HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.3518 & 3585 of 2011 Dated: 26-04-2011 Between: Little Angels Educational Society, Tirupati, rep. by its Secretary & Correspondent & aother. ...Petitioners And The All India Council for Technical Education, New Delhi, rep. by its Member Secretary & others. ...Respondents. For the petitioners : Sri S. Sriram, Advocate. For Respondent No.1 : Sri K.Ramakanth Reddy, Advocate. For Respondent No.2 : GP FOR TECHNICAL EDUCATION For Respondent No.3 : Sri K.Tatangapani Reddy, Advocate < Gist: > Head Note: ? CITATIONS: 1. (1995) 2 SCC 117 2. (2008) 2 SCC 672 3. (1995) 4 SCC 104 4. (2007) 3 SCC 720 5. (2001) 2 SCC 386 6. (2006) 2 SCC 545 7. (2004) 6 SCC 661 8. (2009) 11 SCC 726 C/15 HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.3518 & 3585 of 2011 DATE: 26.04.2011 W.P.No.3518 of 2011 Between : Little Angels Educational Society, Tirupati, rep. by its Secretary & Correspondent & aother. ...Petitioners And The All India Council for Technical Education, New Delhi, rep. by its Member Secretary & others. ...Respondents. HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.3518 & 3585 of 2011 COMMON ORDER : As common questions of law arise in both these writ petitions on similar set of facts, these writ petitions are heard together and are being disposed of by this common order. In view of the urgency expressed by the learned counsel for petitioners and as much as counter affidavits are also filed by the respondents, on their request, the matters were heard and are disposed of at the stage of admission. For the purpose of disposal, I refer to the facts as arise in W.P.No.3518 of 2011. In this writ petition, the petitioners seek directions by way of Mandamus, directing the 1st respondent-All India Council for Technical Education, a body constituted under the provisions of the All India Council for Technical Education Act, 1987 (hereinafter referred to as ‘the AICTE Act’), to process the application of petitioners for conversion of the 2nd petitioner-institution as a co-education college from the academic year 2011-12 by relaxing the norms notified in Clauses 18.7 (1) and 18.7 (6) of Appendix 18 of the norms and standards prescribed, in terms of the representation of petitioners, dated 21st January 2011, or in the alternative, to declare the aforesaid clauses as illegal, arbitrary and offending Article 14 of the Constitution of India and also to hold such norms will constitute as unreasonable restrictions and offend fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. The 1st petitioner is a Society registered under the Societies Registration Act, 1860. The 1st petitioner-Society has made an application during the academic year 2008-09 to the 1st respondent- authority seeking approval for establishment an Engineering college exclusively for women. On such application, approval was accorded by the 1st respondent-authority with intake capacity of 300 seats. As per the applicable Statutory Regulations framed under the AICTE Act, during the academic year 2008-09, the norms with regard to extent of land required and corpus fund to be deposited, were as under: Land : Ac.10 in rural areas Corpus Fund : Rs.35 lakhs A concession of 50% of required land and 20% of the corpus fund was notified to the applicants, who intend to establish exclusive colleges for women. In view of the said notified concessions, the petitioners were required to own and possess an extent of 5 acres of land and to deposit an amount of Rs.28 lakhs (80% of Rs.35 lakhs) to establish the 2nd petitioner-college in the rural area. On compliance of requirements, permission was granted with an intake capacity of 300 seats. Consequently, the 2nd petitioner-institute was granted affiliation by the University and permission by the 1st respondent-Council and started functioning from the academic year 2008-09. With the same intake capacity, approval was renewed for the 2nd academic year 2009-10. However, for the academic year 2010-11, approval was granted with the enhanced capacity of 360 seats. For the academic year 2011-12, the norms notified by the 1st respondent are same as in 2008-09, but the corpus fund is enhanced to Rs.90 Lakhs. The 1st respondent has issued notification on 24th of December 2010, requiring the intending applicants to make applications for grant of approvals for new colleges, including the conversion of the existing women’s colleges into co-education colleges. The last date for receipt of applications was 28th February 2011. It is the case of the petitioners that due to policy deficiencies, many of the rural Engineering colleges have become unviable for want of adequate fee structure and diminishing student response. The petitioners have given the particulars of academic year-wise intake capacity, total number of admissions and percentage of admissions, as under : Sl. No. Academic year Total sanctioned intake Total No.of Admissions Percentage of Admissions 1 2008-09 300 253 84.33 2 2009-10 300 166 55.33 3 2010-11 360 138 38.33 The 1st respondent-Council has notified the norms and standards to consider the applications for grant of approval for new colleges and also for conversion of existing women’s colleges into co-education colleges. As per Appendix 18, issued by the All India Council for Technical Education, the requirements for the purpose of conversion of a women’s college into a co-education institute, read as under : “Appendix 18. Clause 18.7 : Additional documents required while seeking approval for conversion of women’s institute into co-education institute: 1. A certificate stating that less than 40% admissions for three consecutive years issued by competent admission authority. 2. A certificate stating the actual enrolment of students for the last three consecutive years, issued by the Registrar of the affiliating University. 3. Resolution of the Trust/Society/Board of Governors for the conversion from women’s institution to co-education. 4. NOC of the State Government. 5. NOC of the affiliating Univesity. 6. Money to be deposited as per the Regulations in lieu of return of the existing FDR if any as provided for in clause 6.3A, 6.4, 6.5 of Chapter-I. 7. Land related documents to be submitted as per the Regulations.” As the 2nd petitioner-institute was not fulfilling the aforesaid criteria for conversion from women’s college to co-education institute, it has submitted a representation to the 1st respondent, seeking relaxation of certain conditions. The 2nd petitioner, in its representation, has sought for relaxation of condition of requirement of production of certificate stating that admissions were below 40% in the last three academic years and it also made a request to apply the corpus fund norms which were notified during 2008-09, as much as it is an existing institution. It has also made a request for relaxation of the requirement of possessing 10 acres of land, as the 2nd petitioner- institute is granted approval for relaxation of 5 acres when it was granted approval during the academic year 2008-09. At the stage of admission, in view of pendency of the representation of the 2nd petitioner-institute, this Court granted directions to consider such representation and take appropriate decision on the same. Pursuant to the interim directions of this Court, the 1st respondent-Council has considered the same and the request of the petitioner is rejected vide proceedings, dated 11th March 2011, a copy of which, is placed on record. It is stated that the said policy is notified by the 1st respondent-Council, to promote technical education among Indian women in the conservative Indian society, who are lagging behind in technical education due to various reasons like conservative Indian Society, where parents are still reluctant to send their daughters to co-education colleges, and in view of the said policy, the petitioner was granted approval by giving concessions in terms of the land requirement, fixed deposit, corpus fund etc., as such, there are no acceptable reasons in the application filed by the petitioners for relaxation of conditions. In the said proceedings, it is stated that any relaxation of such norms would affect the Indian women and deprive them of technical education. When the matter is taken up for hearing, it is submitted by the learned counsel for petitioners Sri S.Sri Ram that with regard to land requirement, the petitioners have already acquired the remaining 5 acres of land and the Council has also accepted the request of petitioners to apply the corpus fund as existing at the time of grant of approval to their college, as such, they are not insisting any adjudication on such issues and confined the relief only to the extent of requirement of producing certification showing less than 40% student strength in the last three academic years. As averred in the affidavit, it is the case of petitioners that though they have taken approval to run an exclusive women college by availing concessions, most of the women are preferring co-education colleges and not opting the exclusive women’s colleges, for the purpose of technical education. It is submitted that while it is open for petitioners to make an application for conversion of exclusive women’s colleges to co-education colleges, but the condition imposed, insisting for certification showing less than 40% admissions in the last three consecutive academic years from the competent authority, is illegal and there is no rational nexus with the object sought to be achieved. It is submitted that from the academic year 2008-09 onwards, the percentage of admissions are falling down and admissions in the academic year 2010-11 are less than 40%. It is the case of the petitioners that the pre-condition of less than 40% strength of approved intake in the last 3 academic years can be directory but not mandatory. Such restriction imposed in the norms notified by respondents is unreasonable restriction, which offends the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. A detailed counter affidavit is filed by the Southern Regional Officer of the All India Council for Technical Education. In the counter, it is stated that the 1st respondent-Council is a Statutory body constituted under Act 52 of 1987 and it is constituted for proper planning and guaranteed development of technical education system throughout the country. It is stated that the petitioners have got the approval to start a technical institution exclusively for women during the academic year 2008-09 after obtaining concessions with regard to land requirement, corpus fund and other requirements, and now, they want to convert such college into co-education college, without complying with the norms notified by the Statutory body. It is further stated that the applicants, who are seeking approval to start exclusive women’s colleges, were given relaxation of conditions of land requirement, corpus fund and many other aspects, only to promote technical education among women in the country and to enhance the percentage of women in higher and technical education. It is stated that the 1st respondent-All India Council for Technical Education has evolved norms under Clause 18.7 for conversion of exclusive women’s technical education institutions into co-educational institutions, only under limited circumstances, and the said conditions have intelligible differentia and reasonable nexus to the object sought to be achieved. It is stated that if such conditions are not met, they have to continue as exclusive women’s institutions. While denying the various allegations made by the petitioners, it is stated that the norms notified are reasonable restrictions and it is a policy decision taken by the competent authority, which is empowered under the AICTE Act, to promote technical education in the country. It is stated that the imposition of such condition, which is notified as a norm for conversion of Women’s Engineering College into co-education college, cannot be termed as an unreasonable restriction and as much as the same is a norm, which is part of the policy notified by the 1st respondent-Council, petitioner cannot question the same in this writ petition, seeking judicial review of such conditions. Further, averments are also made in the counter with regard to land requirement and also corpus fund, but as the petitioners are not pressing for such relief, it is not necessary to record such averments regarding corpus fund and land requirements. It is stated that as the 2nd petitioner-institute has got more than 40% admissions in the last three academic years, it has got no legal right to seek for conversion from exclusive women’s college to a co-education Engineering college. Heard Sri S.Sri Ram, learned counsel for petitioners and Sri K.Ramakanth Reddy, learned counsel appearing for the 1st respondent-All India Council for Technical Education, the learned Government Pleader appearing for 2nd respondent, and Sri K.Ratangapani Reddy, learned counsel appearing for the 3rd respondent-University. In this writ petition, it is contended by Sri S.Sri Ram, learned counsel for petitioners that the petitioners have bonafidely applied for grant of approval during the Academic Year 2008-09, to start technical institution exclusively for women, which was granted with an intake capacity of 300 seats. It is submitted that as most of the girl students are opting for co-education colleges, the 2nd petitioner- institution is not able to meet the economic viability, so as to continue the institution as an exclusive women’s college. It is submitted that the 2nd petitioner-institution is ready to make good the deficiency of land to the extent of 5 acres, but in view of the impugned norms notified under Clause 18.7, the application of the petitioner is sought to be rejected. It is submitted that as the facts and figures shows the falling strength in the 2nd petitioner-institution, the requirement of producing certification showing less than 40% strength for more than three academic years is an unreasonable restriction and it offends the rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. In support of his argument, the learned counsel for petitioners has relied on the judgments in the cases of State of Rajasthan Vs. Sevanivatra Karamchari Hitkari Samiti[1], Delhi Development Authority Vs. Joint Action Committee, Allottee of SFS Flats[2], State of Tamil Nadu Vs. Adhiyaman Educational and Research Institute[3], Sanjay Singh Vs. U.P.Public Service Commission[4], Om Kumar Vs. Union of India[5], State of Bihar Vs. Project Uchcha Vidya Sikshak Sangh[6] and in P.M.Bhargava Vs. University Grants Commission[7]. While relying on the aforesaid judgments, it is submitted by the learned counsel for petitioners that even if it is a policy decision of the 1st respondent-Council, as the same will not stand to the scrutiny of reasonable restriction, the same is liable to be struck down by this Court. On the other hand, Sri K.Ramakanth Reddy, learned counsel appearing for the 1st respondent-Council would contend that the petitioners, having obtained approval by availing concessions notified for establishment of an exclusive women’s college during the year 2008-09, have no right to seek for conversion without complying with the norms notified by the 1st respondent Statutory body. It is submitted by the learned counsel that the 1st respondent is a body constituted under the Act and it comprises of experts in the field of technical education and when they have taken the policy decision to impose such norms to consider the applications for conversion of exclusive women’s colleges into co-education colleges, the petitioners, who have not complied with such conditions, cannot seek either for relaxation of such norms or can question the same on the ground that they are unreasonable restrictions. It is submitted that as the exclusive women’s colleges were promoted by giving incentives to promote technical education among women, and when the 1st respondent-Statutory authority has notified certain norms to consider for conversion, without complying with such norms, the petitioners have got no right to seek for conversion. It is submitted that as the said restrictions are reasonable restrictions notified by the competent authority, it cannot be said that they are either unreasonable or such norms are notified without any intelligible differentia to achieve the objectives under the AICTE Act. The learned counsel, in support of his argument, has relied on the judgment in the case of All India Council for Technical Education Vs. Surinder Kumar Dhawan[8]. It is submitted that the 1st respondent-council is an expert body in the field of technical education, as such, the petitioner cannot seek for judicial review of the matter, to substitute the views expressed by the professional technical bodies. In this case, to consider the rival submissions made by the learned counsel for the parties, at the outset, it is to be noticed that the All India Council for Technical Education Act of 1987 is an Act of Parliament, which is mainly intended to provide for establishment of an All India Council for Technical Education, with a view to proper planning and coordinated development of technical education system in the country. The 1st respondent-Council is constituted under Section 3 of the said Act and the composition of the Council is covered by Section 3(4) of the Act. The powers and functions of the Council are enumerated under Chapter III and one of the functions entrusted to the Council under Section 10(e) of the Act is to formulate schemes for promoting technical education for women. In this case, it is to be noticed that when the petitioners have sought for approval to start an Engineering college exclusively for women in the academic year 2008-09, as per the norms notified to establish rural Engineering colleges, the requirements were to possess an extent of 10 acres of land to start the college and the corpus fund notified during the relevant year was at Rs.35 lakhs. However, incentives were notified for the applicants, who wanted approval for exclusively women’s colleges. So far as the women’s colleges in the rural areas are concerned, they are given concession of 50% of the land area and 20% in the corpus fund. By availing said concessions, petitioners had started the college by possessing 5 acres of land instead of 10 acres, which was required in ordinary course and by depositing an amount of Rs.28 lakhs by availing the concession of corpus fund, instead of Rs.35 lakhs, which was otherwise provided. From the said academic year, 2nd petitioner had been running the college, and though it is stated that as much as during the academic year 2010-11, the student strength fell to less than 40%, it is not meeting the viability norms to run the college, at the same time, it is to be noticed that the condition, which is imposed in the norms under Clause 18.7 is a norm notified by the Council which consists of expert persons in the field of technical education. When concessions were notified for establishing exclusive women’s college, keeping in mind the conservative Indian Society, where parents are still reluctant to send their daughters to co-education colleges, although it is contended by the learned counsel for petitioners that most of the girl students are opting for co-education colleges, in the absence of facts and figures, it is not for this Court to sit over the opinion expressed by the All India Counsel for Technical Education, a body, which is exclusively constituted under Section 3 of the AICTE Act, with an abode intention of promoting technical education in the country. In the absence of making available any material demonstrating that the strength secured in the 2nd petitioner-college is not sufficient to meet the viability norms, it is not possible for this Court to go into the arena of policy decision notified by the competent body, which comprises of the members, who are experts in the field of technical education. The petitioners, who started the college exclusively for women by availing concessions with regard to land, corpus fund etc., have no legal right to seek for conversion automatically. When the competent body has notified the norms requiring such applicants to produce certification from the admission authority showing less than 40% of strength for the last three academic years, it cannot be said that such requirement is either illegal or unreasonable, offending Articles 14 and 19(1)(g) of the Constitution of India. The petitioners may have a right to seek for considering an application to establish a college, but once a college is established to run with women students exclusively by availing concessions, it has no right to seek for conversion on its own, without meeting the required criteria notified by the competent authority. Though it is contended by the learned counsel for petitioners that the said condition imposed is unreasonable and had no nexus with the object sought to be achieved, such contention cannot be accepted. When the petitioners have availed concessions and started an exclusive Women’s college, imposition of restrictions by the competent authority for considering the application for conversion from exclusive women’s college to co-education college, cannot be termed as either unreasonable or illegal. It appears, such conditions are imposed to assess the strength in the exclusive women’s colleges for a reasonable period of three years, so as to consider the applications for conversion. Merely because for one year the student strength has fallen below 40%, that by itself, cannot be the ground to seek for conversion from women’s college to a co- education college, as such, the condition to produce certificate showing less than 40% admissions for last three years, cannot be termed as unreasonable restriction so as to offend the right of petitioners either under Article 14 or Article 19(1)(g) of the Constitution of India. Though the learned counsel has relied on several judgments referred above, this Court is of the view that the said judgments would not render any assistance in support of his argument in the present case. In the case of State of Rajasthan (1 supra), while considering the family pension scheme notified under Rajasthan Service Rules, the Apex Court has held that the wisdom in a policy decision of the Government is not justiciable unless such policy decision is wholly capricious, arbitrary and whimsical thereby offending the Rule of law enshrined in Article 14 of the Constitution. In the case of Delhi Developoment Authority (2 supra), while examining the scope of judicial review vis-à-vis the policies, the Hon’ble Supreme Court has held that an executive order termed as a policy decision is not beyond the pale of judicial review. In the said judgment, it is held that the superior Courts may not interfere with the nitty-gitty of the policy, or substitute one by the other but it will not be correct to contend that the Court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. In the said judgment, it is further held that interference therewith on the part of the superior Court would not be without jurisdiction as it is subject to judicial review. While examining the scope of interference in the policy decision, the Apex Court said, broadly, a policy decision is subject to judicial review on the following grounds: (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegate has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy. In the case of State of Tamil Nadu (3 supra), while interpreting the word “Coordination” used in the provisions of the All India Council for Technical Education Act, 1987, the Hon’ble Supreme Court has held that it includes the legislation on all matters necessary to prevent those factors which would make coordination difficult or impossible. In the case of Sanjay Singh (4 supra), the Hon’ble Supreme Court has held in para 50 as under : “50. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts. State of U.P. v. Renusagar Power Co. 988 (4) SCC 59, Tata Iron & Steel Co. Ltd. V. Union f India 1996 (9) SCC 709, Federation of Rly. Officers Assn. v. Union of India 2003(4) SCC 289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail.”