Supreme Court of India
G H APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY & ANR. versus JAI BHARATH COLLEGE OF MANAGEMENT AND ENGINEERING TECHNOLOGY & ORS. on 10 December 2020
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732
SUPREME COURT REPORTS
[2020] 13 S.C.R.
AAPJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY &ANR.
v.
JAI BHARATH COLLEGE OF MANAGEMENT ANDENGINEERING TECHNOLOGY & ORS.B
(Civil Appeal No. 4016 of 2020)
DECEMBER 10, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND V.RAMASUBRAMANIAN, JJ.]
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APJ Abdul Kalam Technological University Act, 2015:Purpose of enactment – Held: To regulate technical education inthe State of Kerala.
APJ Abdul Kalam Technological University Act, 2015: s.30(2)– Power of Syndicate to lay down norms for grant of affiliation forDadditional courses – Held: The source of power for the Syndicateto prescribe norms and standards for affiliation is s.30(2) – s.30(2)begins with the words “subject to the provisions of the Act and theStatutes” – So, if there is something in the Act or the Statutes whichregulates or controls the power of the Syndicate, then the SyndicateEmay be bound by such prescription – But if there is nothing in theAct/Statutes or if there are no Statutes at all, then it cannot be saidthat the power itself is unavailable – Therefore, the absence ofStatutes, till they were made for the first time on 07.08.2020, did notmean that the power under s.30(2) could not be exercised – Theabsence of the Statutes (till 07.08.2020) would only mean theFabsence of Statute-stipulated conditions and procedure foraffiliation, but not the absence of the very power of the Syndicateflowing out of s.30(2)(iii) – Thus, when the Statutes have notprescribed any conditions for affiliation but have left it to theSyndicate to take care of matters relating to affiliation, the functionGof the Syndicate to lay down norms and standards by virtue of thepowers conferred by s.30(2), is made free of any fetters – HighCourt was in error in holding that the resolutions passed by theSyndicate prescribing norms and standards for the grant ofaffiliation for additional courses were ultra vires the Act –Universities – Education/Educational Institutions.APJ Abdul KalamH
Technological University Act, 2015: s.14(6) – Whether High Courtwas correct in holding that in the absence of the Statutes, recoursewas available only to the Vice Chancellor under s.14(6) – Held:s.14(6) says that in the absence of the Statute, it is the Vice-Chancellor who has the power to regulate any matter which isrequired to be regulated by Statutes or Regulations – It cannot beinterpreted to mean that the Syndicate itself will be powerless in theabsence of the Statutes and that the Vice Chancellor will have thepower – In any case, the language of s.14(6) is such that the ViceChancellor may first regulate the matter by issuing directions andthereafter submit the same “as soon as may be” for the approval ofthe Board of Governors or other authority or body concerned – Byvirtue of s.30(2)(iii), the Syndicate can be taken to be the “otherauthority” referred to in s.14(6) – Therefore, it was not necessaryfor the Vice Chancellor to fall back upon s.14(6) on the groundthat there were no Statutes at that time – High Court erred in holdingthat in the absence of the Statutes, recourse was available only tothe Vice Chancellor under s.14(6), overlooking for a moment thatthe power under s.30(2)(iii) would not become otiose due to theabsence of the Statutes.
APJ Abdul Kalam Technological University Act, 2015: Roleof appellant-University vis-a-vis AICTE – Enhancement of normsand standards for admission as prescribed by AICTE – Held: Whileit is not open to the Universities to dilute the norms and standardsprescribed by AICTE, it is always open to the Universities to prescribeenhanced norms – Universities.
Universities: Power of Universities to incorporate anyadditional conditions for affiliation – Case laws discussed.
AICTE – Development in AICTE after 2012 – After the adventof AICTE Regulations, 2012, the applications for extension ofapprovals are processed by AICTE only online, merely on the basisof the self-disclosure made by the colleges in their onlineapplications – Though AICTE has reserved to itself the power toconduct inspections and take penal action against colleges for falsedeclarations, such penal action does not serve any purpose for thestudents who get admitted to colleges which have necessaryinfrastructure only on paper and not on site – The Regulations ofthe AICTE are silent as to how the students will get compensated, AB
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[2020] 13 S.C.R.
Awhen penal action is taken against colleges which host falseinformation online in their applications.
Allowing the appeal, the Court
HELD: 1.1 Section 63(2) deals with the grant of affiliationor recognition for additional courses to an affiliated college orBrecognized institution. This provision does not deal with the layingdown of norms and standards. Section 30(1) vests upon theSyndicate, the executive powers of the University, including thegeneral superintendence and control over the institutions of theUniversity. The source of power for the Syndicate to prescribeCnorms and standards for affiliation, is Section 30(2). Section 30(2)begins with the words “subject to the provisions of the Act andthe Statutes”. So, if there is something in the Act or the Statuteswhich regulates or controls the power of the Syndicate, then theSyndicate may be bound by such prescription. But if there isnothing in the Act/Statutes or if there are no Statutes at all, thenDit cannot be said that the power itself is unavailable. The powerof the Syndicate to propose norms and standards flows out of theAct and not out of the University Statutes. Therefore, the absenceof Statutes, till they were made for the first time on 07.08.2020,did not mean that the power under Section 30(2) could not haveEbeen exercised. [Paras 28, 34][749-E-F; 751-G-H; 752-C-E]
1.2 Section 42 of the Act which speaks about the issue ofStatutes and the matters for which provisions may be made in theStatutes, makes it clear that “the conditions and procedures foraffiliation of Colleges and for withdrawing the affiliation ofFcolleges”, is one of the matters that could be provided for in theStatutes. Therefore, the Statutes can provide for the conditionsand procedure for affiliation. The absence of the Statutes (till07.08.2020) would only mean the absence of Statute-stipulatedconditions and procedure for affiliation, but not the absence ofthe very power of the Syndicate flowing out of Section 30(2)(iii).GTherefore, it was not necessary for the Vice Chancellor to fallback upon Section 14(6) on the ground that there were no Statutesat that time. [Para 35][752-F-H]
1.3 Section 14(6) says that in the absence of a Statute, it isthe Vice Chancellor who has the power to regulate any matterwhich is required to be regulated by Statutes or Regulations. Itcannot be interpreted to mean that the Syndicate itself will bepowerless in the absence of the Statutes and that the ViceChancellor will have the power. In any case, the language ofSection 14(6) is such that the Vice Chancellor may first regulatethe matter by issuing directions and thereafter submit the same“as soon as may be” for the approval of the Board of Governorsor other authority or body concerned. By virtue of Section30(2)(iii), the Syndicate can be taken to be the “other authority”referred to in Section 14(6). If that is done, it can be seen that itwas the Syndicate, chaired by the Vice Chancellor which took theimpugned decisions in its meetings and hence the prescriptionof norms by the Syndicate, chaired by the Vice Chancellor cannotbe said to be ultra vires the Act. [Para 36][753-A-D]
1.4 When the Statutes have not prescribed any conditionsfor affiliation but have left it to the Syndicate to take care ofmatters relating to affiliation, the function of the Syndicate to laydown norms and standards by virtue of the powers conferred bySection 30(2), is made free of any fetters. Therefore, the normsprescribed by the Syndicate in its meeting held on 24.06.2020under the Chairmanship of the Vice Chancellor could not havebeen taken exception to. After all, the norms which the Collegeshave objected to, merely seek to ensure that at least 50% of theoutgoing students had passed their respective courses and thatthe Institution should have the most recent academic audit overallscore of “Good”, apart from having an actual intake of more than50% of the sanctioned intake in the preceding three years on anaverage. The High Court was in error in holding on the first issuethat the resolutions passed by the Syndicate prescribing normsand standards for the grant of affiliation for additional courses,are ultra vires the Act. [Paras 38, 39, 40][754-B-C; C-D-; E-F]
2. The law is now fairly well settled that while it is not opento the Universities to dilute the norms and standards prescribedby AICTE, it is always open to the Universities to prescribeenhanced norms. [Para 47][756-G-H]
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A3.1 After the advent of AICTE Regulations, 2012, theapplications for extension of approvals are processed by AICTEonly online, merely on the basis of the self-disclosure made bythe colleges in their online applications. If all infrastructuralfacilities as prescribed by AICTE are found to be available onpaper (whether available at site or not), the AICTE grantsBextension of approval. Chapter II of the Approval ProcessHandbook for 2020-21 makes it clear that the extension ofapproval will be based on self-disclosure. Paragraph 13 of thecounter affidavit of the AICTE contains an extract of Clause2.15.4(b) of APH 2020-21, which confirms that the assessment isCbased on self-disclosure on AICTE web portal. [Paras 56, 57][760-D-E; G-H]
3.2 Though AICTE has reserved to itself the power toconduct inspections and take penal action against colleges forfalse declarations, such penal action does not mean anything andDdoes not serve any purpose for the students who get admitted tocolleges which have necessary infrastructure only on paper andnot on site. The Regulations of the AICTE are silent as to howthe students will get compensated, when penal action is takenagainst colleges which host false information online in theirapplications to AICTE. Ultimately, it is the universities whichEare obliged to issue degrees and whose reputation is inextricablyintertwined with the fate and performance of the students, thatmay have to face the music and hence their role cannot bebelittled. Today, even the universities are being rankedaccording to the quality of standards maintained by them.F[Para 58][761-A-C]
Modern Dental College & Research Centre and Othersv. State of Madhya Pradesh and Others. (2016) 7 SCC353:[2016] 3 SCR 579 – followed
Bharathidasan University and Another v. All IndiaGCouncil for Technical Education and Others (2001) 8SCC 676:[2001] 3 Suppl. SCR 253; Association ofManagement of Private Colleges v. All India Councilfor Technical Education and Others (2013) 8 SCC
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OF MGMT. & ENGG. TECH.
271:[2013] 6 SCR 1054; State of T.N. and Another v.S.V. Bratheep (Minor) and Others (2004) 4 SCC 513:[2004] 2 SCR 1218; Visveswaraiah TechnologicalUniversity and Another v. Krishnendu Halder andOthers (2011) 4 SCC 606: [2011] 2 SCR 1007;Mahatma Gandhi University and Another v. Jikku Pauland Others. (2011) 15 SCC 242 – relied on A
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Jaya Gokul Educational Trust v. Commissioner &Secretary to Government Higher Education Department,Thiruvanathapuram, Kerala State and Another (2000)5 SCC 231: [2000] 2 SCR 1234; Mata Gujri MemorialMedical College v. State of Bihar and Others (2009) 16SCC 309 – distinguished.
Rungta Engineering College, Bhilai and Another v.Chattisgarh Swami Vivekanand Technical Universityand Another (2015) 11 SCC 291 : [2014] 12 SCR 796– Not correct law D
R. Chitralekha v. State of Mysore and Others AIR 1964SC 1823: 1964 SCR 368; State of A.P. v. K.Purushotham Reddy and others (2003) 9 SCC 564:[2003] 2 SCR 832; Osmania University Teachers’Association v. State of Andhra Pradesh and Another(1987) 4 SCC 671: [1987] 3 SCR 949; BharatiVidyapeeth (deemed university) and Others v. State ofMaharashtra and Another (2004) 11 SCC 755: [2004]2 SCR 775; State of T.N. and Another v. AdhiyamanEducational and Research Institute and Others (1995)4 SCC 104: [1995] 2 SCR 1075 – referred to E
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4016of 2020
From the Judgment and Order dated 08.09.2020 of the High CourtDof Kerala at Ernakulam in WA No. 1073 of 2020.
Chander Uday Singh, P.S. Narasimha, C. Arayama Sundaram,Gopal Sankaranarayanan, Sr. Advs., P.V. Dinesh, Mukund P. Unny, T.P.Sindhu, Bineesh K., Ashwini Singh, S.Krishnamoorthy, K.V. Mohan, AnilSoni, Harish Pandey, Ms. Priyanka Prakash, Ms. Beena Prakash, G.EPrakash, Harish Shankar Vaidyanathan, Ravi Panwar and Kaushik Laik,Advs., for appearing parties.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
F1. Leave granted.
2. Aggrieved by the order passed by the Division Bench of theKerala High Court directing the Vice Chancellor of the University toreconsider the application for affiliation of a new B.Tech course,submitted by the first respondent, which is a self- financing EngineeringGCollege, solely on the basis of the extension of approval granted by theAll India Council for Technical Education (hereinafter referred to as“AICTE”), the APJ Abdul Kalam Technological University, which is aState University and its Vice Chancellor have come up with this appeal.
3. We have heard Mr. Chander Uday Singh, learned Senior Counselappearing for the appellant-University, Mr. S. Krishnamoorthy, learnedH
Counsel appearing for the first respondent-College, Ms. PriyankaPrakash, learned Counsel appearing for the second respondent-Stateand Mr. Anil Soni, learned Counsel appearing for the third respondent-AICTE. We have also heard Mr. C. Arayama Sundaram, Mr. GopalSankaranarayanan and Mr. P.S. Narasimha, learned Senior Counselappearing for the applicants seeking intervention/impleadment andvacation of stay.
4. It appears that despite the mushroom growth of the self-financing Engineering Institutions in the neighbouring States, the Stateof Kerala had only 15 Engineering Colleges with an annual intake ofonly 4844 students till the year 1997. But in the past more than twodecades, there was a spurt in the growth of self- financing EngineeringInstitutions in the State. The position as on date is that there are 149Engineering Colleges in the State of Kerala with a total annual permittedintake of 47,420 seats.
5. In addition, there are also six Central Government EngineeringInstitutions in the State.
6. Therefore, with a view to regulate technical education in theState, the State of Kerala enacted the APJ Abdul Kalam TechnologicalUniversity Act, 2015 (hereinafter referred to as “the University Act”).Some of the Objects of the University as indicated in Section 5 of theAct are as follows:- “xxxx (b) to improve the academic standards of the graduate,postgraduate and research programmes in engineering sciences,technology and management.
(c) to ensure the academic standards of all colleges and institutionsaffiliated to the University.
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(k) to substantially increase enrolment in Postgraduate educationand research programmes in the colleges and institutions with theaim of promoting engineering research, development andinnovation;
(l) to support the establishment of Centres of excellence formultidisciplinary applied research in specific thematic areas; A
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(m) to improve the learning skills of the students by constantlyand continuously improving and upgrading the academic qualityand standards of faculty; A
(n) to introduce and sustain innovative systematic qualityimprovement programmes in the field of technical education.”
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7. The powers and functions of the University enlisted in Section8 include the following:
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(iii) to lay down the norms and standards for the establishment,maintenance, administration, supervision and recognition of collegesand centres maintained by the University.
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(iv) to affiliate to itself institutions as constituent colleges orautonomous colleges or regular colleges or colleges with academicautonomy in accordance with the provisions of this Act and theStatutes, Ordinances and Regulations and to withdraw affiliationof colleges obtained in violation of Statutes of the University.; D
(v) to confer academic autonomy to affiliated colleges, institutionsor a department of the affiliated colleges or institutions or adepartment maintained by the University.
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(vii) to hold examinations and to confer degrees, postgraduatedegrees, diplomas, certificates and other academic distinctions topersons who, - (a) shall have pursued a prescribed course of study in theUniversity or any college or institutions thereunder and shallhave passed the prescribed examinations of the Universityunless exempted therefrom in the manner prescribed; or F
(b) shall have carried on research satisfactorily under conditionsas may be prescribed and which has been duly evaluated; G
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(xiv) to provide for the inspection of affiliated colleges and toissue such directions as the University may deem fit; xxxxxxxx H
(xviii) to recommend to the Government to take over, in the publicinterest, the management of colleges or institutions whereirregularities or dereliction of criminal nature by the managementof such college or institution are prima facie evident to thecommittee of enquiry appointed by the University.”
8. Sections 60 to 66 provide for affiliation and recognition,procedure for permission, continuation of affiliation, withdrawal ofaffiliation etc. Section 60 of the Act, which prescribes the conditionssubject to which affiliation can be granted by the University, reads asfollows:
60. Affiliation and recognition.- (1) The University can affiliateany of the Engineering Colleges or Institutions imparting educationin technology owned by Government of Kerala or Governmentcontrolled societies, Private aided and Private unaided self-financing educational agencies, which, before the date ofcommencement of this Act remained affiliated to the differentUniversities, except Deemed Universities in the State of Kerala,provided they meet the criteria prescribed under this Act,Ordinances and Statutes for affiliation, including but notconfined to availability of faculty, administrative machinery,infrastructure (buildings, laboratories etc.) which will belaid down by the University from time to time under theprovisions of this Act. Such colleges meeting the specifiedcriteria can be affiliated to the University as (i) regular collegesor (ii) autonomous colleges (iii) colleges with academic autonomyor (iv) institutions. The affiliation of such institutions to otherUniversities in the State except Deemed Universities, shall standtransferred to the University on and from the date ofcommencement of this Act, subject to the conditions that theaffiliation of these colleges or institutions in respect of the studentsadmitted to Engineering courses shall continue till those batchesof students complete their courses, the examinations of all suchstudents shall be conducted by the Universities to which they wereattached, degrees, postgraduate degrees or diplomas or otherdistinctions shall be awarded by such Universities:
Provided that the institutions in the technological branch maintainedby other Universities of the State as their departments or theirrespective constituent colleges or the engineering colleges orteaching institutions under the deemed universities and the National A
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Institutes established by the Central Government shall not comeunder the jurisdiction of the University.
(2) The Educational Agency applying for affiliation or recognitionand whose college or institution has been granted affiliation orrecognition, shall give and comply with the following undertaking:-
(i) that the provisions of this Act, or any other Acts passed bythe State Legislature related to Engineering field in the State,rules made thereunder and Statutes, Ordinances, Regulations,standing orders and directions of the University shall beobserved;
(ii) that there shall be a separate Governing Body or ManagingCouncil for an affiliated college or group of colleges receivingfinancial assistance from the Government or the University;
(iii) that the number of students admitted for courses of studyshall not exceed the limits prescribed from time to time, by theUniversity, the Government, Central or State Councils orauthorities in the concerned discipline as the case may be;
(iv) that there shall be suitable and adequate physical facilitiessuch as building, laboratories, libraries, equipments requiredfor teaching and research, hostel and other infrastructurefacilities as the case may be, prescribed by Statutes, Ordinancesand Regulations;
(v) that the financial resources of the college or institution shallbe such as to make due provision for its continued maintenanceand working;
(vi) that the strength and qualifications of teaching and non-teaching staff of the affiliated colleges and the emolumentsand the terms and conditions of service of the staff of affiliatedcolleges shall be such as may be prescribed by the Universityand which shall be sufficient to make due provision for coursesof study, teaching or training or research, efficiently;
(vii) that the services of all teaching and non-teaching employeesand the facilities of the college to be affiliated shall be madeavailable for conducting examinations and for promoting otheractivities of the University;
(viii) that the directions and orders issued by the Chancellor,Vice-Chancellor and other officers of the University in exerciseof the powers conferred on them under the provisions of thisAct, Statutes, Ordinances and Regulations or any other Actspassed by the State Legislature in this regard, shall be compliedwith;
(ix) that, there shall be no transfer of the management orownership of the college without previous sanction of theUniversity;
(x) that the college or institution shall not be closed withoutprevious sanction of the University;
(xi) that in the event of disaffiliation or de-recognition or closureof the college or institution, all the assets of the college orinstitution including building and equipment which have beenconstructed or created out of the amount paid as a grant-in-aidby the Government or the University Grants Commission shallvest in the Government.
9. While section 60 extracted above, lays down in detail, the criteriafor and the conditions subject to which, affiliation can be granted to aninstitution, Section 63 of the University Act indicates the procedure forcontinuation of affiliation. It reads as follows:
63. Continuation of affiliation. - (1) The affiliated college orrecognised institution may apply for continuation of affiliation orrecognition for the courses of study for which affiliation orrecognition was granted ordinarily six months prior to the date ofexpiry of such affiliation or recognition. The University shall followthe procedure prescribed in Statutes, for grant of continuation ofaffiliation.
(2) The affiliated college or recognised institution may applyfor affiliation or recognition for additional courses of studyand the same shall be considered by the University followingthe procedures or rules prescribed in this regard in theStatutes.
(3) An affiliated college with at least six years standing as anaffiliated college may apply for permanent affiliation in the manner A
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744SUPREME COURT REPORTS
Aas may be prescribed in the Statutes and the University shallconsider such applications in such manner as may be prescribed.
10. The first respondent is a self-financing Institution which wasearlier offering B.Tech courses in five disciplines with an annual permittedintake of 60 students in each of the disciplines. After closing the courseBin one particular discipline, the first respondent applied in February/March-2020 seeking approval of the AICTE for starting a new course in“Artificial Intelligence and Data Science” with a permitted annualintake of 60 students, from the Academic Year 2020-21. The applicationwas in accordance with the AICTE Approval Process Handbook 2020-21, issued in terms of the AICTE (Grant of Approvals for TechnicalCInstitutions) Regulations, 2020.
11. On 13.06.2020, AICTE granted approval to the first respondent,for starting the newly proposed course, even while granting extension ofapproval for the existing courses.
D12. Simultaneously with the submission of the application to theAICTE, the first respondent also submitted an application for affiliationto the appellant-University, in February/March 2020. The first respondentalso paid the Inspection Fee/Affiliation Fee.
13. But even before the first respondent took a decision to start aEnew course, something happened in the State of Kerala. A studyconducted by a group of academic experts seems to have revealed thatthere was a steady decline in the actual intake of students in self-financingengineering colleges. As against the permitted intake of 58,165 studentsfor the academic year 2015-16, only 37,007 students got admitted leaving19,468 seats vacant. The number of vacant seats rose to 20,038 in theFacademic year 2016-17 and to 22,819 in the academic year 2017-18.
14. Therefore, based on the study conducted by the group ofacademic experts, the Government issued an order in G.O. (Rt) No.1039/2019/HEDN dated 22.06.2019. It was directed by this Order thatpermission for starting new courses in Engineering shall be granted onlyGif three conditions are satisfied namely: (i) that the college should haveNBA accreditation; (ii) that the admission of students in the previousacademic years should have been more than 50% of the sanctionedintake; and (iii) that the new course should be innovative.
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15. Following the said Government order, the Syndicate of theappellant-University resolved in its meeting held on 04.02.2020 to fix thefollowing norms for the grant of affiliation to new programs based onthe recommendation of the Academic Council: (i) that at least one of theexisting programs should have NBA accreditation; (ii) that the averageannual intake of the institution for the previous three years should bemore than 50% of the sanctioned intake; (iii) that the proposed programmeshould have AICTE approval and NOC from State Government; and(iv) that the proposed programme should have industry demand/employment potential.
16. Thereafter, a sub-committee was constituted for the purposeof recommending affiliation for new courses or programmes for theaffiliated colleges who have submitted applications for starting newprogrammes. This sub-committee resolved in its meeting held on20.03.2020 to suggest the following criteria for the consideration of theSyndicate of the University:-
1. The sub-committee examined all the 50 proposals received till19-03-2020 from various colleges for granting affiliation to newprograms/additional intakes. Upon scrutiny of each application inline with the criteria suggested by the Syndicate as cited above,21 institutions are found to be eligible. The details of these 21institutions and programs/courses applied are attached asAnnexure 1. Accordingly, the sub-committee recommends thatthe proposals from these 21 institutions for starting new programs/additional intake be favourably considered by the Syndicate forissuing NOC for granting affiliation.
2. The sub-committee recommends that the applications for BVoCcourses be considered by the Syndicate for appropriate policydecisions.
3. The sub-committee recommends that the applications for BVoCcourses be considered by the Syndicate/refer the matter to theDirector of Technical Education for appropriate policy decisions.
4. The sub-committee identified two case wherein the institutionsare having NBA accreditation but with percentage intake lessthan 50. These two cases are referred to the Syndicate forappropriate decisions.
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A5. The sub-committee recommends that for the courses listed inAnnexure 1 detailed syllabus and curriculum are to be framed ina time bound manner well before the commencement of thecourses.
17. Finding that the Government Order G.O. (Rt) No.1039, datedB22.06.2019 and the resolution of the Syndicate dated 04.02.2020 has ledto an unfavourable climate with the sub-committee not recommendingthe grant of affiliation for their proposed new course, the first respondent-College filed a writ petition in Writ Petition (C) No.12709 of 2020 beforethe High Court of Kerala. It appears that the writ petition was filed on23.06.2020, seeking the following reliefs namely: (i) to set aside theCGovernment Order dated 22.06.2019; (ii) to direct the University to grantaffiliation for the newly proposed course for the academic year 2020-21; (iii) to quash the resolution of the Syndicate dated 04.02.2020, ascommunicated by the Order of the Registrar of the University dated10.06.2020; (iv) to direct the University to consider the application forDaffiliation of the proposed course, without insisting on NBA accreditationand without insisting on NOC from State Government; and (v) to grantaffiliation for the newly proposed course without insisting on any criteriabased upon the report of the sub-committee.
18. By sheer coincidence, the 13th meeting of the Syndicate ofthe appellant-University was held on 24.06.2020, the day following theEdate on which the first respondent College filed the writ petition beforethe High Court. This Syndicate meeting was chaired by the ViceChancellor of the University. It was attended by a total of nine persons,of which one was the Principal Secretary, Higher Education Departmentof the Government of Kerala, and another was the Director of TechnicalFEducation. The rest were academicians. In this meeting, the Syndicateexamined the list of colleges which had applied for new courses/programmes, without any NBA accreditation. Finding that even collegeswhich did not have NBA accreditation had been granted approval byAICTE, the Syndicate resolved in its meeting held on 24.06.2020 thataffiliation can be granted even to colleges without NBA accreditation,Gsubject to the satisfaction of the following criteria: (i) that the Institutionshould have more than 50% pass for the outgoing students at the time ofapplication for affiliation; (ii) that the Institution should have most recentacademic audit overall score of “Good”; and (iii) that the Institutionshould have three years average intake of more than 50% of thesanctioned intake.H
19. Though the first respondent filed the writ petition on 23.06.2020challenging the order of the University dated 10.06.2020 and though theearlier Syndicate Resolution dated 04.02.2020 (on which the order ofthe Registrar dated 10.06.2020 was based) stood modified by the nextSyndicate Resolution dated 24.06.2020, the first respondent did not seekany amendment of the prayer. The net result was that one of the orders(of the University) impugned in the writ petition stood amended, by thetime the writ petition was heard, but the amendment was not underchallenge.
20. The writ petition filed by the first respondent challenging thedenial of affiliation for starting a new B.Tech course in ArtificialIntelligence and Data Science, was taken up along with similar writpetitions filed by other colleges (including those filed by the Colleges,which have now come up with applications for intervention/impleadmentand for vacation of interim order) and all of them were disposed of by alearned Judge of the High Court by a Judgment dated 06.08.2020. Bythe said Judgment, the learned Judge held: (i) that in view of therequirements of Section 14 of the University Act read with Section30(2)(xiv), the Syndicate cannot be said to be lacking in authority forfixing the norms for affiliation; (ii) that the norms fixed by the Syndicatein its resolution dated 04.02.2020 as communicated by the Order of theRegistrar dated 10.06.2020 would be applicable to both programmesand courses; (iii) that in view of the resolution of the Syndicate dated24.06.2020, NOC from the State Government and NBA accreditationare no longer necessary; (iv) that as a consequence, the StateGovernment Order dated 22.06.2019 was liable to be set aside; and (v)that the University may have to reconsider one portion of its decisiondated 24.06.2020, after taking note of the recommendation contained inAnnexure 1 and Clause 7 of Annexure 14 of the Approval ProcessHandbook and a clarification issued by AICTE. Annexure 1 of theApproval Process Handbook contained a recommendation to discouragethe creation of additional seats in traditional disciplines, but to encourageconversion of current capacity in traditional disciplines to emerging newtechnologies. Clause 7 of Annexure 14 made accreditation mandatoryfor increase in intake/starting new courses.
21. Not satisfied with the partial relief granted and the directionsissued by the learned Judge, the first respondent filed a writ appeal inWrit Appeal No.1073 of 2020 before the Division Bench of the High AB
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ACourt. The other Colleges who were writ petitioners, also filed separatewrit appeals.
22. By the common Judgment dated 08.09.2020 impugned in thisappeal, the Division Bench partially allowed the writ appeals, holding: (i)that the Syndicate did not have the power to take the decisions datedB04.02.2020 (as communicated on 10.06.2020) and 24.06.2020, as therewas no University Statute in force on that date and that in the absenceof the Statute, the Vice-Chancellor alone had the power under section14(6) of the Act to make any recommendation to the Board of Governorsin the matter of affiliation; and (ii) that the University cannot go beyondAICTE Regulations.C
23. Aggrieved by the said judgment of the Division Bench of theKerala High Court, the University has come up with the above appeal.It is stated across the Bar that the appellant-University has filed similarappeals against the very same impugned Judgment and those appealsare yet to be numbered.D
24. Though the learned Single Judge dealt with several issues, thefocus of the Division Bench was mainly on two issues namely: (i) thepower of the Syndicate to lay down norms for the grant of affiliation;and (ii) the very power of the University to go beyond the AICTERegulations.E
25. On the first issue revolving around the power of the Syndicate,the High Court held that under Section 63(2) of the State University Act,an application for affiliation or recognition for additional courses of studymade by a College which already holds affiliation, should be consideredby the University following the procedure prescribed in the Statutes.FAdmittedly the first University Statute was issued only on 07.08.2020.Therefore the Division Bench of the High Court held that on the date onwhich the applications for affiliation for additional courses of study weremade by the Colleges and processed by the University, there was noStatute of the University. Hence the Division Bench concluded that theonly option available in such circumstances where there was no Statute,Gwas for the Vice Chancellor to take recourse to the power availableunder Section 14(6) of the University Act. But this power, in the opinionof the High Court, has to be exercised by the Vice Chancellor with theapproval of the Board of Governors. As this was not done, the DivisionBench remanded the matter back to the Vice Chancellor to follow thecourse of action available under Section 14(6).H
26. It is relevant to note at this stage that the power of the Syndicateto lay down norms and standards for affiliation, which it did as per itsResolutions, was upheld by the learned Single Judge, on a reading ofSection 30(2)(xiv) of the Act. The Judgment of the learned Single Judgewas delivered on 06.08.2020, upholding the power of the Syndicate, evenin the absence of the Statutes of the University, to lay down norms foraffiliation for additional courses. However, on the very next day namely07.08.2020, the First Statutes of the University were also issued.
27. Therefore, when the colleges filed writ appeals and arguedabout the procedure to be followed under Section 14(6) in the absenceof the Statutes, the appellant-University relied upon the Statutes issuedon 07.08.2020 and the power of ratification. Statute No.93 was broughtto the notice of the Division Bench to show that all matters relating toaffiliation fell within the scope of the powers of the Syndicate. But theDivision Bench not only rejected the argument of ratification, but alsorejected the reliance placed upon Statute No.93 on the ground that thepower under Statute No.93 may relate only to the grant of affiliation ofa teaching course or any subject in a teaching course, conducted in anyof the colleges which are not affiliated.
28. But we do not think that the view taken by the Division Benchboth with regard to the prescription contained in Section 63(2) and withregard to the powers of the Vice Chancellor under Section 14(6), is insync with the scheme of the University Act. Section 63(2) which wehave already extracted in paragraph 9 above, actually deals with thegrant of affiliation or recognition for additional courses to an affiliatedcollege or recognized institution. This provision does not deal with thelaying down of norms and standards. The Division Bench overlookedthe fact that what was in issue before the Court was a Resolution passedby the Syndicate, first on 04.02.2020 as communicated by the Order ofthe Registrar dated 10.06.2020 and then on 24.06.2020. In other wordswhat was in question in the writ petitions filed by the Colleges, was notmerely the individual act of grant or denial of affiliation for additionalcourses. The challenge was to the norms fixed by the Syndicate in itsmeetings dated 04.02.2020 and 24.06.2020 for the grant of affiliation foradditional courses. Section 63(2) does not deal with the issue of layingdown norms and standards, but deals only with the grant of affiliation foradditional courses in accordance with the procedure prescribed in theStatutes.
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29. The manner in which the Division Bench of the High Courtconstrued Section 14(6), is also not correct. It will be useful to extractSub-sections (5), (6) and (14) of Section 14. They read as follows:
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(5) If there are reasonable grounds for the Vice-Chancellor tobelieve that there is an emergency which requires immediate actionto be taken, he shall, take such action as he thinks necessary, andshall, submit for approval in the next meeting, the grounds for theemergency and the action taken by him, to such authority or bodyCwhich, in the ordinary course, would have dealt with the matter.In the event of a difference arising between the Vice-Chancellorand the authority, on the issue of existence of such an emergency,or on the authority, on the issue of existence of such an emergency,or on the action taken or on both, the matter shall be referred tothe Chancellor whose decision shall be final.
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(6) Where any matter is required to be regulated by Statutes orRegulations but no Statues or Regulations have been made in thatbehalf, the Vice-Chancellor shall for the time being, regulate thematter by issuing such directions as the Vice-Chancellor thinksEnecessary, and shall, as soon as may be, submit them before theBoard of Governors or other authority or body concerned forapproval.
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(14) The Vice-Chancellor shall exercise such other powers andFperform such other duties as may be conferred upon the Vice-Chancellor by or under this Act and Statutes.”
30. On a reading of Section 14(6), the High court came to theconclusion that the Vice Chancellor, in the absence of Statutes, may beentitled to issue directions for regulating certain matters, but if he doesGso, he has to take the approval of the Board of Governors. But the HighCourt overlooked several facts. First is that Sub-section (5) of Section14 confers emergency powers on the Vice Chancellor and Sub-section(14) recognises the residuary powers of the Vice Chancellor. Second isthat even sub-section (6) uses the words “Board of Governors or otherauthority or body concerned for approval”. Therefore, it is notH
necessary that the Vice-Chancellor, after issuing directions, should takethe approval of the Board of Governors alone. He was entitled to takethe approval of “the other authority or body concerned”.
31. In the case on hand, the Syndicate of the University comprisedof nine persons, including the Vice Chancellor, the Principal Secretary tothe Higher Education Department of the Government of Kerala, theDirector of Technical Education and a few academicians. All that theSyndicate wanted from the Colleges seeking affiliation for additionalcourses, was the fulfillment of just three simple criteria namely (i) morethan 50% pass for the outgoing students at the time of application foraffiliation; (ii) most recent academic audit overall score of “Good”; and(iii) three years average intake of more than 50% of the sanctionedintake.
32. As we have seen earlier, the power to lay down norms andstandards and the power to affiliate to itself the Colleges, flow out ofclause (iii) and (iv) of Section 8. This power is exercisable by Universityin accordance with the provisions of the Act, the Statutes, Ordinancesand Regulations. It is the very same Section 8 which confers powerupon the University to make Statutes, Ordinances and Regulations, underclause (xxvi).
33. Section 22 speaks of different authorities of the University.Under Section 22, as it was originally drafted, the University shall havea Board of Governors, an Executive Committee, the AcademicCommittee, the Research Council and such other bodies as may bedesignated by the Statutes, to be the authorities of the University. TheUniversity Act 17 of 2015 was amended by A.P.J. Abdul KalamTechnological University (Amendment) Act, 2018. The Amendment Act,though notified in the Kerala Gazette on 03.07.2018, came into effectfrom 08.12.2017. Through this Amendment Act, the nomenclature ofthe ‘Academic Committee’ was changed to ‘Academic Council’ andthe nomenclature of ‘Executive Committee’ was changed to ‘Syndicate’.Therefore, wherever there was a reference in the Act, to the ‘ExecutiveCommittee’, it had to be construed as a reference to the ‘Syndicate’.
34. Section 30(1) vests upon the Syndicate, the executivepowers of the University, including the general superintendence andcontrol over the institutions of the University. Sub-section (2) of Section30 lists out the powers available to the Syndicate, subject to the provisions AB
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Aof the Act and the Statutes. The power under Clause (iii) of Sub-section(2) of Section 30 is of relevance and it reads as follows:- “(2) Subject to the provisions of this Act and the Statutes, theSyndicate shall have the following powers, namely:-
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(iii) to propose norms and standards for affiliating collegesas regular colleges or autonomous colleges or constituent collegesof the University.”
CThus, the source of power for the Syndicate to prescribe normsand standards for affiliation, is Section 30(2). Section 30(2) beginswith the words “subject to the provisions of the Act and the Statutes”.So, if there is something in the Act or the Statutes which regulates orcontrols the power of the Syndicate, then the Syndicate may be boundby such prescription. But if there is nothing in the Act/Statutes or if thereDare no Statutes at all, then it cannot be said that the power itself isunavailable. What is important to observe is that the power of theSyndicate to propose norms and standards flows out of the Act andnot out of the University Statutes. Therefore, the absence of Statutes,till they were made for the first time on 07.08.2020, did not mean thatEthe power under Section 30(2) could not have been exercised. The HighCourt erred in thinking that in the absence of the Statutes, recourse wasavailable only to the Vice Chancellor under Section 14(6), overlookingfor a moment that the power under Section 30(2)(iii) would not becomeotiose due to the absence of the Statutes.
35. Section 42 of the Act which speaks about the issue of StatutesFand the matters for which provisions may be made in the Statutes, makesit clear that “the conditions and procedures for affiliation of Collegesand for withdrawing the affiliation of colleges”, is one of the mattersthat could be provided for in the Statutes. This is under Clause (xi) ofSection 42. Therefore, it is clear that the Statutes can provide for theGconditions and procedure for affiliation. The absence of the Statutes (till07.08.2020) would only mean the absence of Statute-stipulated conditionsand procedure for affiliation, but not the absence of the very power ofthe Syndicate flowing out of Section 30(2)(iii). Therefore, it was notnecessary for the Vice Chancellor to fall back upon Section 14(6) on theground that there were no Statutes at that time.H
36. Even assuming for a moment that the absence of the Statuteswould take one automatically to Section 14(6), the inference drawntherefrom by the High Court may not be correct. Section 14(6) says thatin the absence of a Statute, it is the Vice Chancellor who has the powerto regulate any matter which is required to be regulated by Statutes orRegulations. It cannot be interpreted to mean that the Syndicate itselfwill be powerless in the absence of the Statutes and that the ViceChancellor will have the power. In any case, the language of Section14(6) is such that the Vice Chancellor may first regulate the matter byissuing directions and thereafter submit the same “as soon as may be”for the approval of the Board of Governors or other authority or bodyconcerned. By virtue of Section 30(2)(iii), the Syndicate can be taken tobe the “other authority” referred to in Section 14(6). If we do so, it canbe seen that it was the Syndicate, chaired by the Vice Chancellor whichtook the impugned decisions in its meetings held on 04.02.2020 and24.06.2020 and hence the prescription of norms by the Syndicate, chairedby the Vice Chancellor cannot be said to be ultra vires the Act.
37. In any case, once the Statutes were issued on 07.08.2020, thevacuum sought to be filled up by Section 14(6) also disappeared. UnderSection 43(1) of the Act, the State Government has the power to issuethe first Statutes of the University. Accordingly, the Government issuedthe first Statutes on 07.08.2020. There is nothing in the Statutes thatappears to curtail the power of the Syndicate to lay down norms andstandards. Under Clause (xi) of Section 42, the Statutes may provide forthe conditions and the procedure for affiliation. But the Statutes do notappear to lay down any conditions. Statute No.93 relied upon by theUniversity seems to have left it to the Syndicate to prescribe theconditions. Statute No.93 reads as follows:
“Statute 93 Clause (xlix)
To grant exemption or reduction in the following mattes and alsoother mattes not specified here below, subject to the provisions ofthe University Act:
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g) Matters relating to granting of affiliation for a course of studyor any subject in a course of study not already affiliated to theUniversity, conducted in any of the colleges.”
38. When the Statutes have not prescribed any conditions forBaffiliation but have left it to the Syndicate to take care of matters relatingto affiliation, the function of the Syndicate to lay down norms andstandards by virtue of the powers conferred by Section 30(2), is madefree of any fetters.
39. Therefore, the norms prescribed by the Syndicate in its meetingCheld on 24.06.2020 under the Chairmanship of the Vice Chancellor couldnot have been taken exception to. After all, the norms which the Collegeshave objected to, merely seek to ensure that at least 50% of the outgoingstudents had passed their respective courses and that the Institution should have the most recent academic audit overall score of “Good”, apartDfrom having an actual intake of more than 50% of the sanctioned intakein the preceding three years on an average. We fail to understand howcolleges can demand affiliation for creating additional courses, when thepass percentage of outgoing students is less than 50% and the Collegescould not even have an average intake of more than 50% of thesanctioned intake in the preceding three years.E40. Therefore, we are of the view that the High Court was inerror in holding on the first issue that the resolutions passed by theSyndicate prescribing norms and standards for the grant of affiliation foradditional courses, are ultra vires the Act.
41. Let us now take up the second issue revolving around the roleFof the appellant-University vis-a-vis AICTE. A little elaboration may benecessary as this issue keeps recurring very often.
42. The AICTE, was actually set up in 1945 as a National ExpertBody to advice the Central and State Governments for ensuring theCoordinated Development of Technical Education in accordance withGapproved standards. After the mushroom growth of private EngineeringColleges and Polytechnics and the growing erosion of standards, theCouncil felt it necessary that it should be vested with statutory powersto regulate and maintain standards of Technical Education in the country.Therefore, a National Working Group was set up in November, 1985.HOn the basis of the recommendations made by the National Working Group, the AICTE Act, 1987 was enacted. Section 23(1) of the AICTEAct empowers the Council to make regulations not inconsistent with theprovisions of the Act and the Rules, generally to carry out the purposesof the Act. Section 10(1) of the Act enjoins upon the Council, the duty totake all such steps as may be necessary for ensuring coordinated andintegrated development of Technical and Management Education andmaintenance of standards. Clause (i) of sub-section (1) of Section 10empowers the Council to lay down norms and standards for courses,curricula, physical and instrumental facilities, staff pattern, staffqualifications, quality instructions, assessment and examinations.Clause(o) empowers the Council to provide guidelines for admission ofstudents to Technical Institutions and Universities imparting technicaleducation. Clause(k) of Sub-section (1) of Section 10 empowers theCouncil to grant approval for starting new Technical Institutions and forintroduction of new courses or programmes in consultation with theagencies concerned.
43. It will be of interest to note that Sub-section (2) of Section 23,which enlists the matters that could be provided for in the Regulationsframed by the AICTE, does not include any of the powers indicated inSection 10(1). Clauses (a) to (e) of Sub-section (2) of Section 23 dealwith the manner in which the meetings of the Council are to be regulated,the procedure for conducting business at the meetings of the Council,the terms and conditions of service of officers and employees of theCouncil, the constitution and powers of the Board of Studies etc. ButSub-section (2) of Section 23 makes it clear that the items listed thereinare without prejudice to the generality of the powers to make Regulationsunder Sub-section (1), for carrying out the purposes of the Act. This iswhy all Regulations are issued by AICTE in exercise of the powersconferred by Section 23(1) read with the relevant clauses of Sub-section(1) of Section 10.
44. The AICTE Act is to be traced to Entry 66 of List-I of theSeventh Schedule to the Constitution. The A.P.J. Abdul KalamTechnological University Act issued by the Kerala State Legislature canbe traced to Entry 25 of List-III.
45. In R. Chitralekha vs. State of Mysore and Others[1], theConstitution Bench of this Court pointed out that the question regarding 1 AIR 1964 SC 1823
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Athe impact of Entry 66 of List-I on Entry-25 of List-III must be determinedby a reading of the Central Act and the State Act conjointly. The Courtpointed out that a State Law providing for such standards, havingregard to Entry 66 of List-I, would be struck down as unconstitutionalonly if the same is found to be so heavy or devastating as to wipe outor appreciably abridge the Central field and not otherwise. The CourtBalso pointed out that if a State law prescribes higher percentage of marksfor extra-curricular activities in the matter of admissions to colleges, itcannot be said that it would be encroaching on the field covered byEntry 66 of List-I.
46. The decision of the Supreme Court in R. Chitralekha (supra)Cwas followed in several cases including the one in State of A.P. vs. K.Purushotham Reddy and others[2]. The decision in K. PurushothamReddy (supra) arose under very peculiar circumstances. The State ofAndhra Pradesh enacted in the year 1986, an Act known as AndhraPradesh Commissionerate of Higher Education Act, 1986. TheDconstitutional validity of the said Act was questioned on the ground oflack of legislative competence, in view of the University GrantsCommission Act, 1956. Though a Full Bench of the High Court rejectedthe challenge, the Supreme Court declared the Act as unconstitutional,by its judgment in Osmania University Teachers’ Association vs. Stateof Andhra Pradesh and Another[3]. Thereafter, the Government ofEAndhra Pradesh enacted the Andhra Pradesh State Council of HigherEducation Act, 1988. This Act was declared as unconstitutional by theHigh Court, on the same premise on which the 1986 Act was declaredby this Court as unconstitutional. Therefore, the matter was carried tothis Court. A Two Member Bench of this Court doubted the correctnessFof the decision in Osmania University Teachers’ Association (supra),and hence, the matter was referred to a three-member Bench. Thethree-member Bench rejected the challenge to the State Act, by followingthe decision in R. Chitralekha (supra) and pointed out that when aState Act is in aid of the Parliamentary Act, the same would not entrenchupon the latter.G47. The law is now fairly well settled that while it is not open tothe Universities to dilute the norms and standards prescribed by AICTE,it is always open to the Universities to prescribe enhanced norms. As 2 (2003) 9 SCC 564H3 (1987) 4 SCC 671
regards the role of the Universities vis-à-vis the AICTE, this Court heldin Bharathidasan University and Another vs. All India Council forTechnical Education and Others[4], that AICTE is not a super powerwith a devastating role undermining the status, authority and autonomousfunctioning of the Universities in areas and spheres assigned to them.This view was followed in Association of Management of PrivateColleges vs. All India Council for Technical Education and Others[5].
48. That even the State Government can prescribe higher standardsthan those prescribed by AICTE was recognized by a 3- member Benchof this court in State of T.N. and Another vs. S.V. Bratheep (Minor)and Others[6]. This principle was later applied in the case of Universitiesin Visveswaraiah Technological University and Another vs.Krishnendu Halder and Others[7]where this Court considered theprevious decisions and summarised the legal position emerging therefromas follows:
(i) While prescribing the eligibility criteria for admission toinstitutions of higher education, the State/University cannotadversely affect the standards laid down by the Central Body/AICTE. The term “adversely affect the standards” refers tolowering of the norms laid down by Central Body/AICTE.Prescribing higher standards for admission by laying downqualifications in addition to or higher than those prescribed byAICTE, consistent with the object of promoting higher standardsand excellence in higher education, will not be considered asadversely affecting the standards laid down by the Central Body/AICTE.
(ii) The observation in para 41(vi) of Adhiyaman to the effect thatwhere seats remain unfilled, the state authorities cannot denyadmission to any student satisfying the minimum standards laiddown by AICTE, even though he is not qualified according to itsstandards, is not good law.
(iii) The fact that there are unfilled seats in a particular year, doesnot mean that in that year, the eligibility criteria fixed by the State/
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AUniversity would cease to apply or that the minimum eligibilitycriteria suggested by AICTE alone would apply. Unless and untilthe State or the University chooses to modify the eligibility criteriafixed by them, they will continue to apply in spite of the fact thatthere are vacancies or unfilled seats in any year. The main objectof prescribing eligibility criteria is not to ensure that all seats inBcolleges are filled, but to ensure that excellence in standards ofhigher education is maintained.
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(iv) The State/University (as also AICTE) should periodically (atsuch intervals as they deem fit) review the prescription of eligibilitycriteria for admissions, keeping in balance, the need to maintainCexcellence and high standard in higher education on the one hand,and the need to maintain a healthy ratio between the total numberof seats available in the state and the number of students seekingadmission, on the other. If necessary, they may revise the eligibilitycriteria so as to continue excellence in education and at the sameDtime being realistic about the attainable standards of marks in thequalifying examinations.
49. Visveswaraiah (supra) principles were reiterated in MahatmaGandhi University and Another vs. Jikku Paul and Others[8]. Thelegal position summarised in paragraph 14 of the report in VisveswaraiahE(supra) (extracted above) were quoted with approval by the ConstitutionBench in Modern Dental College & Research Centre and Others vs.State of Madhya Pradesh and Others[9]. In Modern Dental College(supra), issue No. IV framed for consideration by the Constitution Bench(as reflected in the opinion of the majority) was as to “whether thelegislation in question was beyond the legislative competence of theFState of Madhya Pradesh”. While answering this issue, the opinion ofthe majority was to the effect (i) that the decision in Dr. Preeti Srivastavaand Another vs. State of M.P. and Others[10] did not exclude the role ofthe States altogether from admissions; and (ii) that the observations inBharati Vidyapeeth (deemed university) and Others vs. State ofGMaharashtra and Another[11]as though the entire gamut of admissionswas covered by Entry 66 of List-I, has to be overruled. In the concurring 8 (2011) 15 SCC 2429 (2016) 7 SCC 35310 (1999) 7 SCC 120H11 (2004) 11 SCC 755
and supplementing opinion rendered by R. Banumathi, J., in ModernDental College (supra), the legal position enunciated in Visveswaraiah(supra) were extracted and followed.
50. But the High court placed reliance upon the decisions in (i)Jaya Gokul Educational Trust vs. Commissioner & Secretary toGovernment Higher Education Department, Thiruvanathapuram,Kerala State and Another[12], (ii) Mata Gujri Memorial MedicalCollege vs. State of Bihar and Others[13 ]and (iii) Rungta EngineeringCollege, Bhilai and Another vs .Chattisgarh Swami VivekanandTechnical University and Another[14], to hold in paragraphs 33 to 35 ofthe impugned judgment that the University did not have the power toincorporate any additional conditions for affiliation and that the AICTERegulations and the Approval Process Handbook constitute a completecode having a superior force.
51. But the High Court ought to have noticed that all the above 3decisions are distinguishable. In Jaya Gokul Educational Trust (supra),the question whether the State Government, as a matter of policy, candecline to grant approval for the establishment of a new EngineeringCollege, in view of the perception of the State Government that theopening of a new college will not be in the interest of the students andemployment, was answered in favour of the Institution.
52. Thereafter, in Bharathidasan University (supra), the SupremeCourt noted Jaya Gokul Educational Trust (supra) and came to theconclusion that a careful scanning of the provisions of the AICTE Actand the provisions of the UGC Act in juxtaposition will show that therole of the AICTE vis-à-vis the Universities is only advisory,recommendatory and a guiding factor. Therefore, on the issue on hand,Jaya Gokul is of no assistance to the first respondent. Mata GujriMemorial Medical College followed Jaya Gokul, without referenceto Bharathidasan University. In any case, as on date Visveswaraiah,Mahatma Gandhi University and Modern Dental College hold thefield, but apparently, they were not brought to the notice of the HighCourt.
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A53. In Rungta Engineering College (supra), on which the HighCourt placed heavy reliance, this Court relied upon the decisions in Stateof T.N. and Another vs. Adhiyaman Educational and ResearchInstitute and Others[15]and Jaya Gokul. In Adhiyaman, this Courtheld that in the case of institutes imparting technical education, it is notthe University Act and the University but the Central Act and the CouncilBcreated under it that will have jurisdiction.
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54. Rungta Engineering College did not take note ofBharathidasan University, B.V. Bratheep, Visveswaraiah andMahatma Gandhi University. Therefore, it cannot be said to reflectthe correct position in law.C
55. Quite unfortunately the AICTE has filed a counter affidavitbefore this Court supporting the case of the first Respondent Collegeand branding the fixation of additional norms and conditions by theUniversity as unwarranted. Such a stand on the part of the AICTE hascompelled us to take note of certain developments that have taken placeDafter 2012 on the AICTE front.
56. After the advent of AICTE Regulations, 2012, the applicationsfor extension of approvals are processed by AICTE only online, merelyon the basis of the self-disclosure made by the colleges in their onlineapplications. If all infrastructural facilities as prescribed by AICTE areEfound to be available on paper (whether available at site or not), theAICTE grants extension of approval.
57. The position ever since 2012 has been that all applications forapproval/extension of approval are processed by AICTE only online.The AICTE Regulations, 2020, also require under Regulation 5.6.a. thatFexisting institutions should submit applications using their unique UserID. Regulation 6.3.a. states that the applications submitted by the existinginstitutions will be processed after confirming that the applicant hadfulfilled all the norms and standards through the procedure as prescribedin the Approval Process Handbook. Chapter II of the Approval ProcessGHandbook for 2020-21 makes it clear that the extension of approval willbe based on self-disclosure. Paragraph 13 of the counter affidavit of theAICTE contains an extract of Clause 2.15.4(b) of APH 2020-21, whichconfirms that the assessment is based on self-disclosure on AICTE webportal.
58. Though AICTE has reserved to itself the power to conductinspections and take penal action against colleges for false declarations,such penal action does not mean anything and does not serve any purposefor the students who get admitted to colleges which have necessaryinfrastructure only on paper and not on site. The Regulations of theAICTE are silent as to how the students will get compensated, whenpenal action is taken against colleges which host false information onlinein their applications to AICTE. Ultimately, it is the universities which areobliged to issue degrees and whose reputation is inextricably intertwinedwith the fate and performance of the students, that may have to face themusic and hence their role cannot be belittled. Today, even the universitiesare being ranked according to the quality of standards maintained bythem. The Ministry of Human Resources Development of theGovernment of India launched an initiative in September 2015, knownas National Institutional Ranking Framework (NIRF), for rankinginstitutions including universities in India. The ranking is based on certainparameters such as: (i) Teaching, Learning and Resources; (ii) Researchand Professional Practice; (iii) Graduation Outcomes; (iv) Outreachand Inclusivity; and (v) Peer Perception. No State run university canafford to have a laid-back attitude today, when their own performance isbeing measured by international standards. Therefore, the power of theuniversities to prescribe enhanced norms and standards, cannot bedoubted.
59. In such circumstances, we are of the considered view thatthe view taken by the Kerala High Court in paragraphs 33 to 35 of theimpugned judgment on issue no.2, is unsustainable. At the cost ofrepetition, we point out that while universities cannot dilute the standardsprescribed by AICTE, they certainly have the power to stipulate enhancednorms and standards.
60. Accordingly, the appeal is allowed and the impugned judgmentof the High Court is set aside. The resolution passed by the Syndicate on24.06.2020 in modification of the earlier resolution dated 04.02.2020 isupheld. As a corollary, the consequential actions, if any, of the Universityas regards the first respondent-College are also upheld. The applicationsfor impleadment/intervention are dismissed and the other pendingapplications, if any, shall stand disposed of. There will be no order as tocosts.
Appeal allowed
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