JAWAHARLAL NEHRU TECHNOLOGICAL versus CRESCENT EDUCATIONAL SOCIETY & ORS. on 18 November 2021

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1. Leave granted.

2. The High Court of Telangana, by its interim orders dated5 October 2021, 25 October 2021 and 26 October 2021, has held thatthe action of Jawaharlal Nehru Technological University[1] in seeking the H1 “JNTU”

approval of the State Government before granting affiliation to newcourses in existing institutions, which have already been approved by AllIndia Council for Technical Education[2], is contrary to the decision of thisCourt in Jaya Gokul Education Trust v Commissioner & Secretaryto Govt Higher Education Department, Thiruvananthapuram,Kerala State and Another[3]. Consequently, the High Court has, directedJNTU to notify the institutions in the course of the second phase ofcounselling thereby allowing students to be admitted to the courses.Several institutions sought the permission of AICTE, inter alia, forenhancing the intake capacity in “emerging areas” of engineering or, asthe case may be, for new courses. The approval of AICTE was granted.

3. JNTU addressed a communication on 8 September 2021 to theCommissioner for Technical Education seeking the approval of the StateGovernment for granting affiliation to new courses/increase in intake inthe Under Graduate[4] courses for 2021-22. The communication noted,however, that the final affiliation for the new seats/increase in seatswould be subject to fulfillment of infrastructure and qualified facultyverified by the JNTU Fact Finding Committee.

4. On 11 September 2021, the Commissioner of TechnicalEducation addressed a communication to the Secretary, Higher Education(TE) Department requesting the Government to examine the request ofthe institutions for the proposed introduction of new courses/variation inthe intake of the existing engineering colleges which had offered UGlevel courses from 2021-22.

5. A batch of petitions was instituted before the High Court inwhich the principal ground of challenge was that once AICTE had grantedits approval, it was not open to the affiliating University to predicate thegrant of its affiliation on the issuance of an NOC by the State Government.This submission weighed with the High Court while passing the interimorders. The High Court was of the view that the decision of this Court inJaya Gokul Education Trust (supra) would support the contention ofthe institutions. Hence, it issued the interim directions which have beennoted earlier. The interim orders of the High Court have been called intoquestion by JNTU.

2 “AICTE”

3 (2000) 5 SCC 231

4 “UG”

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A6. Mr C S Vaidyanathan, Senior Counsel has appeared on behalfof JNTU, while Mr S Niranjan Reddy, Senior Counsel, has appeared onbehalf of the institutions.

7. The submission which has been urged on behalf of JNTU isthat the regulations of JNTU expressly contemplate a role for the StateBGovernment and the purpose of seeking an NOC of the State is to ensurethat it can duly consider the needs of the area concerned and whetherthe proposed course or, as the case may be, additional intake, would beconsistent with the overall policy of the State. Moreover, it was urgedthat the decision of this Court in Jaya Gokul Education Trust (supra)has been subsequently considered in several decisions and has beenCdistinguished. The importance of the role of the State, it has beenemphasized, has been underscored in subsequent decisions of this Court,including in the case of JNTU itself. In this backdrop, it is urged that itwas not appropriate for the High Court to issue an interim direction forcounselling of students, particularly when neither the NOC of the StateDGovernment had been granted nor the process of affiliation wascompleted. The decisions on which reliance has been placed by Mr C SVaidyanathan would be considered in the course of the discussion.

8. On the other hand, Mr S Niranjan Reddy, learned senior counselurged that the challenge which was addressed before the High CourtEwas predicated on the insistence of JNTU that it must receive the NOCof the State Government before it proceeds with the process of affiliation.The learned Senior Counsel submitted that the institutions do not disputethe statutory authority of JNTU to conduct the affiliation process, butonce approval was granted by AICTE, JNTU’s further recourse to theState Government for its NOC would be contrary to the Central legislationFby which AICTE is governed.

9. At the outset, it is necessary to advert to the provisions of theRegulations governing JNTU. Regulations 5.5, 5.6 and 6.1 have a crucialbearing on the controversy and are, hence, extracted below:

G“5.5The existing College / Institute after obtaining approval/awaiting approval from AICTE, has to obtain the requisitepermission from the State Government. Later, the College/Institute can apply for affiliation to the University on orbefore the cut-off date prescribed by the University through H

online application for the academic year annually. Noapplication for grant of affiliation will be considered afterthe cut-off date. However, the Grant of Affiliation by theUniversity is subjected to approval from AICTE/PCI/StateGovernment as the case may be.

5.6The permission for establishing Colleges and starting of newprograms in the existing Colleges shall be considered bythe University as per the priority/policy of the StateGovernment if any. Hence, the College /Institute shall obtainprior permission from the State Government to start a newProgram/College.

6.1The applications for issue of NOC for Increase in Intake/Closure of Course or College/Institution / Change of Name/Change of Site/Location or any other matter whereUniversity NOC is required shall be accompanied by theresolution from Society/Management. Further, for startinga new Course/Increase in intake/Change of Site/Locationof the existing College/Institute, prior permission from theState Government is mandatory.”

10. Regulation 5.5 expressly embodies the requirement of thepermission of the State Government after an existing college or institutionhas obtained the approval or, as the case may be, is awaiting the approvalof the AICTE. Later, the institution can apply for affiliation by JNTU onor before the cut-off date. Regulation 5.6 stipulates that the permissionfor establishing colleges and starting of new programmes in existingcolleges would be considered by JNTU in accordance with the priority/policy of the State Government and, hence, the prior permission of theState Government is required. Likewise, Regulation 6.1 makes itmandatory to obtain the prior permission of the State Government eitherto start a new course or, for that matter, to increase the intake capacityof an existing course.

11. The role of the State Government has been reiterated inseveral decisions of this Court. At the present stage, it is material to citetwo of those decisions. Significantly, as we shall note, the earlier decisionin Jaya Gokul Education Trust (supra), upon which reliance was placedby the High Court has also been considered in that context.

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A12. In Jawaharlal Nehru Technological University Registrarv Sangam Laxmi Bai Vidyapeet and Others[5], a two-Judge Bench ofthis Court considered the provisions of Section 20 of the TelanganaEducation Act 1982 under which permission is required, inter alia, foropening new courses. In that context, the Court observed:

B“14.A bare reading of the aforesaid provisions of section 20(1)makes it clear that the survey is conducted so as to identifythe educational needs of the locality would definitely includewithin its ken how many institutions are operating in thearea and whether there is any further requirement ofopening educational institutions/new courses in existingCcolleges, and it is also imperative under section 20(3)(a)(i)that educational agency has to satisfy the authority thatthere is a need for providing educational facilities to thepeople in the locality. In case there are already a largenumber of institutions imparting education in the area theDcompetent authority may be justified not to grant the NOC, for permitting an institution to come up in the area.

15. The provisions contained in section 20 are wholesome andintend not only to cater to the educational needs of the areabut also prevent the mushroom growth of the institutions/Ecourses. In case institutions are permitted to run each andevery course that may affect the very standard of educationand may ultimately result in substandard education. Thereis already a paucity of well qualified teachers in a largenumber of institutions and the available seats in Pharmacycourse in the Hyderabad city are remaining vacant everyFyear in spite of the reduction in a number of seats. It hadnot been 10 possible to fill up the available vacancies due tononavailability of students. Thus, it is apparent that when30 institutions in Hyderabad city are already runningPharmacy course, the refusal to grant NOC by theGUniversity was wholly justified.

16. Apart from the provisions contained in section 20, whenwe consider Regulations 5.2 and 5.3 which clearly providethat a new college proposing to offer technical education H5 (2019) 17 SCC 729

with the University affiliation shall first seek a NOC fromthe University before applying to AICTE/PCI/any otherstatutory body. Regulation 5.3 provides that the permissionfor starting of new programmes in the existing colleges shallbe considered by the University as per the priority/policy ofthe State Government if any.”

On the basis of the above analysis, the Court held that it waserroneous for the High Court to hold that it was not permissible for theState Government to frame a policy and that JNTU was bound to issueits NOC.

13. A more recent decision is a judgment of a three-Judge Benchof this Court in A P J Abdul Kalam Technological University andAnother v Jai Bharath College of Management and EngineeringTechnology and Others[6]. In that decision, the importance of the rolewhich is played by the State and by the affiliating University has againbeen emphasized and it has been noted that it would be open to the StateGovernment to even prescribe standards higher than those recognizedby AICTE. Adverting to the decision in Jaya Gokul Education Trust(supra), it has been noted that it has been distinguished subsequently.The Court noted that after the advent of the AICTE Regulations,applications for extension of approval are processed online on the basisof self-disclosure. Hence, it is all the more necessary for the Universitiesto conduct the process of affiliation with scrupulous care in order toensure that the interest of students is not imperilled.

14. In this backdrop, at the point of time when the High Courtpassed its interim orders, neither had the State granted its NOC nor hadJNTU granted affiliation. During the pendency of the proceedings, theHigher Education (TE) Department of the Government of Telanganahas granted its NOC on 1 November 2021. The process of affiliation isyet to be completed by JNTU. In this backdrop, the High Court oughtnot to have issued an interim direction so as to allow the institutionsconcerned to participate in the second round of counselling. Issuing sucha judicial fiat even before the process contemplated by the Regulationsis complete is likely to prejudice the students, often, in an irretrievablemanner, in the event that the affiliation is eventually denied. Experienceindicates that the creation of equities in favour of students leads to serious A

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Aissues subsequently, when the interim orders of the High Court lead tothe admission of the students to an institution which may eventually bedenied affiliation. The interim direction cannot be sustained.

15. Since the State Government has granted its NOC, JNTU hasindicated in its submissions, a willingness to conduct the process ofBaffiliation. Mr C S Vaidynathan stated that JNTU will conduct theprocess of affiliation within a period of ten days.

16. Once the process of affiliation is complete, the High Courtcan be duly apprised of the result, in relation to each institution whichhas applied for permission. Meantime, the interim order would remainCstayed, to abide by the final result of the affiliation process.

17. We accordingly dispose of the appeals in terms of the followingdirections:

(i) Since the State of Telangana has granted its NOC on 1November 2021, JNTU shall complete the process ofDaffiliation strictly in accordance with its Regulations withina period of ten days;

(ii) After JNTU completes the process of affiliation, after dueverification and inspection of the infrastructure and otherfacilities available at the institutions concerned, an affidavitEshall be filed before the High Court of Telangana indicatingthe outcome of the process;

(iii) Until the steps indicated in (ii) above are complete, the interimdirection of the High Court shall continue to remain stayed;and F

(iv) Depending upon the outcome of the process of affiliation,the High Court would be at liberty to take up the matterand issue such further directions as may be deemednecessary.

18. We clarify that this court has not issued any mandate orGdirection for breaching the time lines which have been prescribed byAICTE for completion of the process of approval, affiliation andadmissions. All the requirements of AICTE in regard to the last date forthe completion of admissions shall be duly complied with.

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19. We leave it open to the High Court to pass appropriate ordersin the case of each institution based on the decision of the affiliatingUniversity. After the decision of the University is communicated, theHigh Court may take an appropriate decision in regard to the compliantinstitutions.

20. Pending application, if any, stands disposed of.

Bibhuti Bhushan Bose

Appeals disposed of.

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