and required by AICTE to be complied with, were
not complied with, then the State Government could always write to AICTE,
to enable the latter to take appropriate action.”
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