Apj Abdul Kalam Technological … vs Jai Bharath College Of Management … on 10 December, 2020


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Supreme Court of India

Apj Abdul Kalam Technological … vs Jai Bharath College Of Management … on 10 December, 2020

Author: V. Ramasubramanian

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

                                                                         REPORTABLE


                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION


                                        CIVIL APPEAL NO. 4016 OF 2020
                               (@ Special Leave Petition (Civil) No.11482 OF 2020)



                         APJ ABDUL KALAM TECHNOLOGICAL
                         UNIVERSITY & ANR.                              ….APPELLANT(S)


                                                     VERSUS



                         JAI BHARATH COLLEGE OF MANAGEMENT
                         AND ENGINEERING TECHNOLOGY & ORS. ….RESPONDENT(S)




                                                 JUDGMENT

V. RAMASUBRAMANIAN, J.

Signature Not Verified

1. Leave granted.

Digitally signed by
Madhu Bala

2. Aggrieved by the order passed by the Division Bench of the
Date: 2020.12.10
16:19:51 IST
Reason:

Kerala High Court directing the Vice Chancellor of the University
to reconsider the application for affiliation of a new B.Tech

course, submitted by the first respondent, which is a self­

financing Engineering College, solely on the basis of the extension

of approval granted by the All India Council for Technical

Education (hereinafter referred to as “AICTE”), the APJ Abdul

Kalam Technological University, which is a State University and

its Vice Chancellor have come up with this appeal.

3. We have heard Mr. Chander Uday Singh, learned Senior

Counsel appearing for the appellant­University, Mr. S.

Krishnamoorthy, learned Counsel appearing for the first

respondent­College, Ms. Priyanka Prakash, learned Counsel

appearing for the second respondent­State and Mr. Anil Soni,

learned Counsel appearing for the third respondent­AICTE. We

have also heard Mr. C. Arayama Sundaram, Mr. Gopal

Sankaranarayanan and Mr. P.S. Narasimha, learned Senior

Counsel appearing for the applicants seeking

intervention/impleadment and vacation of stay.

4. It appears that despite the mushroom growth of the self­

financing Engineering Institutions in the neighbouring States, the

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State of Kerala had only 15 Engineering Colleges with an annual

intake of only 4844 students till the year 1997. But in the past

more than two decades, there was a spurt in the growth of self­

financing Engineering Institutions in the State. The position as on

date is that there are 149 Engineering Colleges in the State of

Kerala with a total annual permitted intake of 47,420 seats.

5. In addition, there are also six Central Government

Engineering Institutions in the State.

6. Therefore, with a view to regulate technical education in

the State, the State of Kerala enacted the APJ Abdul Kalam

Technological University Act, 2015 (hereinafter referred to as “the

University Act”). Some of the Objects of the University as

indicated in Section 5 of the Act 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
institutions affiliated to the University.

xxxxx

(k) to substantially increase enrolment in Postgraduate
education and research programmes in the colleges and

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institutions with the aim of promoting engineering research,
development and innovation;

(l) to support the establishment of Centres of excellence
for multidisciplinary applied research in specific thematic
areas;

(m) to improve the learning skills of the students by
constantly and continuously improving and upgrading the
academic quality and standards of faculty;

(n) to introduce and sustain innovative systematic quality
improvement programmes in the field of technical
education.”

7. The powers and functions of the University enlisted in

Section 8 include the following:

“xxxxxxx

(iii) to lay down the norms and standards for the
establishment, maintenance, administration, supervision
and recognition of colleges and centres maintained by the
University.

(iv) to affiliate to itself institutions as constituent colleges
or autonomous colleges or regular colleges or colleges with
academic autonomy in accordance with the provisions of this
Act and the Statutes, Ordinances and Regulations and to
withdraw affiliation of colleges obtained in violation of
Statutes of the University.;

(v) to confer academic autonomy to affiliated colleges,
institutions or a department of the affiliated colleges or
institutions or a department maintained by the University.

xxxxxxxx

(vii) to hold examinations and to confer degrees,
postgraduate degrees, diplomas, certificates and other
academic distinctions to persons who, ­

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(a) shall have pursued a prescribed course of study in
the University or any college or institutions thereunder
and shall have passed the prescribed examinations of
the University unless exempted therefrom in the
manner prescribed; or

(b) shall have carried on research satisfactorily under
conditions as may be prescribed and which has been
duly evaluated;

xxxxxxxx

(xiv) to provide for the inspection of affiliated colleges and to
issue such directions as the University may deem fit;

xxxxxxxx

(xviii) to recommend to the Government to take over, in the
public interest, the management of colleges or institutions
where irregularities or dereliction of criminal nature by the
management of such college or institution are prima facie
evident to the committee of enquiry appointed by the
University.”

8. Sections 60 to 66 provide for affiliation and recognition,

procedure for permission, continuation of affiliation, withdrawal

of affiliation etc. Section 60 of the Act, which prescribes the

conditions subject to which affiliation can be granted by the

University, reads as follows:

60. Affiliation and recognition.­ (1) The University can
affiliate any of the Engineering Colleges or Institutions
imparting education in technology owned by Government of
Kerala or Government controlled societies, Private aided and
Private unaided self­financing educational agencies, which,
before the date of commencement of this Act remained
affiliated to the different Universities, except Deemed
Universities in the State of Kerala, provided they meet the
criteria prescribed under this Act, Ordinances and

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Statutes for affiliation, including but not confined to
availability of faculty, administrative machinery,
infrastructure (buildings, laboratories etc.) which will be
laid down by the University from time to time under the
provisions of this Act. Such colleges meeting the specified
criteria can be affiliated to the University as (i) regular
colleges or (ii) autonomous colleges (iii) colleges with
academic autonomy or (iv) institutions. The affiliation of such
institutions to other Universities in the State except Deemed
Universities, shall stand transferred to the University on and
from the date of commencement of this Act, subject to the
conditions that the affiliation of these colleges or institutions
in respect of the students admitted to Engineering courses
shall continue till those batches of students complete their
courses, the examinations of all such students shall be
conducted by the Universities to which they were attached,
degrees, postgraduate degrees or diplomas or other
distinctions shall be awarded by such Universities:

Provided that the institutions in the technological
branch maintained by other Universities of the State as their
departments or their respective constituent colleges or the
engineering colleges or teaching institutions under the
deemed universities and the National Institutes established
by the Central Government shall not come under the
jurisdiction of the University.

(2) The Educational Agency applying for affiliation
or recognition and whose college or institution has been
granted affiliation or recognition, shall give and comply with
the following undertaking:­

(i) that the provisions of this Act, or any other Acts
passed by the State Legislature related to Engineering
field in the State, rules made thereunder and Statutes,
Ordinances, Regulations, standing orders and
directions of the University shall be observed;

(ii) that there shall be a separate Governing Body or
Managing Council for an affiliated college or group of
colleges receiving financial assistance from the
Government or the University;

(iii) that the number of students admitted for courses
of study shall not exceed the limits prescribed from

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time to time, by the University, the Government,
Central or State Councils or authorities in the
concerned discipline as the case may be;

(iv) that there shall be suitable and adequate physical
facilities such as building, laboratories, libraries,
equipments required for teaching and research, hostel
and other infrastructure facilities as the case may be,
prescribed by Statutes, Ordinances and Regulations;

(v) that the financial resources of the college or
institution shall be such as to make due provision for
its continued maintenance and working;

(vi) that the strength and qualifications of teaching and
non­teaching staff of the affiliated colleges and the
emoluments and the terms and conditions of service of
the staff of affiliated colleges shall be such as may be
prescribed by the University and which shall be
sufficient to make due provision for courses of study,
teaching or training or research, efficiently;

(vii) that the services of all teaching and non­teaching
employees and the facilities of the college to be
affiliated shall be made available for conducting
examinations and for promoting other activities of the
University;

(viii) that the directions and orders issued by the
Chancellor, Vice­Chancellor and other officers of the
University in exercise of the powers conferred on them
under the provisions of this Act, Statutes, Ordinances
and Regulations or any other Acts passed by the State
Legislature in this regard, shall be complied with;

(ix) that, there shall be no transfer of the management
or ownership of the college without previous sanction
of the University;

(x) that the college or institution shall not be closed
without previous sanction of the University;

(xi) that in the event of disaffiliation or de­recognition
or closure of the college or institution, all the assets of

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the college or institution including building and
equipment which have been constructed or created out
of the amount paid as a grant­in­aid by the
Government or the University Grants Commission
shall vest in the Government.

9. While section 60 extracted above, lays down in detail, the

criteria for and the conditions subject to which, affiliation can be

granted to an institution, Section 63 of the University Act

indicates the procedure for continuation of affiliation. It reads as

follows:

63. Continuation of affiliation. ­ (1) The affiliated college or
recognised institution may apply for continuation of
affiliation or recognition for the courses of study for which
affiliation or recognition was granted ordinarily six months
prior to the date of expiry of such affiliation or recognition.
The University shall follow the procedure prescribed in
Statutes, for grant of continuation of affiliation.
(2) The affiliated college or recognised institution may
apply for affiliation or recognition for additional courses
of study and the same shall be considered by the
University following the procedures or rules prescribed
in this regard in the Statutes.

(3) An affiliated college with at least six years standing as an
affiliated college may apply for permanent affiliation in the
manner as may be prescribed in the Statutes and the
University shall consider such applications in such manner
as may be prescribed.

10. The first respondent is a self­financing Institution which

was earlier offering B.Tech courses in five disciplines with an

annual permitted intake of 60 students in each of the disciplines.

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After closing the course in one particular discipline, the first

respondent applied in February/March­2020 seeking approval of

the AICTE for starting a new course in “Artificial Intelligence and

Data Science” with a permitted annual intake of 60 students,

from the Academic Year 2020­21. The application was in

accordance with the AICTE Approval Process Handbook 2020­21,

issued in terms of the AICTE (Grant of Approvals for Technical

Institutions) Regulations, 2020.

11. On 13.06.2020, AICTE granted approval to the first

respondent, for starting the newly proposed course, even while

granting extension of approval for the existing courses.

12. Simultaneously with the submission of the application to

the AICTE, the first respondent also submitted an application for

affiliation to the appellant­University, in February/March 2020.

The first respondent also paid the Inspection Fee/Affiliation Fee.

13. But even before the first respondent took a decision to start

a new course, something happened in the State of Kerala. A study

conducted by a group of academic experts seems to have revealed

that there was a steady decline in the actual intake of students in

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self­financing engineering colleges. As against the permitted

intake of 58,165 students for the academic year 2015­16, only

37,007 students got admitted leaving 19,468 seats vacant. The

number of vacant seats rose to 20,038 in the academic year

2016­17 and to 22,819 in the academic year 2017­18.

14. Therefore, based on the study conducted by the group of

academic experts, the Government issued an order in G.O. (Rt)

No.1039/2019/HEDN dated 22.06.2019. It was directed by this

Order that permission for starting new courses in Engineering

shall be granted only if three conditions are satisfied namely: (i)

that the college should have NBA accreditation; (ii) that the

admission of students in the previous academic years should

have been more than 50% of the sanctioned intake; and (iii) that

the new course should be innovative.

15. Following the said Government order, the Syndicate of the

appellant­University resolved in its meeting held on 04.02.2020 to

fix the following norms for the grant of affiliation to new programs

based on the recommendation of the Academic Council: (i) that at

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least one of the existing programs should have NBA accreditation;

(ii) that the average annual intake of the institution for the

previous three years should be more than 50% of the sanctioned

intake; (iii) that the proposed programme should have AICTE

approval and NOC from State Government; and (iv) that the

proposed programme should have industry demand/employment

potential.

16. Thereafter, a sub­committee was constituted for the

purpose of recommending affiliation for new courses or

programmes for the affiliated colleges who have submitted

applications for starting new programmes. This sub­committee

resolved in its meeting held on 20.03.2020 to suggest the

following criteria for the consideration of the Syndicate of the

University:­

1. The sub­committee examined all the 50 proposals
received till 19­03­2020 from various colleges for granting
affiliation to new programs/additional intakes. Upon
scrutiny of each application in line with the criteria
suggested by the Syndicate as cited above, 21 institutions
are found to be eligible. The details of these 21 institutions
and programs/courses applied are attached as Annexure 1.
Accordingly, the sub­committee recommends that the
proposals from these 21 institutions for starting new

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programs/additional intake be favourably considered by the
Syndicate for issuing NOC for granting affiliation.

2. The sub­committee recommends that the applications
for BVoC courses be considered by the Syndicate for
appropriate policy decisions.

3. The sub­committee recommends that the applications
for BVoC courses be considered by the Syndicate/refer the
matter to the Director of Technical Education for appropriate
policy decisions.

4. The sub­committee identified two case wherein the
institutions are having NBA accreditation but with
percentage intake less than 50. These two cases are referred
to the Syndicate for appropriate decisions.

5. The sub­committee recommends that for the courses
listed in Annexure 1 detailed syllabus and curriculum are to
be framed in a time bound manner well before the
commencement of the courses.

17. Finding that the Government Order G.O. (Rt) No.1039,

dated 22.06.2019 and the resolution of the Syndicate dated

04.02.2020 has led to an unfavourable climate with the sub­

committee not recommending the grant of affiliation for their

proposed new course, the first respondent­College filed a writ

petition in Writ Petition (C) No.12709 of 2020 before the High

Court of Kerala. It appears that the writ petition was filed on

23.06.2020, seeking the following reliefs namely: (i) to set aside

the Government Order dated 22.06.2019; (ii) to direct the

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University to grant affiliation for the newly proposed course for

the academic year 2020­21; (iii) to quash the resolution of the

Syndicate dated 04.02.2020, as communicated by the Order of

the Registrar of the University dated 10.06.2020; (iv) to direct the

University to consider the application for affiliation of the

proposed course, without insisting on NBA accreditation and

without insisting on NOC from State Government; and (v) to grant

affiliation for the newly proposed course without insisting on any

criteria based upon the report of the sub­committee.

18. By sheer coincidence, the 13th meeting of the Syndicate of

the appellant­University was held on 24.06.2020, the day

following the date on which the first respondent College filed the

writ petition before the High Court. This Syndicate meeting was

chaired by the Vice Chancellor of the University. It was attended

by a total of nine persons, of which one was the Principal

Secretary, Higher Education Department of the Government of

Kerala, and another was the Director of Technical Education.

The rest were academicians. In this meeting, the Syndicate

examined the list of colleges which had applied for new

13
courses/programmes, without any NBA accreditation. Finding

that even colleges which did not have NBA accreditation had

been granted approval by AICTE, the Syndicate resolved in its

meeting held on 24.06.2020 that affiliation can be granted even

to colleges without NBA accreditation, subject to the satisfaction

of the following criteria: (i) that the Institution should have more

than 50% pass for the outgoing students at the time of

application for affiliation; (ii) that the Institution should have

most recent academic audit overall score of “Good”; and (iii) that

the Institution should have three years average intake of more

than 50% of the sanctioned intake.

19. Though the first respondent filed the writ petition on

23.06.2020 challenging the order of the University dated

10.06.2020 and though the earlier Syndicate Resolution dated

04.02.2020 (on which the order of the Registrar dated

10.06.2020 was based) stood modified by the next Syndicate

Resolution dated 24.06.2020, the first respondent did not seek

any amendment of the prayer. The net result was that one of the

orders (of the University) impugned in the writ petition stood

14
amended, by the time the writ petition was heard, but the

amendment was not under challenge.

20. The writ petition filed by the first respondent challenging

the denial of affiliation for starting a new B.Tech course in

Artificial Intelligence and Data Science, was taken up along with

similar writ petitions filed by other colleges (including those filed

by the Colleges, which have now come up with applications for

intervention/impleadment and for vacation of interim order) and

all of them were disposed of by a learned Judge of the High Court

by a Judgment dated 06.08.2020. By the said Judgment, the

learned Judge held: (i) that in view of the requirements of Section

14 of the University Act read with Section 30(2)(xiv), the

Syndicate cannot be said to be lacking in authority for fixing the

norms for affiliation; (ii) that the norms fixed by the Syndicate in

its resolution dated 04.02.2020 as communicated by the Order of

the Registrar dated 10.06.2020 would be applicable to both

programmes and courses; (iii) that in view of the resolution of the

Syndicate dated 24.06.2020, NOC from the State Government

15
and NBA accreditation are no longer necessary; (iv) that as a

consequence, the State Government Order dated 22.06.2019 was

liable to be set aside; and (v) that the University may have to

reconsider one portion of its decision dated 24.06.2020, after

taking note of the recommendation contained in Annexure 1 and

Clause 7 of Annexure 14 of the Approval Process Handbook and a

clarification issued by AICTE. Annexure 1 of the Approval Process

Handbook contained a recommendation to discourage the

creation of additional seats in traditional disciplines, but to

encourage conversion of current capacity in traditional disciplines

to emerging new technologies. Clause 7 of Annexure 14 made

accreditation mandatory for increase in intake/starting new

courses.

21. Not satisfied with the partial relief granted and the

directions issued by the learned Judge, the first respondent filed

a writ appeal in Writ Appeal No.1073 of 2020 before the Division

Bench of the High Court. The other Colleges who were writ

petitioners, also filed separate writ appeals.

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22. By the common Judgment dated 08.09.2020 impugned in

this appeal, the Division Bench partially allowed the writ appeals,

holding: (i) that the Syndicate did not have the power to take the

decisions dated 04.02.2020 (as communicated on 10.06.2020)

and 24.06.2020, as there was no University Statute in force on

that date and that in the absence of the Statute, the Vice­

Chancellor alone had the power under section 14(6) of the Act to

make any recommendation to the Board of Governors in the

matter of affiliation; and (ii) that the University cannot go beyond

AICTE Regulations.

23. Aggrieved by the said judgment of the Division Bench of the

Kerala High Court, the University has come up with the above

appeal. It is stated across the Bar that the appellant­University

has filed similar appeals against the very same impugned

Judgment and those appeals are yet to be numbered.

24. Though the learned Single Judge dealt with several issues,

the focus of the Division Bench was mainly on two issues namely:

(i) the power of the Syndicate to lay down norms for the grant of

17
affiliation; and (ii) the very power of the University to go beyond

the AICTE Regulations.

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 study made by a College which already

holds affiliation, should be considered by the University following

the procedure prescribed in the Statutes. Admittedly the first

University Statute was issued only on 07.08.2020. Therefore the

Division Bench of the High Court held that on the date on which

the applications for affiliation for additional courses of study were

made by the Colleges and processed by the University, there was

no Statute of the University. Hence the Division Bench concluded

that the only option available in such circumstances where there

was no Statute, was for the Vice Chancellor to take recourse to

the power available under Section 14(6) of the University Act. But

this power, in the opinion of the High Court, has to be exercised

by the Vice Chancellor with the approval of the Board of

Governors. As this was not done, the Division Bench remanded

18
the matter back to the Vice Chancellor to follow the course of

action available under Section 14(6).

26. It is relevant to note at this stage that the power of the

Syndicate to lay down norms and standards for affiliation, which

it did as per its Resolutions, was upheld by the learned Single

Judge, on a reading of Section 30(2)(xiv) of the Act. The Judgment

of the learned Single Judge was delivered on 06.08.2020,

upholding the power of the Syndicate, even in the absence of the

Statutes of the University, to lay down norms for affiliation for

additional courses. However, on the very next day namely

07.08.2020, the First Statutes of the University were also issued.

27. Therefore, when the colleges filed writ appeals and argued

about the procedure to be followed under Section 14(6) in the

absence of the Statutes, the appellant­University relied upon the

Statutes issued on 07.08.2020 and the power of ratification.

Statute No.93 was brought to the notice of the Division Bench to

show that all matters relating to affiliation fell within the scope of

the powers of the Syndicate. But the Division Bench not only

rejected the argument of ratification, but also rejected the reliance

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placed upon Statute No.93 on the ground that the power under

Statute No.93 may relate only to the grant of affiliation of a

teaching course or any subject in a teaching course, conducted in

any of the colleges which are not affiliated.

28. But we do not think that the view taken by the Division

Bench both with regard to the prescription contained in Section

63(2) and with regard to the powers of the Vice Chancellor under

Section 14(6), is in sync with the scheme of the University Act.

Section 63(2) which we have already extracted in paragraph 9

above, actually deals with the grant of affiliation or recognition for

additional courses to an affiliated college or recognized

institution. This provision does not deal with the laying down of

norms and standards. The Division Bench overlooked the fact

that what was in issue before the Court was a Resolution passed

by the Syndicate, first on 04.02.2020 as communicated by the

Order of the Registrar dated 10.06.2020 and then on 24.06.2020.

In other words what was in question in the writ petitions filed by

the Colleges, was not merely the individual act of grant or denial

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of affiliation for additional courses. The challenge was to the

norms fixed by the Syndicate in its meetings dated 04.02.2020

and 24.06.2020 for the grant of affiliation for additional courses.

Section 63(2) does not deal with the issue of laying down norms

and standards, but deals only with the grant of affiliation for

additional courses in accordance with the procedure prescribed in

the Statutes.

29. The manner in which the Division Bench of the High Court

construed Section 14(6), is also not correct. It will be useful to

extract Sub­sections (5), (6) and (14) of Section 14. They read as

follows:

“14. Powers of the Vice­Chancellor

xxxx

(5) If there are reasonable grounds for the Vice­Chancellor
to believe that there is an emergency which requires
immediate action to be taken, he shall, take such action as
he thinks necessary, and shall, submit for approval in the
next meeting, the grounds for the emergency and the action
taken by him, to such authority or body which, in the
ordinary course, would have dealt with the matter. In the
event of a difference arising between the Vice­Chancellor and
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 to the Chancellor whose decision
shall be final.

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(6) Where any matter is required to be regulated by
Statutes or Regulations but no Statues or Regulations have
been made in that behalf, the Vice­Chancellor shall for the
time being, regulate the matter by issuing such directions as
the Vice­Chancellor thinks necessary, and shall, as soon as
may be, submit them before the Board of Governors or other
authority or body concerned for approval.

xxxx

(14) The Vice­Chancellor shall exercise such other powers
and perform such other duties as may be conferred upon the
Vice­Chancellor by or under this Act and Statutes.”

30. On a reading of Section 14(6), the High court came to the

conclusion that the Vice Chancellor, in the absence of Statutes,

may be entitled to issue directions for regulating certain matters,

but if he does so, he has to take the approval of the Board of

Governors. But the High Court overlooked several facts. First is

that Sub­section (5) of Section 14 confers emergency powers on

the Vice Chancellor and Sub­section (14) recognises the residuary

powers of the Vice Chancellor. Second is that even sub­section (6)

uses the words “Board of Governors or other authority or

body concerned for approval”. Therefore, it is not necessary

that the Vice­Chancellor, after issuing directions, should take the

approval of the Board of Governors alone. He was entitled to take

the approval of “the other authority or body concerned”.

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31. In the case on hand, the Syndicate of the University

comprised of nine persons, including the Vice Chancellor, the

Principal Secretary to the Higher Education Department of the

Government of Kerala, the Director of Technical Education and a

few academicians. All that the Syndicate wanted from the

Colleges seeking affiliation for additional courses, was the

fulfillment of just three simple criteria namely (i) more than 50%

pass for the outgoing students at the time of application for

affiliation; (ii) most recent academic audit overall score of “Good”;

and (iii) three years average intake of more than 50% of the

sanctioned intake.

32. As we have seen earlier, the power to lay down norms and

standards and the power to affiliate to itself the Colleges, flow out

of clause (iii) and (iv) of Section 8. This power is exercisable by

University in accordance with the provisions of the Act, the

Statutes, Ordinances and Regulations. It is the very same Section

8 which confers power upon the University to make Statutes,

Ordinances and Regulations, under clause (xxvi).

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33. Section 22 speaks of different authorities of the University.

Under Section 22, as it was originally drafted, the University shall

have a Board of Governors, an Executive Committee, the

Academic Committee, the Research Council and such other

bodies as may be designated by the Statutes, to be the authorities

of the University. The University Act 17 of 2015 was amended by

A.P.J. Abdul Kalam Technological University (Amendment) Act,

2018. The Amendment Act, though notified in the Kerala Gazette

on 03.07.2018, came into effect from 08.12.2017. Through this

Amendment Act, the nomenclature of the ‘Academic Committee’

was changed to ‘Academic Council’ and the nomenclature of

‘Executive Committee’ was changed to ‘Syndicate’. Therefore,

wherever there was a reference in the Act, to the ‘Executive

Committee’, it had to be construed as a reference to the

‘Syndicate’.

34. Section 30(1) vests upon the Syndicate, the executive

powers of the University, including the general superintendence

and control over the institutions of the University. Sub­section (2)

24
of Section 30 lists out the powers available to the Syndicate,

subject to the provisions of the Act and the Statutes. The power

under Clause (iii) of Sub­section (2) of Section 30 is of relevance

and it reads as follows:­

“(2) Subject to the provisions of this Act and the Statutes,
the Syndicate shall have the following powers, namely:­

(i) ………

(ii) ………

(iii) to propose norms and standards for affiliating
colleges as regular colleges or autonomous colleges or
constituent colleges of the University.”

Thus, the source of power for the Syndicate to prescribe

norms and standards for affiliation, is Section 30(2). Section

30(2) begins with 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 or controls the power of the Syndicate,

then the Syndicate may be bound by such prescription. But if

there is nothing in the Act/Statutes or if there are no Statutes at

all, then it cannot be said that the power itself is unavailable.

What is important to observe is that the power of the Syndicate

to propose norms and standards flows out of the Act and not

out of the University Statutes. Therefore, the absence of

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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 have been

exercised. The High Court erred in thinking that in the absence of

the Statutes, recourse was available only to the Vice Chancellor

under Section 14(6), overlooking for a moment that the power

under Section 30(2)(iii) would not become otiose due to the

absence of the Statutes.

35. Section 42 of the Act which speaks about the issue of

Statutes and the matters for which provisions may be made in

the Statutes, makes it clear that “the conditions and procedures

for affiliation of Colleges and for withdrawing the affiliation of

colleges”, is one of the matters that could be provided for in the

Statutes. This is under Clause (xi) of Section 42. Therefore, it is

clear that the Statutes can provide for the conditions and

procedure for affiliation. The absence of the Statutes (till

07.08.2020) would only mean the absence of Statute­stipulated

conditions and procedure for affiliation, but not the absence of

the very power of the Syndicate flowing out of Section 30(2)(iii).

Therefore, it was not necessary for the Vice Chancellor to fall

26
back upon Section 14(6) on the ground that there were no

Statutes at that time.

36. Even assuming for a moment that the absence of the

Statutes would take one automatically to Section 14(6), the

inference drawn therefrom by the High Court may not be correct.

Section 14(6) says that in the absence of a Statute, it is the Vice

Chancellor who has the power to regulate any matter which is

required to be regulated by Statutes or Regulations. It cannot be

interpreted to mean that the Syndicate itself will be powerless in

the absence of the Statutes and that the Vice Chancellor will have

the power. In any case, the language of Section 14(6) is such that

the Vice Chancellor may first regulate the matter by issuing

directions and thereafter submit the same “as soon as may be”

for the approval of the Board of Governors or other authority or

body concerned. By virtue of Section 30(2)(iii), the Syndicate can

be taken to be the “other authority” referred to in Section 14(6). If

we do so, it can be seen that it was the Syndicate, chaired by the

Vice Chancellor which took the impugned decisions in its

meetings held on 04.02.2020 and 24.06.2020 and hence the

27
prescription of norms by the Syndicate, chaired by 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,

the vacuum sought to be filled up by Section 14(6) also

disappeared. Under Section 43(1) of the Act, the State

Government has the power to issue the first Statutes of the

University. Accordingly, the Government issued the first Statutes

on 07.08.2020. There is nothing in the Statutes that appears to

curtail the power of the Syndicate to lay down norms and

standards. Under Clause (xi) of Section 42, the Statutes may

provide for the conditions and the procedure for affiliation. But

the Statutes do not appear to lay down any conditions. Statute

No.93 relied upon by the University seems to have left it to the

Syndicate to prescribe the conditions. Statute No.93 reads as

follows:

“Statute 93 Clause (xlix)
To grant exemption or reduction in the following
mattes and also other mattes not specified here below,
subject to the provisions of the University Act:

a)xxxxx

b)xxxxx

c)xxxxx

d)xxxxx

e)xxxxx

28

f)xxxxx

g) Matters relating to granting of affiliation for a course
of study or any subject in a course of study not
already affiliated to the University, conducted in any of
the colleges.”

38. When the Statutes have not prescribed any conditions for

affiliation but have left it to the Syndicate to take care of matters

relating to affiliation, the function of the Syndicate to lay down

norms and standards by virtue of the powers conferred by Section

30(2), is made free of any fetters.

39. Therefore, the norms prescribed by the Syndicate in its

meeting held on 24.06.2020 under the Chairmanship of the Vice

Chancellor could not have been taken exception to. After all, the

norms which the Colleges have objected to, merely seek to ensure

that at least 50% of the outgoing students had passed their

respective courses and that the Institution should have the most

recent academic audit overall score of “Good”, apart from having

an actual intake of more than 50% of the sanctioned intake in the

preceding three years on an average. We fail to understand how

colleges can demand affiliation for creating additional courses,

when the pass percentage of outgoing students is less than 50%

29
and the Colleges could not even have an average intake of more

than 50% of the sanctioned intake in the preceding three years.

40. Therefore, we are of the view that the High Court was in

error in holding on the first issue that the resolutions passed by

the Syndicate prescribing norms and standards for the grant of

affiliation for additional courses, are ultra vires the Act.

41. Let us now take up the second issue revolving around the

role of the appellant­University vis­a­vis AICTE. A little

elaboration may be necessary as this issue keeps recurring very

often.

42. The AICTE, was actually set up in 1945 as a National

Expert Body to advice the Central and State Governments for

ensuring the Coordinated Development of Technical Education in

accordance with approved standards. After the mushroom growth

of private Engineering Colleges and Polytechnics and the growing

erosion of standards, the Council felt it necessary that it should

be vested with statutory powers to regulate and maintain

standards of Technical Education in the country. Therefore, a

National Working Group was set up in November, 1985. On the

30
basis of the recommendations made by the National Working

Group, the AICTE Act, 1987 was enacted. Section 23(1) of the

AICTE Act empowers the Council to make regulations not

inconsistent with the provisions of the Act and the Rules,

generally to carry out the purposes of the Act. Section 10(1) of the

Act enjoins upon the Council, the duty to take all such steps as

may be necessary for ensuring coordinated and integrated

development of Technical and Management Education and

maintenance of standards. Clause (i) of sub­section (1) of Section

10 empowers the Council to lay down norms and standards for

courses, curricula, physical and instrumental facilities, staff

pattern, staff qualifications, quality instructions, assessment and

examinations. Clause(o) empowers the Council to provide

guidelines for admission of students to Technical Institutions and

Universities imparting technical education. Clause(k) of Sub­

section (1) of Section 10 empowers the Council to grant approval

for starting new Technical Institutions and for introduction of

new courses or programmes in consultation with the agencies

concerned.

31

43. It will be of interest to note that Sub­section (2) of Section

23, which enlists the matters that could be provided for in the

Regulations framed by the AICTE, does not include any of the

powers indicated in Section 10(1). Clauses (a) to (e) of Sub­section

(2) of Section 23 deal with 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 the Council, the

constitution and powers of the Board of Studies etc. But Sub­

section (2) of Section 23 makes it clear that the items listed

therein are without prejudice to the generality of the powers to

make Regulations under Sub­section (1), for carrying out the

purposes of the Act. This is why all Regulations are issued by

AICTE in exercise of the powers conferred by Section 23(1) read

with the relevant clauses of Sub­section (1) of Section 10.

44. The AICTE Act is to be traced to Entry 66 of List­I of the

Seventh Schedule to the Constitution. The A.P.J. Abdul Kalam

Technological University Act issued by the Kerala State

Legislature can be traced to Entry 25 of List­III.

32

45. In R. Chitralekha vs. State of Mysore and Others1, the

Constitution Bench of this Court pointed out that the question

regarding the impact of Entry 66 of List­I on Entry­25 of List­III

must be determined by a reading of the Central Act and the State

Act conjointly. The Court pointed out that a State Law

providing for such standards, having regard to Entry 66 of

List­I, would be struck down as unconstitutional only if the

same is found to be so heavy or devastating as to wipe out

or appreciably abridge the Central field and not otherwise.

The Court also pointed out that if a State law prescribes higher

percentage of marks for extra­curricular activities in the matter of

admissions to colleges, it cannot be said that it would be

encroaching on the field covered by Entry 66 of List­I.

46. The decision of the Supreme Court in R. Chitralekha

(supra) was followed in several cases including the one in State

of A.P. vs. K. Purushotham Reddy and others2. The decision in

K. Purushotham Reddy (supra) arose under very peculiar

1 AIR 1964 SC 1823
2 (2003) 9 SCC 564

33
circumstances. The State of Andhra Pradesh enacted in the year

1986, an Act known as Andhra Pradesh Commissionerate of

Higher Education Act, 1986. The constitutional validity of the

said Act was questioned on the ground of lack of legislative

competence, in view of the University Grants Commission Act,

1956. Though a Full Bench of the High Court rejected the

challenge, the Supreme Court declared the Act as

unconstitutional, by its judgment in Osmania University

Teachers’ Association vs. State of Andhra Pradesh and

Another3. Thereafter, the Government of Andhra Pradesh enacted

the Andhra Pradesh State Council of Higher Education Act, 1988.

This Act was declared as unconstitutional by the High Court, on

the same premise on which the 1986 Act was declared by this

Court as unconstitutional. Therefore, the matter was carried to

this Court. A Two Member Bench of this Court doubted the

correctness of the decision in Osmania University Teachers’

Association (supra), and hence, the matter was referred to a

three­member Bench. The three­member Bench rejected the

3 (1987) 4 SCC 671

34
challenge to the State Act, by following the decision in R.

Chitralekha (supra) and pointed out that when a State Act is in

aid of the Parliamentary Act, the same would not entrench upon

the latter.

47. The law is now fairly well settled that while it is not open to

the Universities to dilute the norms and standards prescribed by

AICTE, it is always open to the Universities to prescribe enhanced

norms. As regards the role of the Universities vis­à­vis the AICTE,

this Court held in Bharathidasan University and Another vs.

All India Council for Technical Education and Others4, that

AICTE is not a super power with a devastating role undermining

the status, authority and autonomous functioning of the

Universities in areas and spheres assigned to them. This view was

followed in Association of Management of Private Colleges vs.

All India Council for Technical Education and Others5.

48. That even the State Government can prescribe higher

standards than those prescribed by AICTE was recognized by a 3­

4 (2001) 8 SCC 676
5 (2013) 8 SCC 271

35
member Bench of this court in State of T.N. and Another vs.

S.V. Bratheep (Minor) and Others6. This principle was later

applied in the case of Universities in Visveswaraiah

Technological University and Another vs. Krishnendu Halder

and Others7 where this Court considered the previous decisions

and summarised the legal position emerging therefrom as follows:

(i) While prescribing the eligibility criteria for admission to
institutions of higher education, the State/University cannot
adversely affect the standards laid down by the Central
Body/AICTE. The term “adversely affect the standards”
refers to lowering of the norms laid down by Central
Body/AICTE. Prescribing higher standards for admission by
laying down qualifications in addition to or higher than those
prescribed by AICTE, consistent with the object of promoting
higher standards and excellence in higher education, will not
be considered as adversely affecting the standards laid down
by the Central Body/AICTE.

(ii) The observation in para 41(vi) of Adhiyaman to the effect
that where seats remain unfilled, the state authorities
cannot deny admission to any student satisfying the
minimum standards laid down by AICTE, even though he is
not qualified according to its standards, is not good law.

(iii) The fact that there are unfilled seats in a particular year,
does not mean that in that year, the eligibility criteria fixed
by the State/University would cease to apply or that the
minimum eligibility criteria suggested by AICTE alone would
apply. Unless and until the State or the University chooses
to modify the eligibility criteria fixed by them, they will
continue to apply in spite of the fact that there are vacancies
or unfilled seats in any year. The main object of prescribing
6 (2004) 4 SCC 513
7 (2011) 4 SCC 606

36
eligibility criteria is not to ensure that all seats in colleges
are filled, but to ensure that excellence in standards of
higher education is maintained.

(iv) The State/University (as also AICTE) should periodically
(at such intervals as they deem fit) review the prescription of
eligibility criteria for admissions, keeping in balance, the
need to maintain excellence and high standard in higher
education on the one hand, and the need to maintain a
healthy ratio between the total number of seats available in
the state and the number of students seeking admission, on
the other. If necessary, they may revise the eligibility criteria
so as to continue excellence in education and at the same
time being realistic about the attainable standards of marks
in the qualifying examinations.

49. Visveswaraiah (supra) principles were reiterated in

Mahatma Gandhi University and Another vs. Jikku Paul and

Others8. The legal position summarised in paragraph 14 of the

report in Visveswaraiah (supra) (extracted above) were quoted

with approval by the Constitution Bench in Modern Dental

College & Research Centre and Others vs. State of Madhya

Pradesh and Others9. 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 the

legislation in question was beyond the legislative

8 (2011) 15 SCC 242
9 (2016) 7 SCC 353

37
competence of the State of Madhya Pradesh”. While

answering this issue, the opinion of the majority was to the effect

(i) that the decision in Dr. Preeti Srivastava and Another vs.

State of M.P. and Others10 did not exclude the role of the States

altogether from admissions; and (ii) that the observations in

Bharati Vidyapeeth (deemed university) and Others vs. State

of Maharashtra and Another11 as though the entire gamut of

admissions was covered by Entry 66 of List­I, has to be overruled.

In the concurring and supplementing opinion rendered by R.

Banumathi, J., in Modern Dental 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

to Government Higher Education Department,

Thiruvanathapuram, Kerala State and Another12, (ii) Mata

10 (1999) 7 SCC 120
11 (2004) 11 SCC 755
12 (2000) 5 SCC 231

38
Gujri Memorial Medical College vs. State of Bihar and

Others13and (iii) Rungta Engineering College, Bhilai and

Another vs .Chattisgarh Swami Vivekanand Technical

University and Another14, to hold in paragraphs 33 to 35 of the

impugned judgment that the University did not have the power to

incorporate any additional conditions for affiliation and that the

AICTE Regulations and the Approval Process Handbook

constitute a complete code having a superior force.

51. But the High Court ought to have noticed that all the above

3 decisions are distinguishable. In Jaya Gokul Educational

Trust (supra), the question whether the State Government, as a

matter of policy, can decline to grant approval for the

establishment of a new Engineering College, in view of the

perception of the State Government that the opening of a new

college will not be in the interest of the students and employment,

was answered in favour of the Institution.

13    (2009) 16 SCC 309
14    (2015) 11 SCC 291


                                      39

52. Thereafter, in Bharathidasan University (supra), the

Supreme Court noted Jaya Gokul Educational Trust (supra)

and came to the conclusion that a careful scanning of the

provisions of the AICTE Act and the provisions of the UGC Act in

juxtaposition will show that the role of the AICTE vis­à­vis 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 Gujri Memorial

Medical College followed Jaya Gokul, without reference to

Bharathidasan University. In any case, as on date

Visveswaraiah, Mahatma Gandhi University and Modern

Dental College hold the field, but apparently, they were not

brought to the notice of the High Court.

53. In Rungta Engineering College (supra), on which the

High Court placed heavy reliance, this Court relied upon the

decisions in State of T.N. and Another vs. Adhiyaman

Educational and Research Institute and Others15 and Jaya

15 (1995) 4 SCC 104

40
Gokul. In Adhiyaman, this Court held that in the case of

institutes imparting technical education, it is not the University

Act and the University but the Central Act and the Council

created under it that will have jurisdiction.

54. Rungta Engineering College did not take note of

Bharathidasan University, B.V. Bratheep, Visveswaraiah

and Mahatma Gandhi University. Therefore, it cannot be said

to reflect the correct position in law.

55. Quite unfortunately the AICTE has filed a counter affidavit

before this Court supporting the case of the first Respondent

College and branding the fixation of additional norms and

conditions by the University as unwarranted. Such a stand on

the part of the AICTE has compelled us to take note of certain

developments that have taken place after 2012 on the AICTE

front.

56. After the advent of AICTE Regulations, 2012, the

applications for extension of approvals are processed by AICTE

only online, merely on the basis of the self­disclosure made by the

41
colleges in their online applications. If all infrastructural facilities

as prescribed by AICTE are found to be available on paper

(whether available at site or not), the AICTE grants extension of

approval.

57. The position ever since 2012 has been that all applications

for approval/extension of approval are processed by AICTE only

online. The AICTE Regulations, 2020, also require under

Regulation 5.6.a. that existing institutions should submit

applications using their unique User ID. Regulation 6.3.a. states

that the applications submitted by the existing institutions will be

processed after confirming that the applicant had fulfilled all the

norms and standards through the procedure as prescribed in the

Approval Process Handbook. Chapter II of the Approval Process

Handbook for 2020­21 makes it clear that the extension of

approval will be based on self­disclosure. Paragraph 13 of the

counter affidavit of the AICTE contains an extract of Clause

2.15.4(b) of APH 2020­21, which confirms that the assessment is

based on self­disclosure on AICTE web portal.

42

58. Though AICTE has reserved to itself the power to conduct

inspections and take penal action against colleges for false

declarations, such penal action does not mean anything and does

not serve any purpose for the students who get admitted to

colleges which have necessary infrastructure only on paper and

not on site. The Regulations of the AICTE are silent as to how the

students will get compensated, when penal action is taken

against colleges which host false information online in their

applications to AICTE. Ultimately, it is the universities which are

obliged to issue degrees and whose reputation is inextricably

intertwined with the fate and performance of the students, that

may have to face the music and hence their role cannot be

belittled. Today, even the universities are being ranked according

to the quality of standards maintained by them. The Ministry of

Human Resources Development of the Government of India

launched an initiative in September 2015, known as National

Institutional Ranking Framework (NIRF), for ranking institutions

including universities in India. The ranking is based on certain

parameters such as: (i) Teaching, Learning and Resources; (ii)

43
Research and Professional Practice; (iii) Graduation Outcomes;

(iv) Outreach and Inclusivity; and (v) Peer Perception. No State

run university can afford to have a laid­back attitude today, when

their own performance is being measured by international

standards. Therefore, the power of the universities to prescribe

enhanced norms and standards, cannot be doubted.

59. In such circumstances, we are of the considered view that

the view taken by the Kerala High Court in paragraphs 33 to 35

of the impugned judgment on issue no.2, is unsustainable. At the

cost of repetition, we point out that while universities cannot

dilute the standards prescribed by AICTE, they certainly have the

power to stipulate enhanced norms and standards.

60. Accordingly, the appeal is allowed and the impugned

judgment of the High Court is set aside. The resolution passed by

the Syndicate on 24.06.2020 in modification of the earlier

resolution dated 04.02.2020 is upheld. As a corollary, the

consequential actions, if any, of the University as regards the first

respondent­College are also upheld. The applications for

44
impleadment/intervention are dismissed and the other pending

applications, if any, shall stand disposed of. There will be no

order as to costs.

…………………………..CJI.

(S. A. Bobde)

……………………………..J.

(A. S. Bopanna)

…..…………………………J.

V. Ramasubramanian)
New Delhi
December 10, 2020

45



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