Supreme Court of India
G H APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY & ANR.versusJAI BHARATH COLLEGE OF MANAGEMENT AND ENGINEERING TECHNOLOGY & ORS.
- Citation
- 2020 INSC 695
- Decided
- 10 December 2020
- Disposal
- Appeal(s) allowed
- Bench
- S A BOBDE
Holding
The Syndicate’s authority to lay down affiliation norms under Section 30(2) is valid even without statutes, and the university may impose enhanced standards beyond AICTE regulations, rendering the High Court’s decision ultra vires.
Summary
The Supreme Court examined whether the Syndicate of APJ Abdul Kalam Technological University could prescribe norms for granting affiliation to additional courses under Section 30(2) of the University Act, even though the university statutes were not yet in force. The Court held that the power to lay down such norms flows from the Act itself and is not dependent on the existence of statutes, and that Section 14(6) does not strip the Syndicate of its authority. It further ruled that a university may impose enhanced standards beyond those prescribed by AICTE, provided it does not dilute AICTE norms. The High Court’s view that the Syndicate’s resolutions were ultra vires and that only the Vice‑Chancellor could act in the absence of statutes was rejected. Consequently, the appeal was allowed, the High Court judgment set aside, and the Syndicate’s resolutions of February and June 2020 upheld.
Issues considered
- The extent of the Syndicate’s power under Section 30(2) of the APJ Abdul Kalam Technological University Act to prescribe affiliation norms in the absence of university statutes.
- Whether Section 14(6) confers exclusive authority on the Vice‑Chancellor to regulate matters when statutes are missing, thereby limiting the Syndicate’s role.
- Whether the university may prescribe additional or higher norms for affiliation beyond AICTE regulations.
- The validity of the High Court’s finding that the Syndicate’s resolutions were ultra vires the Act.
Legislation cited
- All India Council for Technical Education Act, 1987s. 10(1), s. 23(1), s. 23(2)
- APJ Abdul Kalam Technological University Act, 2015s. 14(6), s. 22, s. 30(1), s. 30(2), s. 42, s. 43(1), s. 63(1), s. 63(2), s. 8
Subjects
technical educationuniversity affiliationstatutory interpretationsyndicate powersAICTE regulationsenhanced normshigher education law
Judgment
732 [2020]REPORTS
SUPREME COURT 13 S.C.R. 732 [2020] 13 S.C.R.
A APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY &
ANR.
v.
JAI BHARATH COLLEGE OF MANAGEMENT AND
ENGINEERING TECHNOLOGY & ORS.
B
(Civil Appeal No. 4016 of 2020)
DECEMBER 10, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND V.
RAMASUBRAMANIAN, JJ.]
C
APJ Abdul Kalam Technological University Act, 2015:
Purpose of enactment – Held: To regulate technical education in
the State of Kerala.
APJ Abdul Kalam Technological University Act, 2015: s.30(2)
– Power of Syndicate to lay down norms for grant of affiliation for
D
additional courses – Held: The source of power for the Syndicate
to prescribe norms and standards for affiliation is s.30(2) – s.30(2)
begins with the words “subject to the provisions of the Act and 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
E 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 – Therefore, the absence of
Statutes, till they were made for the first time on 07.08.2020, did not
mean that the power under s.30(2) could not be exercised – The
absence of the Statutes (till 07.08.2020) would only mean the
F
absence of Statute-stipulated conditions and procedure for
affiliation, but not the absence of the very power of the Syndicate
flowing out of s.30(2)(iii) – Thus, 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
G of the Syndicate to lay down norms and standards by virtue of the
powers conferred by s.30(2), is made free of any fetters – High
Court was in error in holding that the resolutions passed by the
Syndicate prescribing norms and standards for the grant of
affiliation for additional courses were ultra vires the Act –
Universities – Education/Educational Institutions.APJ Abdul Kalam
H
732
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE 733
OF MGMT. & ENGG. TECH.
Technological University Act, 2015: s.14(6) – Whether High Court A
was correct in holding that in the absence of the Statutes, recourse
was available only to the Vice Chancellor under s.14(6) – Held:
s.14(6) says that in the absence of the Statute, it is the Vice-
Chancellor who has the power to regulate any matter which is
required to be regulated by Statutes or Regulations – It cannot be
B
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 s.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 C
virtue of s.30(2)(iii), the Syndicate can be taken to be the “other
authority” referred to in s.14(6) – Therefore, it was not necessary
for the Vice Chancellor to fall back upon s.14(6) on the ground
that there were no Statutes at that time – High Court erred in holding
that in the absence of the Statutes, recourse was available only to
D
the Vice Chancellor under s.14(6), overlooking for a moment that
the power under s.30(2)(iii) would not become otiose due to the
absence of the Statutes.
APJ Abdul Kalam Technological University Act, 2015: Role
of appellant-University vis-a-vis AICTE – Enhancement of norms
and standards for admission as prescribed by AICTE – Held: While E
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 – Universities.
Universities: Power of Universities to incorporate any
additional conditions for affiliation – Case laws discussed. F
AICTE – Development in AICTE after 2012 – 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 self-disclosure made by the colleges in their online
applications – Though AICTE has reserved to itself the power to G
conduct inspections and take penal action against colleges for false
declarations, such penal action 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, H
734 SUPREME COURT REPORTS [2020] 13 S.C.R.
A when penal action is taken against colleges which host false
information online in their applications.
Allowing the appeal, the Court
HELD: 1.1 Section 63(2) deals with the grant of affiliation
or recognition for additional courses to an affiliated college or
B recognized institution. This provision does not deal with the laying
down of norms and standards. 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. The source of power for the Syndicate to prescribe
C 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
D it cannot be said that the power itself is unavailable. 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 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
E been exercised. [Paras 28, 34][749-E-F; 751-G-H; 752-C-E]
1.2 Section 42 of the Act which speaks about the issue 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
F colleges”, is one of the matters that could be provided for in the
Statutes. Therefore, 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 Statute-stipulated
conditions and procedure for affiliation, but not the absence of
the very power of the Syndicate flowing out of Section 30(2)(iii).
G Therefore, it was not necessary for the Vice Chancellor to fall
back upon Section 14(6) on the ground that there were no Statutes
at that time. [Para 35][752-F-H]
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE 735
OF MGMT. & ENGG. TECH.
1.3 Section 14(6) says that in the absence of a Statute, it is A
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
B
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 that is done, it can be seen that it C
was the Syndicate, chaired by the Vice Chancellor which took the
impugned decisions in its meetings and hence the prescription
of norms by the Syndicate, chaired by the Vice Chancellor cannot
be said to be ultra vires the Act. [Para 36][753-A-D]
1.4 When the Statutes have not prescribed any conditions D
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. 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 E
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 F
50% of the sanctioned intake in the preceding three years on an
average. 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. [Paras 38, 39, 40][754-B-C; C-D-; E-F]
G
2. 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. [Para 47][756-G-H]
H
736 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 3.1 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 self-disclosure made by
the 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
B
extension of approval. Chapter II of the Approval Process
Handbook for 2020-21 makes it clear that the extension of
approval will be based on self-disclosure. Paragraph 13 of the
counter affidavit of the AICTE contains an extract of Clause
2.15.4(b) of APH 2020-21, which confirms that the assessment is
C based on self-disclosure on AICTE web portal. [Paras 56, 57]
[760-D-E; G-H]
3.2 Though AICTE has reserved to itself the power to
conduct inspections and take penal action against colleges for
false declarations, such penal action does not mean anything and
D 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
E 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.
F [Para 58][761-A-C]
Modern Dental College & Research Centre and Others
v. State of Madhya Pradesh and Others. (2016) 7 SCC
353:[2016] 3 SCR 579 – followed
Bharathidasan University and Another v. All India
G Council for Technical Education and Others (2001) 8
SCC 676:[2001] 3 Suppl. SCR 253; Association of
Management of Private Colleges v. All India Council
for Technical Education and Others (2013) 8 SCC
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE 737
OF MGMT. & ENGG. TECH.
271:[2013] 6 SCR 1054; State of T.N. and Another v. A
S.V. Bratheep (Minor) and Others (2004) 4 SCC 513:
[2004] 2 SCR 1218; Visveswaraiah Technological
University and Another v. Krishnendu Halder and
Others (2011) 4 SCC 606: [2011] 2 SCR 1007;
Mahatma Gandhi University and Another v. Jikku Paul
B
and Others. (2011) 15 SCC 242 – relied on
Jaya Gokul Educational Trust v. Commissioner &
Secretary to Government Higher Education Department,
Thiruvanathapuram, Kerala State and Another (2000)
5 SCC 231: [2000] 2 SCR 1234; Mata Gujri Memorial
Medical College v. State of Bihar and Others (2009) 16 C
SCC 309 – distinguished.
Rungta Engineering College, Bhilai and Another v.
Chattisgarh Swami Vivekanand Technical University
and Another (2015) 11 SCC 291 : [2014] 12 SCR 796
– Not correct law D
R. Chitralekha v. State of Mysore and Others AIR 1964
SC 1823: 1964 SCR 368; State of A.P. v. K.
Purushotham Reddy and others (2003) 9 SCC 564:
[2003] 2 SCR 832; Osmania University Teachers’
Association v. State of Andhra Pradesh and Another E
(1987) 4 SCC 671: [1987] 3 SCR 949; Bharati
Vidyapeeth (deemed university) and Others v. State of
Maharashtra and Another (2004) 11 SCC 755: [2004]
2 SCR 775; State of T.N. and Another v. Adhiyaman
Educational and Research Institute and Others (1995) F
4 SCC 104: [1995] 2 SCR 1075 – referred to
Case Law Reference
1964 SCR 368 referred to Para 45
[2003] 2 SCR 832 referred to Para 46
G
[1987] 3 SCR 949 referred to Para 46
[2001] 3 Suppl. SCR 253 relied on Para 47
[2013] 6 SCR 1054 relied on Para 47
H
738 SUPREME COURT REPORTS [2020] 13 S.C.R.
A [2004] 2 SCR 1218 relied on Para 48
[2011] 2 SCR 1007 relied on Para 48
(2011) 15 SCC 242 relied on Para 49
[2016] 3 SCR 579 followed Para 49
B [2004] 2 SCR 775 referred to Para 49
[2000] 2 SCR 1234 distinguished Para 50
(2009) 16 SCC 309 distinguished Para 50
[2014] 12 SCR 796 not correct law Para 50
C
[1995] 2 SCR 1075 referred to Para 53
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4016
of 2020
From the Judgment and Order dated 08.09.2020 of the High Court
D of Kerala at Ernakulam in WA No. 1073 of 2020.
Chander Uday Singh, P.S. Narasimha, C. Arayama Sundaram,
Gopal Sankaranarayanan, Sr. Advs., P.V. Dinesh, Mukund P. Unny, T.P.
Sindhu, Bineesh K., Ashwini Singh, S.Krishnamoorthy, K.V. Mohan, Anil
Soni, Harish Pandey, Ms. Priyanka Prakash, Ms. Beena Prakash, G.
E Prakash, Harish Shankar Vaidyanathan, Ravi Panwar and Kaushik Laik,
Advs., for appearing parties.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
F 1. Leave granted.
2. Aggrieved by the order passed by the Division Bench of the
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
G 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 appellant-University, Mr. S. Krishnamoorthy, learned
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 739
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
Counsel appearing for the first respondent-College, Ms. Priyanka A
Prakash, learned Counsel appearing for the second respondent-State
and Mr. Anil Soni, learned Counsel appearing for the third respondent-
AICTE. 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
B
vacation of stay.
4. It appears that despite the mushroom growth of the self-
financing Engineering Institutions in the neighbouring States, the 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
C
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
D
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:- E
“xxxx
(b) to improve the academic standards of the graduate,
postgraduate and research programmes in engineering sciences,
technology and management. F
(c) to ensure the academic standards of all colleges and institutions
affiliated to the University.
xxxxx
(k) to substantially increase enrolment in Postgraduate education G
and research programmes in the colleges and 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;
H
740 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (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.”
B 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,
C 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
D 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.
E xxxxxxxx
(vii) to hold examinations and to confer degrees, postgraduate
degrees, diplomas, certificates and other academic distinctions to
persons who, -
(a) shall have pursued a prescribed course of study in the
F 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;
G
xxxxxxxx
(xiv) to provide for the inspection of affiliated colleges and to
issue such directions as the University may deem fit;
xxxxxxxx
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 741
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
(xviii) to recommend to the Government to take over, in the public A
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, B
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 C
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 self-
financing 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, D
provided they meet the criteria prescribed under this Act,
Ordinances and 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
E
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 F
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 G
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 H
742 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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:-
B (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;
C (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 time to time, by the
D 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
E 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;
F
(vi) that the strength and qualifications of teaching and non-
teaching 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
G of study, teaching or training or research, efficiently;
(vii) that the services of all teaching and non-teaching 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;
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APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 743
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
(viii) that the directions and orders issued by the Chancellor, A
Vice-Chancellor 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;
B
(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; C
(xi) that in the event of disaffiliation or de-recognition or closure
of the college or institution, all the assets of the college or
institution including building and equipment which have been
constructed or created out of the amount paid as a grant-in-aid
by the Government or the University Grants Commission shall
D
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:
E
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 F
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 G
Statutes.
(3) An affiliated college with at least six years standing as an
affiliated college may apply for permanent affiliation in the manner
H
744 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 self-financing Institution which was
earlier offering B.Tech courses in five disciplines with an annual permitted
intake of 60 students in each of the disciplines. After closing the course
B in one particular discipline, the first respondent applied in February/March-
2020 seeking approval of the AICTE for starting a new course in
“Artificial Intelligence and Data Science” with a permitted annual
intake of 60 students, from the Academic Year 2020-21. The application
was in accordance with the AICTE Approval Process Handbook 2020-
21, issued in terms of the AICTE (Grant of Approvals for Technical
C 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.
D 12. Simultaneously with the submission of the application to the
AICTE, the first respondent also submitted an application for affiliation
to the appellant-University, 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
E 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 self-financing
engineering colleges. As against the permitted intake of 58,165 students
for the academic year 2015-16, only 37,007 students got admitted leaving
19,468 seats vacant. The number of vacant seats rose to 20,038 in the
F academic year 2016-17 and to 22,819 in the academic year 2017-18.
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
G 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.
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 745
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15. Following the said Government order, the Syndicate of the A
appellant-University 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 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
B
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 sub-committee was constituted for the purpose
of recommending affiliation for new courses or programmes for the C
affiliated colleges who have submitted applications for starting new
programmes. This sub-committee 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 sub-committee examined all the 50 proposals received till D
19-03-2020 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 E
Annexure 1. Accordingly, the sub-committee recommends that
the proposals from these 21 institutions for starting new programs/
additional intake be favourably considered by the Syndicate for
issuing NOC for granting affiliation.
2. The sub-committee recommends that the applications for BVoC F
courses be considered by the Syndicate for appropriate policy
decisions.
3. The sub-committee 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. G
4. The sub-committee 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.
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746 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 5. The sub-committee 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
B 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 respondent-
College 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
C Government Order dated 22.06.2019; (ii) to direct the University to grant
affiliation for the newly proposed course for the academic year 2020-
21; (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
D 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 sub-committee.
18. By sheer coincidence, the 13th meeting of the Syndicate of
the appellant-University was held on 24.06.2020, the day following the
E
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
F Education. The rest were academicians. In this meeting, the Syndicate
examined the list of colleges which had applied for new 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,
G 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
H sanctioned intake.
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 747
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19. Though the first respondent filed the writ petition on 23.06.2020 A
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
B
(of the University) impugned in the writ petition stood 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 C
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 D
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 E
24.06.2020, NOC from the State Government 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 F
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 G
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
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748 SUPREME COURT REPORTS [2020] 13 S.C.R.
A Court. The other Colleges who were writ petitioners, also filed separate
writ appeals.
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
B 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.
C
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 appellant-University has filed similar
appeals against the very same impugned Judgment and those appeals
are yet to be numbered.
D
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 affiliation;
and (ii) the very power of the University to go beyond the AICTE
Regulations.
E 25. On the first issue revolving around the power of the Syndicate,
the High Court held that under Section 63(2) of the State University Act,
an application for affiliation or recognition for additional courses of study
made by a College which already holds affiliation, should be considered
by the University following the procedure prescribed in the Statutes.
F 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,
G 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 the matter back to the Vice Chancellor to follow the
course of action available under Section 14(6).
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 749
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26. It is relevant to note at this stage that the power of the Syndicate A
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 B
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 appellant-University relied upon the Statutes issued
on 07.08.2020 and the power of ratification. Statute No.93 was brought C
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 placed upon Statute No.93 on the ground that the
power under Statute No.93 may relate only to the grant of affiliation of D
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
E
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 F
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 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 G
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.
H
750 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
Sub-sections (5), (6) and (14) of Section 14. They read as follows:
“14. Powers of the Vice-Chancellor
xxxx
B
(5) If there are reasonable grounds for the Vice-Chancellor 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
C which, in the ordinary course, would have dealt with the matter.
In the event of a difference arising between the Vice-Chancellor
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
D the Chancellor whose decision shall be final.
(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 Vice-Chancellor shall for the time being, regulate the
matter by issuing such directions as the Vice-Chancellor thinks
E 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 Vice-Chancellor shall exercise such other powers and
F perform such other duties as may be conferred upon the Vice-
Chancellor by or under this Act and Statutes.”
30. On a reading of Section 14(6), the High court came to 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
G so, he has to take the approval of the Board of Governors. But the High
Court overlooked several facts. First is that Sub-section (5) of Section
14 confers emergency powers on the Vice Chancellor and Sub-section
(14) recognises the residuary powers of the Vice Chancellor. Second is
that even sub-section (6) uses the words “Board of Governors or other
authority or body concerned for approval”. Therefore, it is not
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 751
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
necessary that the Vice-Chancellor, after issuing directions, should take A
the approval of the Board of Governors alone. He was entitled to take
the approval of “the other authority or body concerned”.
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 B
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 C
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 D
and Regulations. It is the very same Section 8 which confers power
upon the University to make Statutes, Ordinances and Regulations, under
clause (xxvi).
33. Section 22 speaks of different authorities of the University.
Under Section 22, as it was originally drafted, the University shall have E
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, F
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’. G
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. Sub-section (2) of Section
30 lists out the powers available to the Syndicate, subject to the provisions
H
752 SUPREME COURT REPORTS [2020] 13 S.C.R.
A of the Act and the Statutes. The power under Clause (iii) of Sub-section
(2) of Section 30 is of relevance and it reads as follows:-
“(2) Subject to the provisions of this Act and the Statutes, the
Syndicate shall have the following powers, namely:-
(i) ………
B
(ii) ………
(iii) to propose norms and standards for affiliating colleges
as regular colleges or autonomous colleges or constituent colleges
of the University.”
C 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
D 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 Statutes,
till they were made for the first time on 07.08.2020, did not mean that
E 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
F
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
G conditions and procedure for affiliation. The absence of the Statutes (till
07.08.2020) would only mean the absence of Statute-stipulated 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 back upon Section 14(6) on the
ground that there were no Statutes at that time.
H
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 753
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36. Even assuming for a moment that the absence of the Statutes A
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 B
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 C
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 prescription of norms by the Syndicate, chaired
by the Vice Chancellor cannot be said to be ultra vires the Act.
D
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 E
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:
F
“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 G
b)xxxxx
c)xxxxx
d)xxxxx
e)xxxxx H
754 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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
D 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% and the Colleges
could not even have an average intake of more than 50% of the
sanctioned intake in the preceding three years.
E
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
F
of the appellant-University vis-a-vis 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
G
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.
H On the basis of the recommendations made by the National Working
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 755
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
Group, the AICTE Act, 1987 was enacted. Section 23(1) of the AICTE A
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
B
maintenance of standards. Clause (i) of sub-section (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 C
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.
43. It will be of interest to note that Sub-section (2) of Section 23, D
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 Sub-section (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 E
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 Sub-section (1), for carrying out the purposes of the Act. This is
why all Regulations are issued by AICTE in exercise of the powers F
conferred by Section 23(1) read with the relevant clauses of Sub-section
(1) of Section 10.
44. The AICTE Act is to be traced to Entry 66 of List-I of the
Seventh Schedule to the Constitution. The A.P.J. Abdul Kalam
Technological University Act issued by the Kerala State Legislature can G
be traced to Entry 25 of List-III.
45. In R. Chitralekha vs. State of Mysore and Others1, the
Constitution Bench of this Court pointed out that the question regarding
1
AIR 1964 SC 1823 H
756 SUPREME COURT REPORTS [2020] 13 S.C.R.
A the impact of Entry 66 of List-I on Entry-25 of List-III 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 List-I, 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
B
also pointed out that if a State law prescribes higher percentage of marks
for extra-curricular 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 List-I.
46. The decision of the Supreme Court in R. Chitralekha (supra)
C 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 circumstances. The State of
Andhra Pradesh enacted in the year 1986, an Act known as Andhra
Pradesh Commissionerate of Higher Education Act, 1986. The
D 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
E 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
F of the decision in Osmania University Teachers’ Association (supra),
and hence, the matter was referred to a three-member Bench. The
three-member Bench rejected the 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.
G
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
2
(2003) 9 SCC 564
3
H (1987) 4 SCC 671
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 757
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
regards the role of the Universities vis-à-vis the AICTE, this Court held A
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
B
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- 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. C
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 D
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 E
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 F
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 G
not mean that in that year, the eligibility criteria fixed by the State/
4
(2001) 8 SCC 676
5
(2013) 8 SCC 271
6
(2004) 4 SCC 513
7
(2011) 4 SCC 606 H
758 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 eligibility criteria is not to ensure that all seats in
B
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
C 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
D 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
E (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 Others 9. In Modern Dental College
(supra), issue No. IV framed for consideration by the Constitution Bench
(as reflected in the opinion of the majority) was as to “whether the
legislation in question was beyond the legislative competence of the
F 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
G Maharashtra and Another11 as though the entire gamut of admissions
was covered by Entry 66 of List-I, has to be overruled. In the concurring
8
(2011) 15 SCC 242
9
(2016) 7 SCC 353
10
(1999) 7 SCC 120
11
H (2004) 11 SCC 755
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 759
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
and supplementing opinion rendered by R. Banumathi, J., in Modern A
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, B
Kerala State and Another 12, (ii) Mata Gujri Memorial Medical
College vs. State of Bihar and Others13 and (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 C
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 D
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.
52. Thereafter, in Bharathidasan University (supra), the Supreme E
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 vis-à-vis the Universities is only advisory,
recommendatory and a guiding factor. Therefore, on the issue on hand,
F
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. G
12
(2000) 5 SCC 231
13
(2009) 16 SCC 309
14
(2015) 11 SCC 291
H
760 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 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
B
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.
C
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
D 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 self-disclosure made by the colleges in their online
applications. If all infrastructural facilities as prescribed by AICTE are
E 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
F 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
G Handbook for 2020-21 makes it clear that the extension of approval will
be based on self-disclosure. Paragraph 13 of the counter affidavit of the
AICTE contains an extract of Clause 2.15.4(b) of APH 2020-21, which
confirms that the assessment is based on self-disclosure on AICTE web
portal.
15
H (1995) 4 SCC 104
APJ ABDUL KALAM TECH. UNIVERSITY v. JAI BHARATH COLLEGE OF 761
MGMT. & ENGG. TECH. [V. RAMASUBRAMANIAN, J.]
58. Though AICTE has reserved to itself the power to conduct A
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 B
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 C
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) Research
and Professional Practice; (iii) Graduation Outcomes; (iv) Outreach D
and Inclusivity; and (v) Peer Perception. No State run university can
afford to have a laid-back 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.
E
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. F
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 respondent-College are also upheld. The applications G
for impleadment/intervention are dismissed and the other pending
applications, if any, shall stand disposed of. There will be no order as to
costs.
Devika Gujral Appeal allowed
H
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