Telangana High Court

Cherabuddi Educational Society vs Jawaharlal Nehru Technological ... on 16 December, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

    * 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

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

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;

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

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

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

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

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)

         (Data Sciences)

         (Artificial
         Intelligence    &
         Machine Learning)

         Information
         Technology

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)

       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

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,

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

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

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.

(2000) 5 SCC 231

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

2021 SCC OnLine SC 1105

2018 SCC OnLine Hyd 473

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

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

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.

21.6. 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

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

(2021) 2 SCC 564

(2019) 17 SCC 729

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

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

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

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

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),

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.

(1985) 3 SCC 1

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

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

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

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

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

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

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

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

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;

(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;

(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

(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

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).

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

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.

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

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

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.

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,

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),

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

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

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.