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 and5
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.
8
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
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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
19
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
20
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)
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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
25
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