Bombay High Court
Holy-Wood Academy vs All India Council For Technical ... on 7 December, 2012
Bench: Dr. D.Y. Chandrachud, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10511 OF 2012
Holy-Wood Academy, Kolhapur
and another ..Petitioners.
versus
All India Council for Technical Education
and others ..Respondents.
.....
Mr. V.M. Thorat with Mr. Nitin Dhumal for the Petitioners.
Mr. Mihir Desai with Ms. Ushajee Peri for Respondent No.1.
Ms. S.S. Bhende, AGP for Respondents 2 and 4.
Mr. Amit B. Borkar for Respondent No.3.
......
CORAM : DR.D.Y.CHANDRACHUD, and
A.A.SAYED, JJ.
7 December 2012.
ORAL JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) :
This Petition has been listed before the Court together with a batch of
Petitions. Submissions on the issue of law have been heard in the lead petition
(Writ Petition 10575 of 2012 - Sou. Devibai Narayandas Chhabda Rural
Education Society v. Shivaji University) in which judgment has been delivered
yesterday. In the present case, the First Petitioner applied to the AICTE on 20
January 2012 for extension of approval to certain existing courses and for
commencing new undergraduate and postgraduate courses in engineering. The
Petition relates to the affiliation sought from the University for commencing
Masters in Engineering Degree Courses in the subjects of Mechanical
Engineering Design and Electronics and Telecommunications respectively. After
applying to the AICTE, the Petitioners submitted a proposal to the Third
Respondent, Shivaji University, on 21 January 2012 for the grant of affiliation for
starting new undergraduate as well as postgraduate courses. The approval of
the AICTE was published on the web portal on 10 May 2012 inter alia for the
commencement of postgraduate degree courses in each of the two subjects
noted earlier with an intake capacity of 18 students each for academic year
2012-13. Following this the Government of Maharashtra issued a resolution on
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30 June 2012. Clause 3 of the resolution contained a requirement that the
institution must obtain affiliation of the University under the Maharashtra
Universities Act 1994. On 1 September 2012 the Directorate of Technical
Education of the State Government granted permission subject inter alia to
various conditions including the requirement of affiliation of the University. On 24
July 2012 the Petitioners submitted fees of Rs.20,000/- to the University for
yearly affiliation. On 9 August 2012 the University set up a local inspection
committee for physical verification of the college and for submitting a report. In
the meantime on 24 August 2012 the Deputy Vice-Chancellor in a
communication addressed to the Petitioners specifically stated that no admission
should be granted to any student in the absence of affiliation by the University.
The report of the inspection committee found that it was necessary for the
college to (i) appoint duly approved teaching faculty for the postgraduate
courses; (ii) enhance the available stock of books for the postgraduate courses
and (iii) purchase the required equipment for conducting the postgraduate
courses. The inspection committee noted that there was a deficiency in the
faculty of conducting the postgraduate courses as well as in regard to the
availability of equipment. As regards the undergraduate courses, the inspection
committee had, however, observed that the required infrastructure had been
provided. The academic council by its decision of 11 October 2012 accepted the
report of the inspection committee as regards the undergraduate courses, but
rejected the recommendation of the committee for the grant of affiliation for a
period of one year for the postgraduate degree course. Aggrieved the
Petitioners have challenged the decision of the academic council. The
Petitioners have sought a direction to the University to grant its affiliation and to
set aside the resolution of the academic council dated 11 October 2012.
2. In the judgment which has been delivered by this Court yesterday in the
lead Petition, this Court has considered the jurisdiction and position of an
affiliating university under State legislation more particularly under Section 81 of
the Maharashtra Universities Act 1994 and the relationship which it bears to the
exercise of powers by the AICTE under the All India Council for Technical
Education Act 1987. After adverting to the judgment of the Supreme Court in
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State of Tamil Nadu v. Adhiyaman Educational & Research Institute 1, this
Court has noted that the operation of the Maharashtra Universities Act 1994 in
the matter of granting affiliation continues to hold the field upon the grant of
permission by the AICTE for the establishment of a technical institution subject to
the condition that the norms which the affiliating university observes cannot be at
variance with the regulations and guidelines prescribed by the AICTE. This
indeed is the position which has been categorically affirmed by the judgment of
the Supreme Court in the decision in Adhiyaman Educational & Research
Institute (supra) where the Court has observed as follows :
"The provisions of the University Act regarding affiliation of technical
colleges like the engineering colleges and the conditions for grant and
continuation of such affiliation by the University shall, however, remain
operative but the conditions that are prescribed by the University for grant
and continuance of affiliation will have to be in conformity with the norms
and guidelines prescribed by the Council in respect of matters entrusted
to it under Section 10 of the Central Act."
3. In the judgment in the main matter this Court has also duly considered the
judgment of the Supreme Court in State of Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya2 which construed the provisions of the
National Council for Teachers Education Act 1993. In that judgment, the
Supreme Court held that once the NCTE had granted recognition under the
provisions of central legislation, it would not be open to the State Government,
acting in exercise of powers conferred by Section 82 of the Maharashtra
Universities Act 1994 to decline its NOC for the establishment of a college on the
basis of a policy decision. The grant of affiliation, however, is a power which the
University as an examining body exercises and is legitimately entitled to exercise
since the affiliation of the University is sought for the conferment of degrees by
the University concerned. As a matter of fact, the submissions which have been
urged by the AICTE before this Court also accord with the position in law as
stated herein above. The AICTE while assisting the Court in the resolution of the
present batch of cases has also urged that (i) Upon the grant of permission by
the AICTE to a technical institution for the commencement of a new course, the
University acting under the Maharashtra Universities Act 1994 is not denuded of
1 (1995) 4 SCC 104.
2 (2006) 9 SCC 1.
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its power to grant affiliation nor is it required to grant affiliation as a matter of
course without due application of mind to the norms and guidelines which are
prescribed by the AICTE; (ii) In areas which are covered by the regulations and
guidelines prescribed by the AICTE, the University cannot lay down norms at
variance with regulations which are prescribed by the AICTE. Finally, counsel
appearing on behalf of the AICTE has joined in expressing concern about the
grant of admissions by educational institutions without the affiliation of the
University and has urged that such a procedure would be unlawful. For the
reasons which we have more specifically enunciated in our judgment in the
companion case noted earlier, we have come to the conclusion that the grant of
admission to students without the affiliation of the University is unlawful and
cannot be countenanced. In the recent judgment of the Supreme Court in
Adarsh Shiksha Mahavidyalaya
Court
v. Subhash Rahangdale 3, the Supreme
has expressed its disapproval of the grant of admissions and more
particularly of the exercise of the power under Article 226 to pass interim orders
protecting such admissions or granting permission to such students to appear at
the examinations. In the present case, it has been urged on behalf of the
Petitioners that once the University grants affiliation, it will relate back to the
academic year and that consequently the Petitioner was led to believe
particularly on the basis of the judgment in Sant Dnyaneshwar that it was
entitled to grant admissions without waiting for affiliation. As we have noted in
the judgment in the main matter, the judgment of the Supreme Court in Sant
Dnyaneshwar did not deal with the issue of affiliation under Section 81 of the
Maharashtra Universities Act 1994 since the issue which fell for consideration
was whether it was open to the State Government to decline its permission or
NOC under Section 82 despite the grant of recognition by the NCTE acting
under central legislation. We are affirmatively of the view that the position of the
Universities constituted under the Maharashtra Universities Act 1994 in the
matter of grant of affiliation cannot be allowed to be diluted by educational
institutions proceeding to grant admissions to students even in the absence of
affiliation. The passing of orders interim or otherwise by the Court under Article
226 to protect such institutions would only encourage lawlessness besides
undermining the authority of the statutorily constituted academic institutions and
3 (2012) 2 SCC 425.
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bodies such as the Universities. The AICTE as noted earlier has also expressed
its concern over the state of affairs in which admissions are granted without the
affiliation of the University concerned.
4. On behalf of the Petitioners it has been urged that in the present case
what the inspection committee had found was only a suggestion and did not
constitute a finding. That is not how we read the recommendations of the
committee in the present case which have been extracted in extenso in the
resolution passed by academic council. According to the Petitioners they do
have a complement of the required faculty and the necessary equipment. This
in our view is a matter which has to be assessed by the University and is
certainly not an issue on which the Court can substitute its own finding for that
which has been arrived at by the academic authority unless it is shown that the
finding is perverse or one which no reasonable body of persons could have
arrived at. Counsel appearing on behalf of the University has submitted that it is
necessary for the University to carefully scrutinize as to whether the staff which
has been appointed by the college in the present case has been appointed to
fulfill the needs of the undergraduate programme or whether, independently, the
required complement of faculty is available to meet the requirements of the
postgraduate degree programme in the two subjects for which an application has
been made. On the state of the record as it stands we are unable to come to the
conclusion that the view which was taken by the University is perverse or that it
is contrary to law. We, however, record the assurance which has been furnished
by counsel appearing on behalf of the University that the University shall set up a
local inspection team to verify compliance by the college with the requirements
for affiliation and, if it is found that the college does in fact meet the requirements
for conducting the postgraduate degree courses in the two subjects for which an
application has been made, a decision shall be taken thereon in accordance with
law after due application of mind by the academic council. This exercise of
appointing a local inspection committee should be carried out expeditiously and
the committee should be directed to visit the college within a period of two weeks
from the receipt of an authenticated copy of this order.
5. Counsel appearing on behalf of the Petitioners has sought a direction of
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the Court for allowing the students who have been admitted by the Petitioners for
the postgraduate courses for which affiliation has been refused to appear at the
ensuing examinations. As we have noted earlier, this very course of action has
been the subject matter of a severe disapproval by the Supreme Court including
in the recent judgment in Adarsh Shiksha Mahavidyalaya (supra) which has
relied upon the earlier judgment of the Supreme Court. No such relief in our
view can legitimately be granted. The Petitioners have taken the law in their own
hands by granting admissions without affiliation. For these reasons, there is no
merit in the Petition which is accordingly dismissed.
(Dr. D.Y. Chandrachud, J.)
ig (A.A. Sayed, J.)
