Iimt College Of Polytechnic And ... vs State Of U.P. And Another
2015 Latest Caselaw 1342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 

 
Case :- WRIT - C No. - 26033 of 2015
 

 
Petitioner :- IIMT College Of Polytechnic and another
 
Respondent :- State Of U.P. and another
 
Counsel for Petitioner :- Ritesh Upadhyay, Mr. G.K. Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Mithal,J.

Under challenge is basically the order dated 13.5.2015 of the Secretary of the Pravidhik Shiksha Parishad (Technical Education Board), U.P., Lucknow (in short 'Board') and the resolution No.7 dated 22.8.2012 of the Board and consequently one of the prayer is for a direction to consider the application of the petitioners for granting affiliation to three years full time diploma course in Civil Engineering and Mechanical Engineering (Production) in the second shift.

The Secretary of the Board by the impugned order has refused to grant affiliation to the second shift of the above two courses to the petitioner-institute due to the resolution No.7 dated 22.8.2012 of the Board by which it was resolved that before considering the grant of affiliation to the second shift diploma courses of the technical institutes it must be ensured that the institute has completed three years of affiliation and that its first batch has passed out.

The IIMT College of Polytechnic, Greater NOIDA (hereinafter referred to as the petitioner-institute) is a private unaided polytechnic imparting three years diploma courses in Civil Engineering, Mechanical Engineering (Maintenance), Mechanical Engineering (Production), Electrical Engineering and Electronics & Communication Engineering with effect from the session 2012-13.

The petitioner-institute has the approval for imparting education in the above diploma courses from All India Council for Technical Education (in short "AICTE") vide letter dated 10.7.2012. The Board also accorded affiliation to the above institute vide office order dated 14.9.2012 from the session 2012-13 to the extent of 60 students per discipline in first shift.

The petitioner-institute sought for approval of AICTE for enhancement of 60 seats each from the session 2013-14 in Civil Engineering and Mechanical Engineering (Production) in the second shift. AICTE accorded its approval for the session 2013 - 14 vide letter dated 15.5.2013, for the session 2014 - 15 vide order dated 28.3.2014 and for the session 2015 - 16 vide letter dated 7.4.2015. However, the Board failed to process the papers for grant of affiliation on its basis for the session 2013 - 14; for the session 2014 - 15 the affiliation was refused at the fag end on 15.4.2014 and finally for the session 2015 - 16 vide the impugned order dated 13.5.2015 on the basis of the resolution of the Board dated 22.8.2012.

I have heard Sri G. K. Singh, Senior Counsel assisted by Sri Ritesh Upadhyay, learned counsel for the petitioner and learned Standing Counsel for the respondents. Both of them agreed for final disposal of the petition on the pleadings on record.

The one and the only one submission of the counsel for the petitioner is that once AICTE has granted approval to the petitioner-institute for running the second shift in the above two diploma courses with the intake of 60 students each, the Board has no authority of law to refuse affiliation. The Board cannot impose condition inconsistent with the AICTE norms and any condition in conflict of it would be ineffective and bad.

Learned Standing Counsel on the other hand, contends that the decision to refuse affiliation by the Board has been taken on the basis of the earlier resolution of the Board for the reason that no batch of the petitioner-institute had passed out as yet on account of which it is not possible to assess the quality of teaching and of students of the said institute which is sine qua non for grant of affiliation. The affiliation is not a matter of right to any institute.

The controversy in short is whether the petitioner-institute has been rightly refused affiliation for the session 2014-15 for the second shift of the above two diploma courses.

The All India Counsel for Technical Education Act, 1987 ('Act' for short) was enacted and AICTE was established with the view to co-ordinate the development of the technical education throughout the country and for maintenance of norms and standards in technical education system and the matters connected thereto. The Act vide Section 10 provides for functions of the AICTE and one of the functions enumerated therein vide sub-section (k) is grant of approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. The relevant part of Section 10 of the AICTE, 1987 reads as under:

"10. Functions of the Council. - It shall be the duty of the Counsel to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Counsel may -

(a)......

..........

..........

(j).......

(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned."

In view of the above provision, the AICTE is vested with the power to grant approval for starting technical institutions and for the introduction of new courses therein. It means that no technical institute can start functioning or commence education in new courses or programmes without the approval of AICTE. The approval of AICTE for starting new technical institutions or for introducing new courses or programmes is in a way like granting recognition to the technical institutions and to courses run by such institutions. This is in order to have a uniform standard of the technical education system in the country.

In the State of U.P. there is a State enactment known as the Pravidhik Shiksha Adhiniyam, 1962 (in short 'Adhiniyam') which provides for establishment of Board of Technical Education for dealing with the matters connected with technical education. The functioning of the said Board is enumerated in Section 12 of the Adhiniyam and, inter alia, includes to affiliate institutions and prescribe courses of study and instructions leading to examinations conducted by it and to conduct examinations for awarding certificates and diplomas. In other words, the Board of Technical Education, U.P. is an examining body like a University, for the diploma courses connected with technical education.

It may be pertinent to note that the AICTE under the Act is not vested with any power to hold and conduct the examinations of such courses and for imparting certificates thereof. The said function has been conferred upon the University or to special authorities such as the Board.

The aforesaid Adhiniyam vide Section 2 (a) defines 'affiliated institution' to mean the institution affiliated to the Board in respect of any course or courses of study in accordance with the provisions of the Adhiniyam or the regulations made thereunder.

A plain reading of the provisions of the Act and Adhiniyam would reveal that both the Central and the State enactments operate in a different field. The primary function of the Act is to bring about co-ordinated & integrated development and promotion of quality improvement in a planned manner in the technical education system and matter connected therewith by setting and regulating norms and standards thereof. At the same time, the Adhiniyam aims to establish examining body for the technical education and do provide method and norms of conducting examinations and awarding certificates thereof for which purpose the Board has been empowered to affiliate institutions and to prescribe courses and programmes of studies and instructions.

In view of the above, an institute interested in imparting education in technical field is first required to seek recognition/ approval of AICTE for starting a technical institute and for introduction of new courses and programmes therein. It is only after an institution is granted approval to start a technical institute or to introduce a new course or programme that it becomes mandatory upon it to seek affiliation with an examining body such as Board. Therefore, recognition by the AICTE and affiliation by the Board are both sine qua non for running a technical institution.

In Parashvanath Charitable Trust and others Vs. All India Counsel for Technical Education and others (2013) 3 SCC 385 the Apex Court considered the object of the Act, functioning of the AICTE and role of the AICTE viz-a-viz the Universities and the State Government. It was observed that the University (examining body) could not impose any condition inconsistent with the Act or its regulations or the conditions prescribed by AICTE. Therefore, there is no requirement for obtaining the approval of the State Government and any condition of the State Government or the University requiring such approval would be repugnant to the Act. The department concerned of the State Government and the affiliating University (in the present case the Board) cannot lay down any guideline or policy in conflict with the Central statute or the standards laid down by the Central body i.e. AICTE.

There is no controversy with regard to the legal preposition as laid down by the Supreme Court in the above decision but the controversy in the present case is slightly different i.e. whether the Board/State has rightly refused to grant affiliation to the petitioner-institute in the above two courses of technical education in the second shift.

No law or any authoritative decision of the Court lays down that once recognition/approval has been granted to an institute to commence any diploma course, then the affiliation to the examining body/University would be automatic or is a natural consequence. The affiliation follows the approval/recognition of the AICTE and for affiliation there may be different set of norms and unless the same are fulfilled the affiliation may not be possible but such norms could not run contrary to the ones set out by the AICTE.

Learned counsel for the petitioner is at a loss to demonstrate that the above resolution of the Board is in conflict with any guideline or norm laid down by the AICTE.

In the instant case, one of the norm for affiliation laid down by the Board which is coming in the way of the petitioner-institute is the resolution No.7 of the Board dated 22.8.2012 which provides that before granting affiliation to the second shift of any diploma course of technical education to an institute it must be ensured that the institute has completed three years of affiliation and that one batch has passed out the said diploma course.

The aforesaid resolution of the Board is simply a resolution which has been adopted in one of its meeting. It has not been made public. It has not been published. It has not been notified. There is nothing on record to establish that it has been notified in any manner and made known to the public. The people and the public at large cannot be said to be aware of it.

In view of the above, such a resolution which remains within the four corners of the meeting room of the Board cannot have any public application.

The aforesaid resolution imposes the condition that the institution seeking affiliation to any course for the second shift must have completed at least three years of affiliation and that a batch of students must have passed out from the institute so as to adjudge its quality.

The petitioner-institute was granted affiliation in all the five diploma courses with the intake of 60 students each in the first shift w.e.f. 2012-13 session vide letter dated 14.9.2012. The said affiliation is intact and is continuing. The petitioner-institute has not violated any norm which may give an occasion to de-affiliate it.

The aforesaid affiliation was granted by the Board without ascertaining or adjudging the quality of its education as at that time no student had been admitted or had passed out. Therefore, when the Board had granted affiliation for running the above diploma courses without examining the quality of education imparted by the institute, any condition to adjudge its quality on the basis of passed out students at the time of extension of affiliation is totally unfair, arbitrary and is in contradiction to its own method of granting affiliation at the initial stage.

The availability of proper infrastructure, good faculty and the capacity of the institute to impart technical education to additional students and to run the second shift per see are relevant factors for the grant of affiliation to additional seat or second shift in above two diploma courses but the past performance is not material and a relevant criteria for the purpose. The petitioner institute is not said to be lacking in any of above aspects.

It is not the case of anyone that the petitioner-institute failed to fulfil any other condition of affiliation or that it is lacking any infrastructure or otherwise on account of which affiliation cannot be granted.

In view of the aforesaid facts and circumstances, in my opinion, the Board is not justified in refusing affiliation to the petitioner-institute in the above two diploma courses in the second shift for the session 2015-16 onwards on the basis of the resolution dated 22.8.2012 which is held to be arbitrary having no legal sanctity attached to it.

Accordingly, the impugned order dated 13.5.2015 (Annexure 12-A) is quashed and the respondent No.2 is directed to reconsider the matter of grant of affiliation to the second shifts in the above two diploma courses to the petitioner-institute for the additional 60 seats each from the session 2015-16 onwards as expeditiously as possible, preferably within a period of six weeks from the date of production of a certified copy of this order before it.

The writ petition is allowed as above.

Order Date :- 20.7.2015

Brijesh