GDR Education Society vs State of Chhattisgarh

Sunil Kumar Sinha, J.—Since common question of fact and law are involved in these writ petitions, we have heard them together and they are being disposed of this common judgment. Except the petitioner in W.P. (C) No. 4357/2011, the other petitioners are running various Engineering Colleges in the State of Chhattisgarh. These petitioners applied to All India Council for technical Education (AICTE) for getting approval for increase in their intake capacity, approval for introducing new branches, continuation of new branches in second shift, running of new shift, running of new shift and opening of new branches in different disciplines. The AICTE granted the approval to the respective petitioners for opening of new branches, running of additional shift and increase in their intake capacity as per their applications under The all India Council for Technical Education Act, 1987 (AICTE, Act). After grant of respective approval/recognition as required under AICTE Act, the petitioners wanted to admit the students in Session 2011-2012 in their colleges, but when the notice for counseling was published by the Government, they found that their colleges were not permitted to participate in counseling for the new programmes, increased intake and new shifts etc. for which approvals were granted to them by AICTE. It is at this stage, the writ petitions were filed and it was prayed that a mandamus or suitable direction be issued to the respondents to include the various colleges of the petitioners in the counseling for admitting the students in their institutions as per their approval and recognition granted by the AICTE.

W.P. (C) No. 4357/2011 relates to opening of a new Engineering College. The petitioner of this writ petition is a society. It had applied for allotment of land to open Engineering College. The State vide order dated 22.5.2009 duly allotted 10 acres of land on lease to the petitioner for 30 years with the condition of opening Engineering College within a period of 3 years. The petitioner duly paid required amount of Rs. 2.32 crores and got the lease registered. The petitioner immediately applied for permission for construction of requisite infra-structure before the Municipal Corporation, Bhilai. After getting permission from the Municipal Corporation, the petitioner constructed the building as per its requirement, by an application dated 7.2.2011, the petitioner applied to the AICTE for grant of approval/recognition for opening Engineering Course in its College for Academic Session 2011-2012 with required fee of Rs. 35 lacs. The respondent-AICTE, on 14.7.2011, granted recognition to the petitioner. Since the counseling for Academic Session 2011-2012 was scheduled between 14.7.2011 to 27.7.2011, the petitioner moved an application on 15.7.2011 before the concerned authority of the Government for grant of NOC etc., but the same was refused by communication dated 19.7.2011 (Annexure-P/1) on the ground that the Government has sent a proposal to AICTE for not granting such permissions in the Academic Session 2011-2012, therefore, it was not possible to grant NOC. However the communication also contains that the above restriction is for the Academic year 2011-2012 only, therefore, after removal of the restriction, the application of the petitioner would be considered. The communication which has been sent to the AICTE by State of Chhattisgarh on 14.3.2011 has also been filed by the petitioner as part of Annexure-P/1. The petitioner has challenged the above 2 communications and has prayed for direction to the respondents to permit the petitioner to participate in counseling process of Academic Session 2011-2012 (engineering Courses) as per recognition.

Two other petitioners have also challenged the validity of communication dated 14.3.2011 (Annexure-P/1 in W.P. (C) No. 4357/2011).

The State and their authorities have filed their return. They have contended that the State has not received any information from AICTE with regard to grant of approval in favour of the petitioners. Even the petitioners have not filed any approval letter issued by the AICTE as per Clause 7.1 of the AICTE Approval Process Handbook 2011-2012. So far as grant of permission for participation in the process of counseling is concerned, it has been contended that the State has already decided that no new courses/new colleges/increase in intake including second shift will be permitted in the Engineering Courses in the State of Chhattisgarh and a letter dated 14.3.2011 has been sent to AICTE with detailed reasons. The letter contains that there has been abnormal increase of seats in the Engineering Colleges in the State of Chhattisgarh as in the Academic Session 2010-2011 more than 7,000 out of total 20,130 seats remained vacant; in the previous year i.e. 2009-2010 more than 3,000 out of total 15,740 seats remained vacant. 2 unaided private colleges had applied for issuance of NOC, but one of them has withdrawn and more than 11 colleges were facing acute shortage of students till last year and the situation is likely to remain the same in near future. Therefore, looking to the entire scenario that more than 7,000 seats remained vacant last year in B.E. Courses, the AICTE was informed through the impugned communication thus:-

not to give approval to any new unaided private institute for the BE/B. Pharma/MCA/MBA/D. Pharma Programmes in the state.

not to give extension of approval to second shift to institution already running in the state and permit to merge the admitted student of second shift in first shift itself as a one time measure.

not to permit increase in intake capacity of any course for the above programs.

not to allow any new course in the above programs.

only re-appropriation/change of intake and closure of any course may be allowed, keeping the upper cap of total intake at the level as it was in the previous year or lower than the previous year.

It was further informed by the said communication that the above decision of the Government may be treated as the view of the State Government as per Clause 4.14 of AICTE Regulation 2011 published and notification in the Gazette of India; Extraordinary on 10 Dec, 2010 and as per provision given in point 3.3 & 3.4 of the AICTE Approval Process Hand Book (2011-2012). It was also informed that no separate NOC as required by AICTE will be issued by the State Government of any applicant of the private colleges in this regard.

The Affiliating University has supported the stand taken by the State. It has also objected the manner in which the recognition took place. It has contended that the AICTE proceeded in haste-hurry manner and no proper time was granted to the University to submit the views before grant of recognition to the petitioners. It has contended that even after grant of recognition, without granting affiliation the petitioners cannot be permitted to participate in counseling or to take admissions of the students.

AICTE or its Central Regional Office has not filed the return. However, learned counsel appearing on behalf of these respondents has orally supported the grant of recognition to the petitioners.

Three applications have been filed for permission to intervention i.e. I.A. No. 2 in W.P. (C) No. 3918/2011; I.A. No. 3 in W.P. (C) No. 3727/2011 and I.A. No. 2 in W.R. (C) No. 3991/2011. The interveners are also running private Engineering Colleges. They have also supported the stands taken by the Government and the Affiliating University.

Learned counsel for the petitioners submitted that AICTE is the supreme authority and the decision taken by the AICTE granting recognition to the petitioners in the above manner cannot be challenged by the State or the University on the grounds taken by them in impugned letter dated 14.3.2011. Once the recognition was granted by the AICTE, the State as also the Affiliating University cannot deny permission/affiliation and that has to be granted to the respective institutions. They referred to Entry 66 of List-I and Entry 25 of List-III prepared under Seventh Schedule to the Constitution.

On the other hand, learned counsel for the respondents and Affiliating University submitted that proper procedure was not adopted for grant of recognition. The grant of recognition to the petitioners in no manner confer any right to them to have a no objection certificate from the State and affiliation from the concerned University. The State and the University, keeping themselves within their respective jurisdiction, can refuse the permission and affiliation in suitable matters. No. mandamus can be issued in favour of the petitioners to participate in counseling or to take admission of the students unless a permission is granted by the State and they get proper affiliation from the University.

Learned counsel for the proposed interveners also supported the arguments advanced by learned counsel for the State and University.

We have heard learned counsel for the parties at length and have also perused the records of the writ petitions.

In Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, , the Supreme Court held that "The legislative power in relation to ''education'' was earlier distributed in all the three legislative lists in the Seventh Schedule to the Constitution. Parliament was conferred legislative power in respect of matters specified in Entries 63, 64, 65 and 66 of List I (Union List) while the State legislatures were conferred the power in respect of matters specified in Entry 11 of List II (State List) and Parliament and State legislatures were conferred concurrent power in respect of matters specified in Entry 25 of List III (Concurrent List). By the Constitutions (Forty-second Amendment) Act, 1976, Entry 11 of List II has been deleted and Entry 25 in List III has been enlarged to cover matters which were earlier specified in Entry 11 of List II. In view of the said amendment, the legislative power in respect of education is now conferred exclusively on Parliament in respect of matters specified in Entries 63 to 66 of List I and concurrently on parliament and State legislatures in respect of matters specified in Entry 25 of List III."

In Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, it was observed that there is no power vested in the State under any State law to grant approval and even if it was so vested, it would have been void and the ground of repugnancy alone would be sufficient to quash the State Government''s letter dated 16-8-1996 refusing to give their approval. It was further observed vide Para-27 that the so-called "policy" of the State as mentioned in their counter-affidavit filed in the High Court was not a ground for refusing approval. Referring to the judgment of Thirumuruga Kirupananda (supra), the Supreme Court observed that the State would not have any "policy" outside the AICTE Act and indeed if it had a policy, it should have been placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and Regulations had been followed, there was no scope for any further objection or approval by the State.

In case on hand, the impugned communication dated 14.3.2011 sent by the State to the AICTE appears to be a policy decision which the Government has taken on account of various seats remaining unfilled in 2 Academic Session i.e. 2009-2010 and 2010-2011. It was a communication sent at the stage of consideration for grant of recognition to the petitioners. The powers relating to grant of recognition, after coming into force of the All India Council for Technical Education Act, 1987 exclusively vests with the AICTE and the State, as an effect of Entry 66 & 25 of List-I and List-III would not be in a position either to make law on the subject covered by the AICTE Act, 1987 or even to take policy decision relating to the matters already covered their under.

In State of Tamil Nadu and Another Vs. S.V. Bratheep (Minor) and Others, the Supreme Court observed that Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission, but, if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of power under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Whether the policy of the State relating to not opening Engineering Colleges and not granting permission to the colleges for further shifts or to increase their intake on the ground of seats in the Colleges lying vacant in previous years was good ground for the AICTE to refuse recognition ? We are of the view that the above ground taken by the State for opposing recognition for opening the new colleges or for new courses, in view of the provisions of AICTE Act, 1987 and further in view of the above constitutional mandates was not correct.

The impugned letter would show that it was a general decision taken by the State and communicated to the AICTE with a request to treat the same as the view of the State Government as per Clause 4.14 of AICTE Regulations 2011. The views of the Government or the policy decision of the Government was not binding on AICTE. If after consideration of the views of the State the AICTE has taken the decision to grant recognition to the petitioners, it cannot be said that the action taken by the AICTE was not in accordance with law. Moreover, this is not a petition challenging the decision of the AICTE. Learned counsel for the respondents have referred to various provisions relating to procedure for grant of recognition and have argued that the AICTE has acted in haste-hurry manner and it has not followed proper procedure for grant of recognition. Since these writ petitions are not related to the above subject matter and challenge has not been made by any aggrieved party to the recognition granted by AICTE, we do not feel it appropriate to go into that aspect of matter and to record a finding in relation to the grant of recognition on account of alleged procedural flaws in the same. If an institution wants to run some more courses or it wants to increase its annual intake, it runs the risk of remaining its seats vacant, The loss and gain on account of the activity of the institution is the risk of that institution and the Government cannot make a policy to oppose the recognition only on account of seats lying vacant in previous academic years. In policy framed by the Government in a welfare State should be well founded and should be made in public interest keeping in mind the jurisdiction of the concerned Government to legislate on the subject or even to make a policy on the subject. If the policy of the concerned Government is not reasonable and is not founded on sound principles or the grounds keeping in mind the public interest, the same cannot be allowed to exists. The major portion of the policy decision is in form of the view of the Government against recognition which was to be granted by the AICTE, has merged in the final decision of the AICTE, and in that manner it does not remain in existence. But the last 2 lines of the policy in which the Government has expressed in clear words that "No separate NOC as required by the AICTE will be issued by the State Government to any applicant of the private Colleges in this regard" remains in force and the same being without jurisdiction has to be set-aside.

There is yet an other reason to set-aside the above decision of the Government, as the Government by the said decision has expressed its views that it will not grant NOC as required by the AICTE at the stage when the matter relating to grant of NOC was not pending before it. Taking a decision in advance even prior to the matter coming up for consideration is totally erroneous and arbitrarily. This shows the predetermination of the Government in the matter for grant of NOC as required by the AICTE after grant of approval and such pre-decision, in light of the above facts and circumstances, is arbitrary and illegal. We are of the view that the above decision of the Government, relating to grant of future NOC at the pre-judging stage, deserves to be quashed.

Now we shall consider the second argument.

It was contended by learned counsel for the petitioners that once the recognition was granted, the State and the University cannot deny permission and affiliation and that has to be granted essentially. The above argument advanced by learned counsel for the petitioners is totally misconceived. In Rukmani College of Education run by Rukmani Educational and Charitable Trust Vs. The State of Tamil Nadu, . the full Bench of Madras High Court in the matter of National Council for Teacher Education Act, 1993 (NCTE - Act) has held that it cannot be said that merely because the recognition to the institution has been granted by the NCTE, affiliation must necessarily be granted by the University, else, it would only mean that the University has to grant affiliation even if the particular institution does not conform to the Standards or does not meet the requirements of the Act, statutes, Ordinance and Regulations of the University and may have the effect of destroying the very autonomy of the University. Merely because the NCTE Act is a Central Statute it does not mean that it has to be interpreted in a manner which destroys the very fabric and edifice of the University. Therefore, there is a need to interpret the provisions of the Central Act and the State Act, harmoniously so that both are able to survive in the respective fields and also able to achieve their respective objectives. No doubt, Section 14(6) of NCTE Act says that the University, on receipt of the order under sub-section (4) of Section 14 of the NCTE Act, shall grant affiliation to the institution where recognition has been granted. However, this does not mean that as soon as the order or recognition from the NCTE is produced before the University, it is bound to close its eyes and straightway grant affiliation. It would only mean that affiliation should not be refused on the ground which are covered by Section 14(3) of the NCTE Act, as the Council has already satisfied itself that the institute meets these requirements. However, this would not be an absolute rule and the University can make a limited enquiry as to whether the institution has proper facilities, competent teaching staff, etc. in consonance with Section 14(3) of the NCTE Act. If it is found that the college does not have the adequate facilities, qualified teaching staff, adequate financial resources, etc. or permission has been obtained by deception or fraudulent means, it would be open for the University to refer the matter to the NCTE for appropriate action. After all it is the University which confers the degree. It is the credibility, reputation or goodwill of the University which is at stake. Therefore, no institution can claim affiliation as a matter of right. It was further held that grant of affiliation alone entitles the colleges to admit the students and also enable the students to write the examination, subject to the training in the prescribed syllabi and fulfilling the attendance norms, and there cannot be any retrospective affiliation and the attendance before the affiliation would not be taken into consideration.

In Chairman, Bhartia Education Society and Another Vs. State of Himachal Pradesh and Others, , the Supreme Court, talking in terms of Section 14(6) of NCTE Act, 1993, observed that the purpose of "recognition" and "affiliation" is different. In the context of the NCTE Act. "affiliation'''' enables and permits an institution to send its students to participate in the public examinations conducted by the examining body and secure the qualification in the nature of degrees, diplomas, certificates. On the other hand, "recognition" is the license to the institution to offer a course or training in teacher education. Prior to the NCTE Act, in the absence of an apex body to plan and coordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of "recognition" were largely exercised by the State Government and universities/boards. After the enactment of the NCTE Act, the function of NCTE as "recognizing authority" and the examining bodies as "affiliating authorities" became crystallized, though their function overlap on several issues. The NCTE Act recognizes the role of examining bodies in their sphere of activity. The examining body can impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The State Government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of NCTE. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course of training in teacher education or admit students to such course or training. Section 14(6) cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition.

In the present matters, as required under the law, AICTE while granting recognition, as mentioned in the order of recognition, has specifically stated that the society/trust/institution shall obtain necessary affiliation/permission from the concerned affiliating University as per the prescribed schedule of the University/admission authority etc. Chhattisgarh Swami Vivekanand Technical University Act, 2004 vide Section 26 deals with the powers and duties of the Council. Clause (five) of subsection (1) of Section 26 provides that the Academic Council shall in addition to all other powers vested in it by this Act, the Statute and the Ordinance shall also consider the application for admission of an educational institution to the privileges of the University; provided that no such application shall be considered unless the institution has been approved by the All India Council for technical Education and the State Government. An affiliated college or Polytechnic means an institution admitted to the privileges of the University in accordance with the provisions of this Act and the Statute. Stature 18, with reference to Section 26 (five) of the Act, 2004, deals with the affiliation of the colleges. Clause (1) of the Statute deals with the filing of the application for affiliation and further Clauses deal with the processing of such application. Clause (five) Statute 18, with reference to Section 26 (five) of the Act, 2004, deals with the affiliation of the colleges. Clause (1) of the Statute deals with the filing of the application for affiliation and further Clauses deal with the processing of such application. Clause (five) Statute 18 provides that the authorized officer or the Secretary of the Foundation Society, or the Chairman of the governing Body as the case may be, shall supply information in the prescribed application, with regard to the various matters contained in sub-clause (a) to (1) of Clause (5). This shows that various aspects are to be considered by the University before granting the affiliation either to the new college or for the new programme/subject/faculty/post-graduate classes. This makes clear that the grant of affiliation as also permission by the State Government operate in a different field than that of grant of recognition by the AICTE. It is for this reason, the AICTE always grants recognition on the condition of grant of approval and valid affiliation by concerned authorities and these are independent acts. As stated above, the Supreme Court in Bhartia Education Society (supra) held that Section 14(6) of the NCTE Act cannot be interpreted in the manner so as to make process of affiliation, an automatic rubber stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. The Full Bench of Madras High Court in Rukmani College (supra) has also taken the same view and has further added that no institution or college is entitled to admit students before the grant of affiliation by the University. In light of the above provisions of the Act, 2004 and further in light of the Statute framed under the Act particularly Statute 18, it is clear that unless the approval and affiliation is granted, no college would be entitled to admit students and as such they would also not be permitted to participate in counseling prior to grant of approval/affiliation and the argument of learned counsel for the petitioners cannot be sustained that the affiliation and approval are to be essentially granted to the petitioners after grant of recognition by the AICTE.

In case on hand, the petitioners have prayed for necessary directions to the State authorities to allow them to participate in counseling process for admission of students in the Academic Session 2011-2012. Admittedly till today none of the petitioners have been affiliated with the University either for opening new colleges or for adding new programme/subject/faculty/or for the new intake. The approval by the Government has been refused in only one case i.e. in W.P. (C) No. 4357/2011 which relates to opening of a new Engineering College. In other cases, as per clear pleadings made in Para-6 of the return filed by the University none of the petitioners have even applied to the University for affiliation and it appears that no approval has also been granted by the Government in all the matters. We are of the firm view that without the grant of approval and affiliation to the petitioners, the petitioners cannot be permitted to participate in counseling for admission of the students in their institutions,

So far as intervention applications are concerned, learned counsel for the interveners has argued that the recognition was not proper. He has also argued that the increase in the annual intake and permitting the petitioners to open new faculties and new shift will adversely affect the proposed interveners who are running small private Engineering Colleges. The above arguments and the grounds taken for intervention in their applications cannot be entertained in these writ petitions. As we have already held that the subject matter of the writ petitions is not the challenge to the recognition granted to the petitioners and the applications filed by the interveners, in view of the above, have to be rejected.

Accordingly we dispose of the writ petitions in following terms:-

(i) The decision of the Government as contained in communication dated 14.3.2011 (Annexure-P/1 in W.P. (C) No. 4357/2011) that "no separate NOC as required by AICTE will be issued by the State Government to any application of the private colleges" is hereby quashed. Consequently, further communication dated 19.7.2011 (filed as part of Annexure-P/1 in W.P. (C) No. 4357/2011) is also quashed.

(ii) The petitioners are free to file applications for approval/affiliation to the concerned authorities, if so advised, in accordance with law. If such applications are filed, the concerned authorities shall decide the same on their own merits in accordance with law and also in accordance with the observation contained in various paragraphs of this judgment.

(iii) No petitioner shall be entitled to participate in counseling or to admit the students before grant of approval/affiliation by the Government/University.

(iv) The intervention applications i.e. I.A. No. 2/2011, I.A. No. 3/2011 & I.A. No. 2/2011 filed in W.P. (C) No. 3918/2011,3727/2011 & 3991/2011 all stand dismissed.

No orders as to cost(s).