{1} wp570110.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5701 OF 2010 1 G.H.R. Education Foundation Society, Gat No.57/1, Sirsoli Road, Mohadi, Jalgaon, through its Secretary, Pritam Avinish Raisoni, age: 30 years, Occ: Business, R/o Ganpati Nagar, Jalgaon. 2 Preeti Vishwesh Agrawal, age: 49 years, Occ: Service, “Preeti-Vishwa”, 10, Suyog Colony, Opp. Girna Water Tank, Jalgaon. Petitioners Versus 1 The State of Maharashtra, through Director of Technical Education, Government Technical Campus, Samangaon Road, Nashik Road, Nashik. 2 North Maharashtra University, Umavi Nagar, Jalgaon, through its Registrar. 3 Director of Board for College & University Development, North Maharashtra University, Jalgaon. Respondents Mr.P.M.Shah, Senior Counsel holding for Mr.S.P.Shah, advocate for petitioners. {2} wp570110.odt Mr.K.B.Choudhary, Additional Government Pleader for Respondent No.1. Mr.A.B.Girase, advocate for Respondents No.2 & 3. CORAM : D.B.BHOSALE AND R.M.BORDE, JJ. DATE : 3 rd March, 2011 JUDGMENT (Per R.M.Borde, J.): 1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 This petition is presented by the Education Society questioning the correctness of the decision rendered by the North Maharashtra University, Jalgaon, refusing to accord approval to the appointment of petitioner no.2 Dr.Preeti Agrawal as Director of G.H.Raisoni Institute of Information Technology, Jalgaon. 3 Petitioner No.1 – Society started Information Technology College at Jalgaon in the year 2007. In terms of the decision rendered by Nagpur Bench of this Court in Writ Petition No.2216/2006, it was obligatory on the part of the State Government and all the Universities to take steps for ensuring filling up vacant posts of Principals in affiliated Colleges till 31.05.2009. On failure to comply with the directions, the State Government and Universities were directed to take necessary action against the concerned Colleges. The matter was carried to {3} wp570110.odt the Apex Court in Special Leave Petition No.19344/2009 and the decision rendered by the High Court was confirmed, however, the Supreme Court granted extension of time for making appointments till 31.05.2010. The North Maharashtra University issued Notification on 09.03.2010, directing the Colleges to fill up the vacant posts of Principals before extended date. 4 In pursuance to the directives issued by the High Court and confirmed by the Apex Court in the judgments referred to above and as per the directives issued by the North Maharashtra University, it was necessary for the petitioner – Society to appoint full time Principal / Director for the Institute. Accordingly, appointment of petitioner no.2 Dr.Preeti Agrawal, as a Director of the Institute, was made on 14.06.2010. Petitioner no.1 forwarded proposal seeking approval to the appointment of petitioner no.2, however, the University refused to grant approval, in view of the order passed on 01.07.2010. As such, the Institution as well as Director have approached this Court. 5 The qualifications prescribed for making appointment to the post of Principal / Director, by the All India Council for Technical Education, are as below: Minimum of 10 years teaching and/or research and/or industrial experience of which at least 5 years should be at the level of Associate {4} wp570110.odt Professor or; minimum of 13 years experience in teaching and/or Research and/or Industry. In case of research experience, good academic record and books/research paper publications/IPR/patents record shall be required as deemed fit by the expert members in Selection committee. If the experience in industry is considered, the same shall be at managerial level equivalent to Professor with active participation record in devising/designing, developing, planning, executing, analyzing, quality control, innovating, training, technical books/research paper publications/IPR/patents, etc. as deemed fit by the expert members in Selection Committee. Flair for Management and Leadership is essential. 6 That, so far as petitioner no.2 is concerned, she possesses educational qualification as M.A., M.C.M., D.H.R.M., Ph.D. Petitioner no.2 initially joined as Manager Personnel & Human Resources (H.R.) on 01.06.1982 and was in employment with Jain Irrigation Systems Ltd. till 29.06.1987. Thus, her total experience in the managerial cadre is for five years and one month. Petitioner no.2 thereafter joined at Institute of Management and Research run by Khandesh College Education Society, as a full {5} wp570110.odt time lecturer in Computer Management and was in employment for a period between 01.02.1996 till 03.05.2007. The total period of service comes to 11 years and two months. Petitioner no.2 was appointed by petitioner no.1 as an Assistant Professor since 25.05.2007. She was appointed as Professor since 22.04.2010 and since 14.06.2010 she is appointed as Director of the Institute of Information Technology, Jalgaon. Thus, her total teaching experience with petitioner no.1 Institution is 3 years and 5 months. 7 It is the contention of petitioners that petitioner no.2 fulfills the norms prescribed by the All India Council for Technical Education (“AICTE”) in respect of teaching experience. The University, however, while turning down the proposal tendered by Petitioner No.1-Society, has recorded a reason that experience of petitioner no.2 as an “approved” teacher is only liable to be considered, which, according to the University, is for three years and three months. Whereas, experience of petitioner no.2, as an Assistant Professor, which is liable to be considered, is for a period of one year and 8 months. It is recorded in the order by the University that as per the provisions of Section 2(34) of the Maharashtra Universities Act, 1994, a “teacher” means full-time approved professor, associate professor, assistant professor, reader, lecturer, librarian, [principal, deputy or assistant librarian and documentation officer in the university and college librarian], Director or instructor of physical education in any university {6} wp570110.odt department, conducted, affiliated or autonomous college, autonomous institution or department or recognised institution in the university. It is contended that considering the provisions of Maharashtra Universities Act, petitioner no.2 does not fulfill the requirement in respect of experience as a teacher and as such, appointment of petitioner no.2 cannot be approved. 8 Shri Shah, learned Senior Counsel appearing for petitioners, contended that the view taken by the University is erroneous, inasmuch as, insistence upon adherence to the provisions of Universities Act cannot be made as the field of academic standard as well as planning and co-ordinated development of technical education in relation to planned qualitative growth and the regulation and proper maintenance of norms and standards in the technical education system is governed by the provisions of All India Council for Technical Education Act, 1987. 9 Shri Shah, invited our attention to the preamble of the AICTE Act, 1987, and contended that the provisions prescribing the norms and standards for courses, curricula, as well as staff pattern and staff qualifications, as contained in Section 10 of the Act will have a precedence. The field of technical education would be governed by the provisions of AICTE Act and the University authorities have fallen in error in applying the definition of teacher {7} wp570110.odt contained in the University Act for considering the extent of experience of a teacher in technical education. The provisions of Section 10(i) of the AICTE Act provides, thus: 10 Functions of the Council:- It shall be the duty of the Council 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 Council may-- (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; 10 The University has filed affidavit of the Assistant Registrar opposing the petition. It is contended in the affidavit-in- reply that as petitioner no.2 does not fulfill the requirement of Section 2(34) of the Maharashtra Universities Act, 1994, she cannot be considered to be eligible for being appointed as Director of the Technical Institute. Section 2(34) prescribes thus: 2(34) “teacher” means full-time approved professor, associate professor, assistant professor, reader, lecturer, librarian, [principal, deputy or assistant librarian and documentation officer in the university and college librarian], Director or instructor of {8} wp570110.odt physical education in any university department, conducted, affiliated or autonomous college, autonomous institution or department or recognised institution in the university; 11 The emphasis is on the word “approved”, either as a Professor or Associate Professor, Assistant Professor, Lecturer, etc. It is contended that approval to the appointment of petitioner no.2 as a lecturer was for a period of three years and three months and as an Assistant Professor for a period of one year and eight months and as such, petitioner no.2 does not fulfill the requirement of experience as laid down by the AICTE. 12 The University has not disputed the contentions raised by petitioners that petitioner no.2 has worked as a lecturer for a period of 11 years and 2 months with Khandesh College Education Society and as an Assistant Professor for about three years with G.H.Raisoni Institute of Information Technology. Thus, total teaching experience of petitioner no.2 is more than 14 years, which fact has not been controverted by the University. The norms prescribed by the AICTE, which are relevant for appointment of a Director, prescribe minimum 13 years of experience in teaching and/or research and/or industry. So far as petitioner no.2 is concerned, she possesses more than 13 years’ experience as a teacher and apart from this aspect, she has gained experience in the managerial cadre with Jain Irrigation Systems for about five {9} wp570110.odt years. It is also not disputed that petitioner no.2 possesses educational qualification required for the post of Director. 13 Shri Shah, learned Senior Counsel appearing for petitioners, has invited our attention to a communication made by one Mr.Anil Rao, annexed at Exhibit-N. The petitioner no.2 has been communicated that the Board of Studies in Computer Management has appointed a Sub-Committee to modify the syllabus of certain subjects and petitioner no.2 is appointed as Chairman of the said Committee. The North Maharashtra University also invited petitioner no.2 to take upon the responsibility of Chairmanship of a Committee for prescribing syllabus for M.C.M. - Semester-III. A communication, in that regard, is annexed at page 67 of the petition. Petitioner no.2 has also undertaken the responsibility as paper setter as well as examiner to assess performance of the students, at the request of the University. Considering these aspects, it would not be open for the University to insist upon technicalities for defeating just claim of petitioner no.2 for being appointed as Director of the Institute. 14 It is to be noted that the Maharashtra Universities Act, 1994, is a State Legislation, whereas, All India Council for Technical Education Act, 1987, is a Central Legislation and both the enactments operate in different fields. In the event of there being any conflict and overlapping in the functions of the Council {10} wp570110.odt and the University, the provisions of the Central Act will prevail upon the State Legislation. It is to be noted that AICTE Act provides for establishment of All India Council for Technical Education with a view to proper planning and co-ordinated development of the technical education system throughout the Country, promotion of qualitative improvement of such education in relation to planned qualitative growth and regulation and proper maintenance of norms and standards in the technical education system. Thus, the field of technical education is governed by the provisions of AICTE Act, 1987. 15 As stated above, Section 10(i) provides that the Council shall be responsible to lay down the norms for staff pattern and staff qualifications. It would be appropriate to refer to the decision of the Apex Court in the matter of State of Tamil Nadu & another Vs. Adhiyaman Educational & Research Institute & others, reported in (1995) 4 SCC 104. In paragraph 30, it is observed thus: “A comparison of the Central Act and the University Act will show that as far as the institutions imparting technical education are concerned, there is a conflict between and overlapping of the functions of the Council and the University. 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 {11} wp570110.odt 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, to lay down norms or granting autonomy to technical institutions, providing guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declaring institutions at various levels and types fit to receive grants, advising the Commission constituted under the Act for declaring technical educational institutions as deemed universities, setting up of National Board of Accreditation to periodically conduct evaluation on the basis of guidelines and standards specified and to make recommendations to it or to the Council or the Commission or other bodies under the Act regarding recognition or de-recognition of the institution or the programme conducted by it. Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the engineering colleges. As has been pointed out earlier, the Central Act has been enacted by Parliament under Entry 66 of List I to {12} wp570110.odt coordinate and determine the standards of technical institutions as well as under Entry 25 of List III. 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 operation 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.” (emphasis supplied) 16 Similar view is taken in respect of teacher’s training and education courses in the matter of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & others, reported in (2006) 9 SCC 1. The field of teacher’s training and education is governed by NCTE Act. The matter before the Apex Court was in respect of according permission to open B.Ed. Colleges. While considering the supremacy of role of the NCTE, it is observed by the Apex Court in paragraphs 62 and 63 of the judgment, thus: “62 From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of {13} wp570110.odt List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution. 63 In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher- education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”.” 17 The Apex Court, in the matter of Thirumuruga {14} wp570110.odt Krupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust Vs. State of Tamil Nadu & others, reported in (1996) 3 SCC 15, while considering the role of Indian Medical Council, in the context of opening a new Medical College, has observed thus: “Though Section 5(5) of the Medical University Act relates to affiliation of colleges, the proviso inserted therein deals with the establishment of a college and imposes a condition that for the purpose of affiliation of a college, permission of the State Government to establish the college is necessary. In other words, the said proviso that has been inserted by the State Act, in pith and substance, is a provision relating to the establishment of a college and merely because it is placed in a provision relating to affiliation of colleges to the University, the said proviso would not cease to be a provision dealing with establishment of a college. However, in Section 10-A Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by Parliament. The legislative entry which is relevant for the purpose of the present case is Entry 25 of List III (as amended).” 18 In view of the decision rendered by the Apex Court in the matter of State of Tamil Nadu & another Vs. Adhiyaman {15} wp570110.odt Educational & Research Institute & others, reported in (1995) 4 SCC 104 (supra), as well as considering the provisions of the All India Council for Technical Education Act, 1987, the field prescribing staff pattern and staff qualifications is governed by the Central Legislation. The University authorities cannot be permitted to read the provisions of Section 2(34) of the Maharashtra Universities Act, 1994, while considering the eligibility criteria of petitioner no.2 for being appointed to the post of Director of the Technical Institute. The provisions of Section 2(34) cannot be read and the compliance thereof cannot be insisted upon as the field of staff qualifications is governed by a special enactment, which governs the technical education in the Country i.e. All India Council for Technical Education Act, 1987. 19 As stated in above referred paragraphs, the University has not disputed the extent of experience possessed by petitioner no.2. It is not disputed that Petitioner No.2 possesses requisite educational qualifications for being appointed to the post of Director of Technical Institute. Petitioner no.2 fulfills the norms as prescribed by AICTE for being appointed to the post of Director. In this view of the matter, the refusal by the University to grant approval to the appointment of petitioner no.2 is erroneous. It was obligatory on the part of the University authorities to grant approval to the appointment of petitioner no.2, once it is brought to their notice that the candidate i.e. Petitioner no.2 fulfills the {16} wp570110.odt norms prescribed by the AICTE. 19 In the result, the order passed by the University, refusing to grant approval to the appointment of petitioner no.2 as Director of G.H.Raisoni Institute of Information Technology, Jalgaon, is quashed and set aside. Respondent No.2-University is directed to grant approval to the appointment of petitioner no.2 as Director of G.H.Raisoni Institute of Information Technology, Jalgaon, expeditiously. 20 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE D.B.BHOSALE JUDGE JUDGE adb/wp570110