Bombay High Court
Mukund Education Society Thr. ... vs Sant Gadge Baba Amravati ... on 14 July, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3593 OF 2016
1) Mukund Education Society,
through its Secretary
Vaishali M. Walchale,
Opposite Circuit House,
Civil Lines, Washim,
Tahsil and District
Washim - 444505.
2) Sanmati Engineering
College, through its Principal/
Director, Survey No.40,
Washim - Malegaon Road,
At post Sawargaon Barde,
Tahsil and District
Washim - 444505. ... Petitioners
- Versus -
1) Sant Gadge Baba Amravati
University, through its
Registrar, Tahsil and District
Amravati.
2) All India Council for Technical
Education, through its
Regional Officer, Industrial
Assurance Building, 2nd Floor,
Nariman Road, Mumbai-400020.
3) State of Maharashtra, through
Director of Technical Education,
3, Mahapalika Marg, Dhobi
Talao, Mumbai - 01. ... Respondents
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Shri S.V. Manohar, Senior Advocate with Shri U.J.
Deshpande, Advocate for petitioners.
Shri J.B. Kasat, Advocate for respondent no.1.
Shri N.R. Patil, Assistant Government Pleader for
respondent no.3.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JULY 14, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Looking to the nature of controversy and on
joint request, we have heard petition finally by issuing
rule and making it returnable forthwith.
2) Petitioner no.1 is an educational Society, which
runs petitioner no.2 Engineering College. The
petitioners have questioned notification dated
19/5/2016 issued by respondent no.1 University
whereby intake capacity of petitioner no.2 has been
brought down from 16 to 0 in academic year 2016-17
though affiliation has been continued.
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3) We have heard Senior Adv. Manohar with
Adv. Deshpande for petitioners, Adv. Kasat for
respondent no.1 University and Shri Patil, learned
Assistant Government Pleader for respondent no.3
State. Nobody has appeared for respondent no.2 All
India Council for Technical Education.
4) Learned Senior Adv. Manohar has pointed out
that the College has been given intake capacity initially
in the year 2014-15 of 18 seats each for post
graduation courses in Computer Science and
Information Technology as well as Structural
Engineering. On 5/4/2016, respondent no.2 AICTE has
brought it down to 16 each for academic year 2016-17.
In view of this exercise, it was not open to respondent
no.1 to conduct any inspection and to vary either the
intake capacity or then on that account, indirectly to
restrain petitioners from effecting any admission to
these courses by denying affiliation. Our attention is
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drawn to the report of respondent no.1 University dated
22/4/2016, which initially recommended no admissions
either in under graduation courses or then in post
graduation courses. The petitioners submitted their
reply to this communication on 6/5/2016 and though
the reply has been accepted as it is, without conducting
any fresh inspection or verification, the earlier direction
to bring down intake capacity to `0' in respect of post
graduation courses has been maintained. The intake
capacity brought down to `0' insofar as under
graduation courses is concerned has been varied and
thus, petitioners are permitted to admit students to
under graduation courses. Contention is that having
initiated this exercise belatedly, i.e. in the month of
April 2016, when petitioners submitted compliance
report and pointed out the recruitment made, denial of
verification and indirectly denying their right to admit
students to post graduation courses is an act not
supported by the provisions of All India Council for
Technical Education Act, 1987 (hereinafter referred to
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as "1987 Act") or then All India Council for Technical
Education (Grant of Approvals for Technical Institutions)
Regulations, 2012.
5) To demonstrate the primacy of Central
legislation in this respect and, therefore, subordinate
role of respondent no.1 University in relation to matters
covered under Section 10-A of 1987 Act, support has
been taken from various judgments to which we will
make reference little later. Contention of learned
Senior Adv. Manohar is that stand inconsistent with the
permission by respondent no.2 could not have been
adopted by respondent no.1. Thus, the very exercise of
verification undertaken by respondent no.1 is
questioned on the ground of absence of authority. In
addition, it is stated that when petitioners responded
positively and pointed out compliance, without verifying
necessary facts, respondent no.1 could not have stuck
to earlier position. Prayer is, therefore, to quash and
set aside the impugned notification dated 19/5/2016
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issued by respondent no.1 and to enable petitioners to
admit students in post graduation courses as per
permission given by All India Council for Technical
Education on 5/4/2016.
6) Adv. Kasat for respondent no.1, on the other
hand, submits that the stand taken by respondent no.1
University is in no way inconsistent with the stand of
respondent no.2. The request for continuation of
affiliation was submitted on 10/3/2016 and a
Committee of five members was constituted on
4/4/2016 to visit the establishment of petitioner no.2
and to conduct local enquiry. The Committee verified
the position on 22/4/2016 by paying personal visit and
submitted its report. The deficiencies noted therein
were brought to the notice of petitioners on 2/5/2016.
The petitioners submitted compliance report on
6/5/2016 and in view of short time left as also the fact
that verification was already undertaken a few days
back, the Enquiry Committee on the basis of
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documents submitted by petitioners, again submitted
to University a report dated 10/5/2016. According to
learned Counsel, respondent no.1 University as an
examining Authority has every right to look into
availability of teaching staff and having noted that
deficiency, appropriate orders have been passed. He,
therefore, submits that there is no jurisdictional error at
all.
7) Shri Patil, learned Assistant Government
Pleader for respondent no.3, has invited our attention
to compliance report submitted by petitioners. In order
to demonstrate that in the light of said compliance
report, stand of respondent no.1 University cannot be
said to be unjustified. He adopts the arguments of Adv.
Kasat for respondent no.1.
8) The judgment of Hon'ble Apex Court in State
of T.N. And another vs. Adhiyaman Educational
and Research Institute and others {(1995) 4 SCC
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104}, in paragraph 30, points out result of comparison
of 1987 Act and Tamil Nadu Private Colleges
(Regulation) Act and Madras University Act. It has
taken note of the fact that there is a conflict between
and overlapping of the functions of the Council and the
University. It has found that under Section 10 of the
Central Act, it is the Council, which is entrusted with
the power, particularly to allocate and disburse grants,
to evolve suitable performance appraisal systems
incorporating norms and mechanisms for maintaining
accountability of the technical Institutions, laying down
norms and standards for courses, curricula, staff
pattern, staff qualifications, assessment and
examinations, fixing norms and guidelines for charging
tuition fee and other fees, granting approval for starting
new technical Institutions or introducing new courses or
programmes, etc. It has also taken note of the fact
that it can set up a National Board of Accreditation for
periodical conduct of evaluation on the basis of
guidelines and standards specified and to make
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recommendations to it or to the Council or Commission
or other Bodies under the Central Act. Thus, in relation
to these matters, the Hon'ble Apex Court found that it
is not the University Act and the University, but it is the
Central Act and Council created under it, which
possesses jurisdiction. It has been observed that to
that extent, after coming into force of Central Act, the
provisions of University Act would be deemed to
become unenforceable in case of technical Colleges like
Engineering Colleges. Ultimately, the Hon'ble Apex
Court has held that such enactments of State cannot
lay down standards and requirements higher than
those prescribed by the Central Act for technical
Institutions and cannot deny seats to applicants on the
ground that they do not fulfill such higher standards.
9) In Shri Shivaji Education Society,
Amravati and another vs. Maharashtra University
of Health Sciences and others (2012 (1) Mh.L.J. 799)
Division Bench of this Court has held that provisions of
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Section 10-A of Medical Council Act override provisions
of Sections 64 and 65 of the Maharashtra University of
Health Sciences Act to the extent they are contrary. It
has been observed that once permission is given by
Indian Medical Council to start a particular post
graduate course, further Resolution of State
Government as well as affiliation by University would be
mere formality and would not debar College in
admitting the students.
10) In Dr. D.Y. Patil Pratishthan's Padmashree
Dr. D.Y. Patil Polytechnic, Kolhapur vs.
Directorate of Technical Education, Mumbai and
others (2014 (5) Mh.L.J. 590), Division Bench of this
Court has noted that All India Council for Technical
Education, which has final authority, had granted
permission to open new Colleges and to start new
courses with prescribed intake capacity. In paragraph
19 of the judgment, it is observed that State
Government, which may have a role to play in granting
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approval to these additional Colleges or seats as it
imposes additional financial burden on State
Exchequer, still that does not mean that State
Government has a superior power to refuse such
approval as prayed for. In facts before it, reason for
refusal was found irrelevant. It has been noted in
paragraph 20 that such an objection ought to have
been raised immediately at appropriate time where it
was required for the State Government or its Officers to
forward their views when such application for new
College/course was moved by petitioner. In paragraph
21, it has been held that All India Council for Technical
Education's approval binds even respondent State
unless it was challenged and set aside. The State
Government, therefore, could not have withheld
permission to petitioner to start the Institution/course
or to increase intake capacity.
11) In Jaya Gokul Educational Trust vs.
Commissioner and Secretary to Government
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Higher Education Department, Thiruvanathapuram,
Kerala State and another {(2000) 5 SCC 231}, in
view of Section 10-A of 1987 Act, the Hon'ble Apex
Court has held that grant of approval for establishment
of technical Institutions is solely governed by the said
Act and Council established thereunder is the only Body
authorized to grant it. The Hon'ble Apex Court has held
that provisions of any enactment conferring such
powers on the State Government or University would
be void. In paragraphs 13 and 14 of the judgment, the
Hon'ble Apex Court has reproduced relevant statutory
provisions and at the end of paragraph 17, it has been
found that all that was necessary under the Regulations
was that All India Council for Technical Education should
have consulted the University. In paragraph 30 of the
judgment, the Hon'ble Apex Court has stated that
University, therefore, ought to have considered the
issue of grant of final or further affiliation without
waiting for any approval from the State Government
and ought to have acted on the basis of permission
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granted by All India Council for Technical Education and
other relevant factors in the University Act or statutes,
which are not inconsistent with All India Council for
Technical Education Act or its Regulations.
12) Thus, all these judgments show that
respondent no.1 University can consider the issue of
affiliation or its continuation in a manner, which is
consistent with the provisions of All India Council for
Technical Education Act or Regulations framed
thereunder. As per Clause 4.14 of 2012 Regulations,
State Government and affiliating University can forward
their views on applications received under Clauses 4.1
and 4.2 to the concerned Regional Office of the Council
as prescribed in approval process. If such views are
received within stipulated time, the same need to be
considered by the Regional Committee for further
processing for grant of approval. In default, the Council
can proceed further for completion of approval process.
Final decision is to be taken under Clause 4.18 by the
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Executive Committee of All India Council for Technical
Education on recommendations of Regional Committee.
13) Thus, procedure for approval envisaged in
these Regulations and application for continuation of
affiliation made by petitioners to respondent no.1
University are two entirely different proceedings. Here
respondent no.1 University has not denied affiliation
and in absence of necessary teaching staff, brought
down intake capacity from 16 to 0. The absence of
necessary teaching staff is borne out on record. The
correctness of report submitted by Committee on
10/5/2016 or before that on 22/4/2016 at least to this
extent is not in dispute. The Verification Committee
sent by University for local inspection had reported
deficiency of six post graduate Teachers as per All India
Council for Technical Education's norms and
qualifications. It has also mentioned shortfall of 15
numbers of non-teaching staff. Thus, the University
has not pointed out that it has applied its own norm,
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but it has chosen to act and implement All India Council
for Technical Education's norms only. In view of this, it
has mentioned intake capacity in relation to both post
graduation courses mentioned supra as `0'.
14) After receipt of earlier communication from
University dated 2/5/2016, petitioners have submitted
their compliance report on 6/5/2016. As per that
compliance report, they have mentioned that because
of resignation of staff, there was shortfall and
recruitment process would commence soon after
necessary permission from University. They have also
mentioned that they had submitted application on
6/5/2016 seeking permission to advertise the vacancies
and advertisement would be published on 7/5/2016.
Insofar as vacancy in the post of qualified Principal as
per All India Council for Technical Education's
qualifications is concerned, it has been stipulated that
on 7/4/2016 application was submitted to University for
necessary permission. Thus, at least till 10/5/2016 or
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7/5/2016 the vacancies were not filled in. From records
it is apparent that even till 10/5/2016 six vacancies for
teaching post graduation courses were not filled in. At
the end of compliance report, there is a note, which
mentions that petitioners may require time to remove
certain deficiencies. However, an assurance that
deficiencies would be removed at the earliest has been
given. By way of illustration, i.e. to point out
difficulties, subject of approval to Principal and Teachers
by University has been mentioned.
15) The outcome of inspection conducted by the
All India Council for Technical Education, if any, has not
been pointed out to this Court by petitioners. During
hearing, we wanted to find out why intake capacity,
which was 18 till 2015-16 has been brought down to 16
in the year 2016-17. However, petitioners have not
placed on record any documents to explain this. The
petitioners have remained satisfied only with technical
contention that such deficiency, even if presumed to be
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in existence, is not relevant and cannot be looked into
by respondent no.1 University. However, petitioners,
who are exploiting the post graduation education for
more than two years, did not care to place on record
any inconsistent inspection note or remark by All India
Council for Technical Education. It cannot be
presumed that All India Council for Technical Education
permitted petitioners to admit students without
recruiting competent technical staff. Absence of
Principal or teaching staff is also not pleaded to be an
unforeseen circumstance. In March 2016 while moving
for continuation of affiliation, petitioners were aware of
it and still they were expecting University not to object.
They have acted as late as on 6/5/2016, but while filing
this writ petition on 23/6/2016, list of P.G. Teachers
appointed with their qualifications is not annexed. No
such appointments are pleaded. Petitioners, who did
not act within time, wanted to push respondent no.1
University at the eleventh hour. We find that
respondent no.1 has adopted a correct line of approach.
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Petitioners have to appoint competent full time
teaching and non-teaching staff immediately. We may
point out here that even at under graduate level, it has
deficiency of 78 faculty members. Sitting in writ
jurisdiction, we cannot permit such petitioners to
capitalise only on technicalities and play with career of
students and lives of employees.
16) Taking overall view of the matter, we find that
respondent no.1 University has applied a relevant norm
prescribed by All India Council for Technical Education
only and found out deficiencies. As an examining
Authority, it has rightly refused permission to admit
students though it has continued affiliation. In absence
of qualified and competent teaching staff, respondent
no.1 University cannot be said to be without any power
in issuing the impugned notification dated 19/5/2016.
We do not see any inconsistency or occasion therefor in
action of respondent no.1 University and action of
respondent no.2 All India Council for Technical
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Education.
17) No case is made out warranting interference.
The petition is, therefore, dismissed. Rule is
discharged. No costs.
18) Copy of this judgment be sent to All India
Council for Technical Education.
JUDGE JUDGE
khj
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