* THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE MR JUSTICE C.V.BHASKAR REDDY
+ WRIT PETITION Nos.36237, 36239, 36318, 36353, 36380,
36383, 36404, 36427, 36442, 36449, 36451, 36462, 36473,
36487, 36491, 36496, 36534, 36572, 36626, 38085, 38091,
39092 and 39307 OF 2022
% Date: 16-12-2022
W.P.No.36237 of 2022
# Cherabuddi Educational Society,
rep. by its Chairman Mr.Raghav and others
... Petitioners
v.
$ Jawaharlal Nehru Technological University, Hyderabad,
Rep by its Registrar, and others.
... Respondents
! Counsel for the Petitioners : Mr. S.Niranjan Reddy, learned Senior Counsel representing Mr. Tarun G.Reddy, learned counsel for the petitioners ^ Counsel for respondent No.1 : Mr. B.Mayur Reddy Counsel for respondent Nos.2&3 : Ms.R.N.Padmaja, GP for Higher Education Counsel for respondent No.4 : Mr. Muddu Vijay Counsel for respondent Nos.5 &6 : Ms. C.Vani Reddy < GIST:
HEAD NOTE:
? CASES REFERRED:
1. (2000) 5 SCC 231
2. 2021 SCC OnLine SC 1105
3. 2018 SCC OnLine Hyd 473
4. (2021) 2 SCC 564
5. (2019) 17 SCC 729
6. (1985) 3 SCC 1
2
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE MR JUSTICE C.V.BHASKAR REDDY WRIT PETITION Nos.36237, 36239, 36318, 36353, 36380, 36383, 36404, 36427, 36442, 36449, 36451, 36462, 36473, 36487, 36491, 36496, 36534, 36572, 36626, 38085, 38091, 39092 and 39307 OF 2022 COMMON ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan) This order will dispose of the above batch of writ petitions.
2. Heard Mr. S.Niranjan Reddy, learned Senior Counsel representing Tarun G.Reddy, learned counsel for the petitioners; Mr. B.Mayur Reddy, learned counsel for respondent No.1, Jawaharlal Nehru Technological University; Ms. R.N.Padmaja, learned Government Pleader for Higher Education, State of Telangana representing respondent Nos.2 and 3; Ms. C.Vani Reddy, learned counsel for respondent Nos.5 and 6.
3. All the writ petitions comprising this batch are directed against the State of Telangana in not permitting the petitioners to open B.Tech courses in new emerging subjects such as artificial intelligence, block chain 3 technology, robotics, data sciences, cyber security etc., on the ground that intake of more students in the new courses may have an adverse impact on government finances; additionally petitioners have also questioned the vires of Regulation Nos.3.4, 5.5, 5.6 and 6.1 of the Jawaharlal Nehru Technological University Affiliation Procedure and Regulations (with effect from 2020-21).
4. In the hearing, writ petition No.36237 of 2022 was argued as the lead case, which position is also maintained in the present judgment.
5. Cherabuddi Educational Society and two others have filed the related writ petition i.e., W.P.No.36237 of 2022 praying for the following reliefs:
a) Declaring the Regulations No.3.4, 5.5, 5.6 and 6.1 of the JNTU Affiliation Procedure and Regulations (With effect from 2020-21), to the extent of the requirement of permission from the State Government for offering new courses or increase in intake, as being arbitrary, ultra vires, illegal and unconstitutional, apart from being in violation of the law laid down by the Hon'ble Supreme Court and set aside the same;4
b) Declare the action of respondents No.1, 2 and 3 in not permitting the Petitioner Institution from running its courses of B.Tech CSE (Data Sciences), B.Tech CSE (Cyber Security), B.Tech CSE (AIML) and B.Tech Information Technology with the additional increased intake as approved by the AICTE and mandating a requirement of permission from the State Government for the same as being arbitrary, illegal and unconstitutional and set aside the same;
c) Consequently, direct the respondents herein to treat the Petitioner Institution as a validly affiliated and approved Institution for the Academic Year 2022-23, for all the Courses of the 2nd Petitioner Institution including the additional increased intake in the courses of B.Tech CSE (Data Sciences) - 60 seats, B.Tech CSE (Cyber Security) - 60 seats, B.Tech CSE (AIML) - 60 seats and B.Tech Information Technology - 60 seats as sanctioned and approved by the AICTE for the Academic Year 2022-23 and;
d) pass any other order or orders as this Court may deem fit and proper in the circumstances of the case.
6. From the above, it is seen that petitioners have questioned the vires of Regulation Nos.3.4, 5.5, 5.6 and 5 6.1 of the Jawaharlal Nehru Technological University Affiliation Procedure and Regulations (with effect from 2020-2021) (briefly, 'the Regulations' hereinafter) to the extent it mandates Jawaharlal Nehru Technological University (JNTU) to obtain permission from the State Government of Telangana for offering new courses of study or in increasing seat intake in existing courses. Petitioners further seek a direction to the respondents to allow the second petitioner with increased intake in new courses i.e., B.Tech CSE (Data Sciences) - 60 seats, B.Tech CSE (Cyber Security - 60 seats), B.Tech CSE (AIML - 60 seats) and B.Tech Information Technology - 60 seats.
7. Second petitioner is an educational institution imparting technical education in engineering and technical courses. It is maintained by the first petitioner which is a registered society formed to provide educational facilities in the State of Telangana. Second petitioner (referred to hereinafter also as 'the petitioner institution') is granted annual approval by All India 6 Council for Technical Education (AICTE) and has received requisite affiliation from JNTU.
8. It is stated that petitioner institution has to comply with the requirements mandated by the All India Council for Technical Education Act, 1987 (briefly, 'the AICTE Act' hereinafter) which is a central legislation.
9. In the year 2019, in order to keep pace with the emerging trends in engineering, AICTE along with National Institute of Technical Teachers Training Research decided to encourage inclusion of emerging subjects in the curriculum, such as, artificial intelligence, block chain technology, robotics, data sciences, cyber security, virtual reality etc.
10. That apart, from the academic year 2020-21, AICTE has placed a moratorium on the starting of new courses which are in traditional areas of engineering and technology for a period of two years in order to lay more emphasis on new and emerging courses of engineering. Thus, for the academic years 2020-21 and 2021-22 7 increase in intake and starting of new courses was only permitted in courses in new and emerging fields of engineering.
11. However, for the academic year 2022-23, the said moratorium has been lifted and AICTE has permitted starting of new courses and increase of intake in all the courses i.e., conventional courses as well as new and emerging courses of engineering. As a result, institutions imparting technical education in engineering and technical courses have been permitted to increase their intake of students in all the courses offered including the conventional courses.
12. In the above situation, petitioner institution sought to increase the intake of students in the courses offered by the petitioner institution covering model and emerging courses as well as traditional courses. Pertinently, petitioner institution has not sought for increase in the intake of students in respect of courses in existence for the past eight academic years. In view of the recommendations of the AICTE and an increasing 8 demand for seats in the courses offered by the petitioner institution, being a premier institution of the State, it was decided to increase the number of seats in various courses, namely, B.Tech CSE (Data Sciences), B.Tech CSE (Cyber Security), B.Tech CSE (AIML) and B.Tech Information Technology. The said intake was sought to be off set by reduction of 120 seats due to closure of other courses.
13. In the writ affidavit, petitioners have furnished a statement indicating increase in intake in various courses for the academic year 2022-23 which is as under:
Sl. Course Intake for Increase in Total Intake No. A.Y 2021-22 Seat intake for the A.Y.
for A.Y. 2022-23 (as
2022-23 (as per AICTE)
per AICTE)
1 B.Tech CSE 300 120 seats 420
2 B.Tech CSE (Cyber 60 60 seats 120
Security)
3 B.Tech CSE 120 60 seats 180
(Data Sciences)
4 B.Tech CSE 120 60 seats 180
(Artificial
Intelligence &
Machine Learning)
5 B.Tech 120 60 seats 180
Information
Technology
9
14. It is stated that petitioner institution has also decided to reduce the number of seats in B.Tech (Computer Science and Information Technology) in the following manner:
Sl. Course Seats in A.Y Reduction in Total Seats
No. 2021-22 Seats for in A.Y. 2022-
A.Y. 2022-23 23 (as per
(as per AICTE)
AICTE)
1 B.Tech Computer 120 120 seats 0
Science and
Information
Technology
15. Thus, according to the petitioners, petitioner
institution is only seeking an additional intake in the courses offered by it within the limits specified by AICTE and on account of closure/reduction of seats in one course. Petitioners applied to AICTE for approval to such increase in intake for the academic year 2022-23. AICTE granted approval on 03.07.2022 to the petitioner institution for the academic year 2022-23 for all the courses applied for by the petitioner institution with the intake as sought for.
16. Petitioner institution had also applied to JNTU for grant of No Objection Certificate (NOC) for increase in 10 intake in the five courses as mentioned above for the academic year 2022-23 since petitioner institution is affiliated to JNTU. As there was no response, petitioner institution again applied to JNTU. Later on it transpired that JNTU had written a letter to the State Government forwarding the proposal of petitioner institution and others for increase in intake/introduction of new courses and sought for issuance of NOC from the State Government. Since then, JNTU is insisting upon NOC from the State Government for increase in intake/ starting of new courses.
17. According to the petitioners, the reason for JNTU insisting on NOC from the State Government is traceable to the requirement under Regulation Nos.3.4, 5.5, 5.6 and 6.1 of the Regulations. The aforesaid regulations are as under:
3.4. The College/Institute shall follow the norms for intake and number of courses at UG Level and PG Level as approved by the University, the intake in no case shall exceed those sanctioned by AICTE for Courses like B.Tech, M.Tech, MBA, MCA etc., and Pharmacy Courses like B.Pharmacy, 11 M.Pharmacy, Pharma-D, Pharma-D (PB) etc., for that academic year. The University may consider any variation in intake after obtaining approval from AICTE/PCI/State Government/other statutory bodies, prior to admissions for the current academic year.
5.5. The existing College/Institute after obtaining approval/awaiting approval from AICTE, has to obtain the requisite permission from the State Government. Later, the College/Institute can apply for affiliation to the University on or before the cut-off date prescribed by the University through online application for the academic year annually. No application for grant of affiliation will be considered after the cut-off date. However, the Grant of Affiliation by the University is subjected to approval from AICTE/PCI/State Government as the case may be.
5.6. The permission for establishing Colleges and starting of new programs in the existing Colleges shall be considered by the University as per the priority/policy of the State Government if any. Hence, the College/Institute shall obtain prior permission from the State Government to start a new Program/College.
6.1. The applications for issue of NOC for Increase in Intake/Closure of Course or College/Institution/ Change of Name/Change of Site/Location or any other matter where University NOC is required shall be accompanied by the resolution from Society/ Management. Further, for starting a new Course/Increase in intake/Closure of 12 Course or College/Institute/Change of Site/ Location of the existing College/Institute, prior permission from the State Government is mandatory.
18. From the above, it is seen that as per Regulation 5.6, permission for establishing colleges and starting of new programmes in existing colleges shall be considered by JNTU as per policy of the State Government. Therefore, the college/institution shall obtain prior permission from the State Government to start a new programme/college.
18.1. Regulation 6.1 says that for starting of new course/increase in intake etc., prior permission from the State Government is mandatory.
19. Contending that AICTE Act being a central legislation occupies the field relating to starting of new courses or increase in intake of students, the regulations would have to be in tune with the AICTE Act. If the regulations are contrary to the AICTE Act as in the present case, the same would be repugnant. In fact, this is one of the principal grounds of assailing the 13 Regulations. In support of this ground, reliance has been placed on a decision of this Court dated 19.08.2019 in W.P.No.16274 of 2019 (Aurora Educational Society v. Osmania University), which says that once the procedure contemplated under the AICTE Act and the regulations made thereunder are complied with, there is no scope for any further objection or approval by the State Government; policy of the State Government cannot be contrary to the approval granted by AICTE. That apart, relying on a decision of the Supreme Court in Jaya Gokul Educational Trust v. Commissioner & Secretary to Government1, it is contended that there can be no statutory requirement for obtaining approval of the State Government having regard to the fact that AICTE Act occupies the field.
20. It is in the above backdrop, that the writ petitions came to be filed.
1 (2000) 5 SCC 231 14
21. Respondent No.1 JNTU has filed an affidavit through Dr. M.Manzoor Hussain, Registrar. At the outset, it is stated that out of the present batch of writ petitions petitioners in seven writ petitions had earlier challenged the very same set of regulations of JNTU in W.P.No.25815 of 2021 and batch. In the said batch of writ petitions, an interim order was passed on 05.10.2021 by a Division Bench of this Court suspending the Regulations. JNTU filed Civil Appeal No.6932 of 2021 before the Supreme Court assailing the interim order dated 05.10.2021. By order dated 18.11.2021, Supreme Court set aside the interim order dated 05.10.2021. The above decision has been reiterated in Jawaharlal Nehru Technological University v. Crescent Educational Society2. The impugned regulations were also challenged earlier by similarly affiliated colleges of JNTU like that of the petitioners. In V.R.K.Educational Society v. Jawaharlal Nehru Technological University3, this Court had upheld the same set of regulations. It is averred that the same learned counsel appearing for the 2 2021 SCC OnLine SC 1105 3 2018 SCC OnLine Hyd 473 15 present batch of petitioners was also the learned counsel for the petitioners in V.R.K.Educational Society (supra). 21.1. On the above basis, it is contended that the present batch of writ petitions is the third round of litigation challenging the same set of regulations. 21.2. Disputing the contention of the petitioners that the State Government is not permitting the petitioners to run B.Tech courses in new emerging subjects, answering respondent has stated that State Government and JNTU during the academic year 2020-21 had allowed introduction of courses in emerging subjects with about 20,000 seats in the affiliated and autonomous institutions of JNTU.
21.3. Respondent No.1 has stated that once JNTU decides to introduce a new course or decides to increase the intake in existing courses, it will obtain approval from the State Government and thereafter come up with a circular informing all the affiliated colleges about the introduction of new course or increase in intake. Only 16 thereafter obtaining permission or NOC from the State Government would arise which in any case would have to be obtained by the respective affiliated colleges from the State Government before applying to JNTU. State Government is empowered under Section 20 of the Telangana Education Act, 1982 to grant permission for establishing any educational institution as well as to run new course in the existing institutions or to increase the intake in existing courses. Therefore, existing institutions can start new courses or increase additional seats in the existing courses only after obtaining NOC by the State Government which depends upon various factors, such as, educational requirements in the locality as well as the financial implications on the government due to fee reimbursement to various categories of students. 21.4. In paragraph 6 of the counter affidavit, respondent No.1 has given a break up of the proposed increase in the intake of students in the respective colleges of the petitioners. In all, petitioner institutions are seeking additional seats of 2670 apart from 2000 plus seats from 17 other colleges affiliated to JNTU. According to respondent No.1, it will have grave financial implications to the extent of Rs.13,90,37,000.00 per academic year; for all the four years put together the expenditure would be to the tune of Rs.55,61,48,000.00.
21.5. In so far role of AICTE is concerned, it is stated that AICTE is required to grant approval for running an educational institution. Whereafter, AICTE grants annual extension of such approval based on the self-disclosure of the concerned institution. Even for starting new course or increase in intake, AICTE grants approval on self- disclosure by the concerned institution without any inspection or verifying the position relating to faculty, infrastructure and laboratories. Adverting to clause 2.14 and Appendix 17.6 of the AICTE Hand Book, it is stated that an institution seeking approval of AICTE shall also produce NOC from the affiliating University. Therefore, approval granted by AICTE without the NOC of JNTU would have no bearing.
1821.6. In so far JNTU is concerned, it is empowered to grant affiliation but only after inspecting the institution and verifying the faculty, infrastructure and laboratories every year; no affiliation is granted on self-disclosure. In the circumstances, respondent No.1 has pleaded for dismissal of the writ petitions.
22. Respondent No.3 i.e., State of Telangana in the Higher Education Department has filed counter affidavit. In its affidavit, respondent No.3 has stated that AICTE had granted approval to the petitioner institution for increase in intake/starting of new courses. Whereafter JNTU vide letter dated 17.08.2022 had sought for clarification from the State Government as to whether to permit the petitioner institution to increase in intake of students or to allow introduction of new Under Graduate (UG) courses from the academic year 2022-23 onwards, further stating that upon direction of Government of Telangana in Higher Education (TE) Department, JNTU would be in a position to issue affiliation for the academic 19 year 2022-23 with regard to increase in intake as well as introduction of new UG courses.
22.1. Thereafter, Commissioner of Technical Education, Government of Telangana had submitted proposal on 22.08.2022 to the Government to issue NOC for increase of intake/starting of new courses in petitioner institution. 22.2. State Government has referred to the judgment of the Supreme Court in A.P.J.Abdul Kalam Technological University v. Jai Bharat College of Management and Engineering Technology4 and has submitted therefrom that in the said decision Supreme Court has upheld the importance of the role played by the State Government as well as by the affiliating University, noting that it would be open to the State Government to even prescribe standards high than those recognized by AICTE. Thereafter reference has been made to the decision of the Supreme Court in Jawaharlal Nehru Technological University v. Sangam Laxmi Bai Vidyapeet5 highlighting the provision of Section 20 of the Telangana Education Act, 1982. In 4 (2021) 2 SCC 564 5 (2019) 17 SCC 729 20 terms of Section 20(2)(d) of the aforesaid Act permission for opening new courses is required from the State Government. It is a policy decision of the State Government for granting permission for increase in intake of students or for starting new courses in each academic year in the professional colleges of the State. 22.3. However, in the affidavit, State Government has indicated that the second phase of counselling for admission into UG courses in engineering colleges of the State was scheduled from 11.10.2022. In this connection, proposal received from the Commissioner of Technical Education for increase in intake/introduction of new UG courses from the academic year 2022-23 in the petitioner institution is under examination of the government. It is contended that permission from the State Government in respect of increase in intake or starting of new courses is mandatory as it involves financial implication owing to fee reimbursement of the State Government. Based on the increase in intake or starting of new courses, government would have to make necessary provision in budget 21 allocation, otherwise students eligible for fee reimbursement covered by the increased intake or new courses would be excluded from such benefit. In the circumstances, respondent No.3 seeks dismissal of the writ petitions.
23. In the hearing held on 21.10.2022, petitioners prayed for granting interim relief by allowing petitioner colleges affiliated to JNTU to take part in the third phase of counselling for admission into UG courses in respect of higher intake instead of the present intake for emerging/new subjects. Taking the view that grant of such interim relief would virtually amount to granting final relief, the same was declined. However, having regard to the mandate of Section 20(2)(d) of the Telangana Education Act, 1982, this Court directed State of Telangana in the Higher Education and Technical Education Department to consider the request of the petitioner for enhancing the intake in respect of emerging/new subjects and for issuance of NOC and thereafter to take a proper decision in the matter after 22 giving an opportunity of hearing to the representatives of the petitioner colleges. The decision was directed to be taken within seven days. Relevant portion of the order dated 21.10.2022 reads as follows:
Be that as it may, interim relief sought for by the petitioners i.e., allowing the petitioner-colleges affiliated to JNTU to take part in the third phase counselling for undergraduate courses in respect of higher intake instead of the present intake for emerging/new subjects would amount to granting the final relief, besides, it may lead to unforeseen consequences.
Therefore, having regard to the mandate of Section 20(2)(d) of the Telangana Education Act, 1982, we direct respondents No.2 and 3 i.e., State of Telangana in the Higher Education and Technical Education Department to consider the requests of the petitioners for enhancing the intake in respect of emerging/new subjects and for issuance of NOC and thereafter to take an appropriate decision in the matter after hearing the representatives of the petitioners colleges within seven days from today.
24. On the next date of hearing i.e., on 04.11.2022, Ms. Padmaja, learned Government Pleader for Higher Education placed before us a copy of memo dated 02.11.2022 of the Higher Education Department and submitted that proposal for sanction of new/additional 23 courses and increase in intake in the Private Unaided Engineering Colleges of the State involving financial implication on the State Government towards reimbursement of tuition fee etc., was under circulation to the competent authority for taking a decision. While granting time to the State to take the required decision, this Court clarified that admission under Category-B Management Quota seats for which 05.11.2022 was the last date for the academic year 2022-23 would be subject to orders of this Court.
25. On 14.11.2022, Ms. Padmaja, learned Government Pleader for Higher Education placed before us a memo dated 12.11.2022 issued by the Secretary to the Government of Telangana, Higher Education (Technical Education) Department, as per which, the proposal for introduction of new courses and increase in intake in Private Unaided Professional Colleges for the academic year 2022-23 (with financial implication) has been rejected in the light of policy decision taken by the State Government not to accord NOC for introduction of new 24 courses and increase in intake. Thereafter, the matter was heard on 24.11.2022.
26. Mr. S. Niranjan Reddy, learned Senior Counsel for the petitioners submits that it is not that there is a blanket refusal on the part of the State to accord NOC for increase in intake of students or for starting new courses covering emerging subjects. In respect of the emerging subjects where there is no financial implication, State of Telangana has granted permission for both but such permissions are being withheld where it involves financial implication. In so far financial implication is concerned, he submits that such financial implication is on account of fee reimbursement scheme adopted by the State of Telangana as a welfare measure for students belonging to backward classes. He submits that the same cannot be a good reason for refusing permission since it is not at all germane to consider for granting permission. 26.1. Learned Senior Counsel has referred to a decision of the Supreme Court in Collector (District Magistrate), 25 Allahabad v. Raja Ram Jaiswal6 and submits therefrom that where power is conferred to achieve a purpose, it has repeatedly been reiterated that such power must be exercised reasonably and in good faith to effectuate the purpose. Power of the State Government under Section 20 of the Telangana Education Act, 1982 (briefly, 'the Education Act' hereinafter) is to ensure establishment of educational institutions keeping in mind the needs of the society and also in tune with the changing times. He submits that traditional engineering subjects are paving way for emerging subjects. State must be alive to the aspirations of the student community. Exercise of power, therefore, must be for legitimate reasons. It cannot be influenced by irrelevant or non-germane considerations. He further submits that in a case of increase in student intake capacity or setting up a new course covering emerging subjects, interest of the student community has to be borne in mind and therefore, the challenge in the Court has to be decided expeditiously.
6 (1985) 3 SCC 1 26 26.2. Turning his attention to the role played by JNTU, he submits that the role played by JNTU is perplexing. It appears that JNTU is more eager than the State Government in ensuring that increase in intake or setting up of new courses in the educational institutions of the petitioners does not fructify.
27. On the other hand, learned Government Pleader for Higher Education submits that in exercise of the power conferred under Section 20(2)(d) of the Education Act, State of Telangana has considered the request of the petitioners considering all facts and thereafter has taken a conscious decision on 12.11.2022 rejecting the proposal for increase in intake and introduction of new courses in Private Unaided Professional Colleges (with financial implication) for the academic year 2022-23. She submits that it is a policy decision of the State Government which may not be interfered with by the Court.
28. On the other hand, Mr. B.Mayur Reddy, learned counsel for JNTU submits that on a conjoint reading of 27 Regulations 5.5, 5.6 and 6.1 of the Regulations, it is evident that prior permission of the State Government for starting new courses or for increase in intake of students is mandatory. In the absence thereof, no order can be passed, interim or final, to allow increase in intake or starting new courses. He further submits that earlier also similar writ petitions were filed assailing the regulations of JNTU which were dismissed by this Court in V.R.K. Educational Society (supra). Though this Court had passed an interim order in another batch of writ petitions filed by identical colleges allowing students to be admitted to the new courses by enhancing intake capacity, the same was set aside by the Supreme Court. Therefore, filing of the present batch of writ petitions is nothing but an abuse of the process of the court. Leaned counsel has placed reliance on the following decisions:
(1) JNTU v. Sangam Laxmi Bai Vidyapeet (supra);
(2) V.R.K.Educational Society v. Jawaharlal Nehru Technological University (supra);
(3) A.P.J.Abdul Kalam Technological University v. Jai Bharath College of Management and Engineering 28 Technology (supra); and (4) Jawaharlal Nehru Technological University v.
Crescent Educational Society (supra).
29. Mr. Muddu Vijay, learned counsel representing AICTE, however, supports the case of the petitioners. On the other hand, Ms. C.Vani Reddy, learned counsel representing respondent Nos.5 and 6 submits that the said respondents are only formal parties.
30. Submissions made by learned counsel for the parties have received the due consideration of the Court.
31. At the outset, we may advert to the Regulations. In exercise of the powers conferred by Section 29 of the Jawaharlal Nehru Technological University Hyderabad Act, 2008; read with Section 47 thereof and in supersession of the previous regulations, the JNTU Regulations (already referred to as 'the Regulations') regarding grant of affiliation to colleges/institutes with effect from the academic year 2020-21 have been framed. We have already extracted Regulations 3.4, 5.5, 5.6 and 29 6.1 which have been impugned in the present proceedings.
31.1. Regulation 3.4 mandates the college/institute affiliated to JNTU to follow the norms for intake and number of courses at UG level and post graduate (PG) level as approved by JNTU. However, the intake in no case shall exceed those sanctioned by AICTE for courses like B.Tech, M.Tech etc. JNTU may consider any variation in intake after obtaining approval from AICTE or the State Government prior to admissions for the current academic year.
31.2. As per Regulation 5.5, the existing college/institute after obtaining approval/awaiting approval from AICTE has to obtain the requisite permission from the State Government. Later, the college/institute can apply for affiliation to the JNTU on or before the cut-off date prescribed by JNTU through online application for the concerned academic year annually. However, no application for granting affiliation will be considered after the cut-off date. In any case, grant of affiliation by JNTU 30 is subject to approval from AICTE/State Government etc., as the case may be.
31.3. On the other hand, Regulation 5.6 mandates that the permission for establishing new colleges and starting of new programmes in the existing colleges shall be considered by JNTU as per the priority/policy of the State Government. Therefore, the college/institute shall obtain prior permission from the State Government to start a new programme/college.
31.4. Likewise Regulation 6.1 mandates that applications for issue of NOC for increase in intake etc., where JNTU NOC is required, shall be accompanied by the resolution from the society/management of the institute. Further, for starting a new course/increase in intake etc., prior permission from the State Government is mandatory.
32. A common thread running through the impugned regulations is that either for starting a new course or for increase in intake of students, prior permission from the State Government is mandatory keeping in mind the 31 priority/policy of the State Government. However, as per the Approval Process Handbook 2022-23 of AICTE, more particularly clause 17.3 thereof NOC from the concerned State Government would not be necessary for existing institution to start new programmes.
33. In V.R.K.Educational Society (supra), some of the regulations notified by JNTU for the academic year 2017- 18 came up for challenge before a Division Bench of this Court. The reason for such challenge was that some of the colleges represented by the petitioners were put up by JNTU under no admission category; in respect of others JNTU granted affiliation for an intake lesser than the intake permitted by AICTE; and in respect of two colleges JNTU rejected affiliation on the ground that the policy considerations of the State Government did not permit creation of new courses or new colleges in respect of certain disciplines. Amongst the regulations which were impugned in the said batch of writ petitions was Regulation 3.4 which we have discussed above. One of the grounds of challenge was that the regulations framed 32 by JNTU are repugnant to the regulations of AICTE which finds place in the Approval Process Handbook. A Division Bench of this Court noted that AICTE was granted statutory sanction under the AICTE Act which can be traced to Entry 66 of List I of the Seventh Schedule of the Constitution. On the other hand, JNTU Act and the Regulations framed by JNTU can be traced to Entry 25 of List III. This Court observed that whenever a contention of repugnancy between a central legislation and a state enactment is raised, primary duty of the Court should be to see whether both the legislations can survive without destruction of the other. After an elaborate analysis, this Court was unable to see any repugnancy between the two. There was no express stipulation in the AICTE Regulations or in the Approval Process Handbook on the issue. Therefore, the field was left unoccupied. So long as the field is unoccupied by a central legislation, there is no bar in the said law to make a prescription, education coming under the concurrent list. This Court held that Regulations of AICTE do not declare them as having the final word. Law is well settled 33 that while the University cannot dilute the standards as prescribed by AICTE, Universities are always free to prescribe higher standards. Therefore, challenge to Regulation 3.4 was repelled.
33.1. This position has been reiterated by the Supreme Court in Jai Bharath College of Management and Engineering Technology (supra). It has been held that the law is now well settled that while it is not open to the Universities to dilute norms and standards prescribed by AICTE, it is always open to the Universities to prescribe enhanced norms. Power of the Universities to prescribe enhanced norms and standards cannot be doubted. Even the State Government can prescribe higher standards than those prescribed by AICTE.
34. Before we deal with the other impugned Regulations of JNTU, we may advert to Section 20 of the Telangana Education Act, 1982. Section 20 of the aforesaid Act reads as under:
20. Permission for establishment of
educational institutions.-- (1) The competent
34
authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. (2) In pursuance of the notification under sub- section (1), any educational agency including local authority or registered body of persons intending to--
(a) establish an institution imparting education;
(b) open higher classes in an institution imparting primary education;
(c) upgrade any such institution into a high school; or
(d) open new courses (certificate, diploma, degree, post-graduate degree courses, etc.), may make an application, within such period in such manner and to such authority as may be notified for the grant of permission therefor. (3) Any educational agency applying for permission under sub-section (2) shall--
(a) before the permission is granted, satisfy the authority concerned--
(i) that there is need for providing educational facilities to the people in the locality;
(ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;
(iii) that the institution is proposed to be located in sanitary and healthy surroundings; 35
(b) enclose to the application--
(i) title deeds relating to the site for building, playground and garden proposed to be provided;
(ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and
(c) within the period specified by the authority concerned in the order granting permission--
(i) appoint teaching staff qualified according to the rules made by the Government in this behalf;
(ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission.
(4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987, no educational institution shall be established except in accordance with the provisions of this Act and any person who contravenes the provisions of this section or who after the permission granted to him under this section having been cancelled continues to run such institution shall be punished with simple imprisonment which shall not be less than six months but which may extend to three years and with fine which shall not be less than three thousand rupees but which may extend to fifty thousand rupees:
Provided further that the court convicting a person under this section shall also order the 36 closure of the institution with respect to which the offence is committed.
34.1. Section 20 of the Telangana Education Act deals with permission for establishment of educational institutions. While sub-section (1) mandates the competent authority to conduct survey from time to time so as to identify the educational needs of the locality under its jurisdiction, sub-section (2) enables any educational agency to make an application to such competent authority to establish an institution or to open new courses etc. Sub-section (3) on the other hand, requires fulfilment of certain conditions by the educational agency applying for permission under sub- section (2) whereas sub-section (4) prohibits establishment of any educational institution except in accordance with the provisions of the Telangana Education Act.
35. This provision came up for consideration before the Supreme Court in Sangam Laxmi Bai Vidyapeet (supra). 37 Lauding the objective behind the aforesaid provision, Supreme Court held as follows:
14. A bare reading of the aforesaid provisions of Section 20(1) makes it clear that the survey is conducted so as to identify the educational needs of the locality would definitely include within its ken how many institutions are operating in the area and whether there is any further requirement of opening educational institutions/new courses in existing colleges, and it is also imperative under Section 20(3)(a)(i) that educational agency has to satisfy the authority that there is a need for providing educational facilities to the people in the locality. In case there are already a large number of institutions imparting education in the area the competent authority may be justified not to grant the NOC, for permitting an institution to come up in the area.
15. The provisions contained in Section 20 are wholesome and intend not only to cater to the educational needs of the area but also prevent the mushroom growth of the institutions/courses. In case institutions are permitted to run each and every course that may affect the very standard of education and may ultimately result in sub- standard education. There is already a paucity of well-qualified teachers in a large number of institutions and the available seats in Pharmacy course in Hyderabad City are remaining vacant every year in spite of the reduction in a number of seats. It had not been possible to fill up the 38 available vacancies due to non-availability of students. Thus, it is apparent that when 30 institutions in Hyderabad City are already running Pharmacy course, the refusal to grant NOC by the University was wholly justified.
35.1. In the aforesaid decision, Supreme Court has categorically held that provisions of the Telangana Education Act are not repugnant to the AICTE Act and therefore, there is no room to accept the submission that Section 20 of the Telangana Education Act is inoperative. Elaborating on this aspect, Supreme Court has held that AICTE Act does not lay down any norm as to how many colleges should be there in a particular city/place. State Government and the University in the absence of any such norms/rules having been framed by AICTE can always have their say as per applicable statutory provision/policy. Section 20 of the Telangana Education Act enables Universities to grant NOC after considering the local requirement. As no guidelines in this regard have been framed by AICTE, it cannot be said to be an exercise of power against norms fixed by AICTE. Consequently, no repugnancy arises.
39
36. Reverting back to the impugned regulations, we have already noticed that the common thread running through the above regulations is the need to obtain NOC from the State Government in the event of increase in seat intake or starting of a new course which is mandatory. We have also noted above, challenge to Regulation 3.4 has been repelled by this Court in V.R.K.Educaional Society (supra). As held by the Supreme Court in Sangam Laxmi Bai Vidyapeet (supra) the question relating to increase in seat intake or setting up of new courses/new colleges is an unoccupied field, unoccupied by any central legislation like the AICTE Act. In such a situation, it is certainly open to the State Government to have its say in matters relating to increase in seat intake or setting up of new courses.
37. We may mention that as per G.O.Rt.No.170 of the Higher Education (TE) Department, Government of Telangana dated 13.09.2022, which has been placed on record at page 64 of the paper book, Government of Telangana has accorded permission for increase in 40 intake/introduction of new courses etc., in the Unaided Professional Colleges affiliated to JNTU and other Universities from the academic year 2022-23 without financial implications as indicated in Annexures I, II and III appended to the aforesaid order. However, the permission granted has been made subject to fulfilment of conditions as stipulated by AICTE or by the affiliating University. From a perusal of Annexures I, II and III appended to G.O.Rt.No.170, it is seen that in none of the institutions to which permission has been accorded, there is overall increase in the intake. What has been done in those institutions is that increase in intake has been either provided for or new courses have been introduced with corresponding reduction in the intake of students in existing courses. In other words, the intake which was there in 2021-22 has been maintained in the academic year 2022-23. Therefore, from the above, it appears that there is no additional financial burden on the State arising out of increase in intake or opening of new courses. On the other hand, respondent No.1 in its counter affidavit has pointed out that in respect of the 41 institutions belonging to the petitioners there is net increase of students in the academic year 2022-23. For example, in CVR College of Engineering i.e., writ petition No.36237 of 2022 in respect of six courses, the previous total intake for academic year 2021-22 was 840; proposed intake for the academic year 2022-23 is 1080. There is, thus, net increase of 240 seats. Similar is the case in respect of all the writ petitions. On this basis, it is contended that institutions represented by the petitioners are seeking additional intake (seats) of 2670 apart from existing intake, which will have serious financial implications. For one academic year, the financial implication for the additional intake works out to Rs.13,90,37,000.00 and if for all the four the academic years are taken into consideration, the financial implication would be Rs.55,61,48,000.00.
38. Without commenting on the figures submitted by respondent No.1 as to the financial implications, we can safely say that additional intake of seats would certainly have a financial bearing on the State exchequer. 42 Therefore, the views of the State Government becomes relevant. As already noted above, in the course of the hearing, Government of Telangana in the Higher Education (TE) Department had issued Memo dated 12.11.2022 rejecting the proposal of the Commissioner of Technical Education for introduction of new courses and for increase in intake in Private Unaided Professional Colleges for the academic year 2022-23 with financial implications as a policy decision taken by the Government. Such a decision taken by the Government cannot be faulted as being arbitrary or unreasonable. Impact on finances of the State is certainly a germane consideration for the State Government to take a decision in matter relating to increase in seat intake or allowing new courses to be set up. It cannot be said to be an extraneous or irrelevant or non-germane consideration.
39. In an identical challenge where this Court held that action of JNTU in seeking approval of the State Government before granting affiliation to new courses in existing institutions already approved by AICTE is illegal, 43 JNTU had filed SLP before the Supreme Court which was allowed by the Supreme Court in Crescent Educational Society (supra). In the aforesaid decision, Supreme Court expressly referred to Regulations 5.5, 5.6 and 6.1 which have been impugned in the present proceedings, whereafter Supreme Court observed as follows:
10. Regulation 5.5 expressly embodies the requirement of the permission of the State Government after an existing college or institution has obtained the approval or, as the case may be, is awaiting the approval of the AICTE. Later, the institution can apply for affiliation by JNTU on or before the cut-off date. Regulation 5.6 stipulates that the permission for establishing colleges and starting of new programmes in existing colleges would be considered by JNTU in accordance with the priority/policy of the State Government and, hence, the prior permission of the State Government is required. Likewise, Regulation 6.1 makes it mandatory to obtain the prior permission of the State Government either to start a new course or, for that matter, to increase the intake capacity of an existing course.
11. The role of the State Government has been reiterated in several decisions of this Court. At the present stage, it is material to cite two of those decisions. Significantly, as we shall note, the earlier decision in Jaya Gokul Education Trust (supra), 44 upon which reliance was placed by the High Court has also been considered in that context.
12. In Jawaharlal Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet, a two-Judge Bench of this Court considered the provisions of Section 20 of the Telangana Education Act 1982 under which permission is required, inter alia, for opening new courses. In that context, the Court observed:
"14. A bare reading of the aforesaid provisions of section 20(1) makes it clear that the survey is conducted so as to identify the educational needs of the locality would definitely include within its ken how many institutions are operating in the area and whether there is any further requirement of opening educational institutions/new courses in existing colleges, and it is also imperative under section 20(3)(a)(i) that educational agency has to satisfy the authority that there is a need for providing educational facilities to the people in the locality. In case there are already a large number of institutions imparting education in the area the competent authority may be justified not to grant the NOC, for permitting an institution to come up in the area.
15. The provisions contained in section 20 are wholesome and intend not only to cater to the educational needs of the area but also prevent the mushroom growth of the institutions/ courses. In case institutions are permitted to run each and every course that may affect the very standard of education and may ultimately result in substandard education. There is already a 45 paucity of well qualified teachers in a large number of institutions and the available seats in Pharmacy course in the Hyderabad city are remaining vacant every year in spite of the reduction in a number of seats. It had not been 10 possible to fill up the available vacancies due to non-availability of students. Thus, it is apparent that when 30 institutions in Hyderabad city are already running Pharmacy course, the refusal to grant NOC by the University was wholly justified.
16. Apart from the provisions contained in section 20, when we consider Regulations 5.2 and 5.3 which clearly provide that a new college proposing to offer technical education with the University affiliation shall first seek a NOC from the University before applying to AICTE/ PCI/any other statutory body. Regulation 5.3 provides that the permission for starting of new programmes in the existing colleges shall be considered by the University as per the priority/policy of the State Government if any.
13. On the basis of the above analysis, the Court held that it was erroneous for the High Court to hold that it was not permissible for the State Government to frame a policy and that JNTU was bound to issue its NOC.
39.1. Referring to the decision in Jai Bharath College of Management and Engineering Technology (supra), Supreme Court held that the role played by the State Government 46 and by the affiliating University cannot be overlooked. After the advent of AICTE Regulations, applications for extension of approval are processed online on the basis of self-disclosure. Therefore, it is all the more necessary for the Universities to conduct the process of affiliation with scrupulous care in order to ensure that the interest of students is not imperilled. Of course, in that case, State Government had granted NOC and JNTU indicated its willingness to take the process of affiliation post NOC.
40. Thus, on an indepth analysis of the above decisions and upon thorough consideration of all aspects of the matter, we are of the unhesitant view that challenge to Regulations 3.4, 5.5, 5.6 and 6.1 of the Regulations cannot be sustained and the same is accordingly rejected. Further prayer made for a direction to the respondents to permit the petitioner institutions to introduce the new courses and to increase the seat intake cannot also be granted in view of rejection of the State Government to grant NOC for the said purpose. Therefore, no relief can be granted to the petitioners at 47 this stage. Consequently, all the writ petitions are found to be devoid of merit. Those are accordingly dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, pending if any, shall stand closed.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 16.12.2022 Note: LR copy be marked.
(By order) Pln