WP(C) No. 2752/2008 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) No.2752/2008 & CM No.5294/2008 % Date of Decision: 22.07.2008 Aditya Institute of Technology ..... Petitioner Through: Mr. Aseem Mehrotra, Adv. versus Govt. of Delhi & Anr. ..... Respondent Through: Mr. V.K. Tandon, Adv. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes VIPIN SANGHI, J. (Oral) 1. The petitioner has filed this petition to seek a writ directing respondent No.1, i.e., the Government of NCT of Delhi to include the name of the petitioner institute in the information bulleting for the year 2008-2009 and to further direct the Chief Admission Officer, CET-2008 to make admissions in the petitioner college in the light of extension of approval granted by the All India Council for Technical Education (AICTE), i.e. respondent No.2 vide letter dated 5.3.2008 for the academic session 2008-2009. 2. The petitioner institute is run by Dr. R.N. Gupta Technical Education Society which is registered under the Societies Registration Act. The petitioner claims to be running technical colleges all over the country. Technical education falls within the domain of AICTE constituted under All India Council for Technical WP(C) No. 2752/2008 Page 2 of 25 Education Act, 1987. The controversy in this petition pertains to four diploma courses being run by the petitioner institute since 1995-96, viz., Diploma in Computer Engineering, Diploma in Electronics and Communication Engineering, Diploma in Medical Lab Technology and Diploma in Pharmacy. 3. The petitioner states that vide letter dated 30.7.2007 respondent No.2 granted extension of approval to the petitioner institute for making admission for the academic session 2007-2008. However, the petitioner was unable to admit students to the said courses on account of the fact that admission process had already been closed by then. The petitioner approached this court by filing WP(C) No.6536/2007 which was dismissed for the aforesaid reason. The Supreme Court also dismissed the Special Leave Petition filed by the petitioner. 4. For the current year i.e. 2008-09 the AICTE sent an Expert Committee of the North Western Regional Committee to inspect the petitioner institute. This committee consisted of Dr. Krishan Gopal, Executive Director National Institute of Technology, Kurushetra, Dr. Kharid Mohammad Professor and Head, Department of Civil Engineering, Jamia Milia, Delhi, Dr. B. Roy Chaydhary, Professor and Head, Department of Electronics, Delhi College of Engineering, Delhi and Shriom Dalal, Regional Officer, North Western Regional Office, AICTE as a convenor of the Committee. Based on the inspection report of the said Committee, respondent No.2 issued the communication dated 5.3.2008 granting extension of approval to the petitioner institute for the aforesaid four courses with maximum intake of 40 students in each course for the academic session 2008-2009. WP(C) No. 2752/2008 Page 3 of 25 5. The grievance of the petitioner is that despite the aforesaid approval to extension granted by the AICTE for the second consecutive year, the respondent No.1 is acting arbitrarily by not including the name of the petitioner institute as one of the institutes offering the said courses and by keeping the petitioner out of the admission process undertaken on the basis of CET, 2008. The petitioner relies on the decisions of the Supreme Court in State of TN & Anr. v. Adhiyaman Education and Research Institute and Ors. (1995) 4 SCC 104 and Jaya Gokul Educational Trust V. Commissioner & Secretary to government High Education Dept. Thiruvananthapuram & Anr., AIR 2000 SC 1614 and State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors, JT 2006(4) SC 201 to submit that respondent No.1 has no authority or jurisdiction to disregard the approval granted by AICTE after due inspection by them of the petitioners institute. He submits that the respondent No.1 is being unreasonable and is bent upon somehow preventing the petitioner from running the said courses for the academic session 2008-09 by encroaching upon the authority of AICTE and disregarding the approval granted by them. 6. Learned counsel for respondent No.1, Mr. V.K. Tandon, opposes the petition primarily on the ground that the petitioner institute is not permitting it to carry out inspection of its institutional facilities and for this reason the request of the petitioner cannot be entertained. It is submitted that the inspection team of respondent No.1 has repeatedly tried to visit the petitioner’s institute but on each occasion the petitioner has denied inspection to the said committee. Mr. Tandon submits that extension of approval letter WP(C) No. 2752/2008 Page 4 of 25 issued to the petitioner states that the “……..observations and specific conditions (if any) of the Expert Committee are annexed to this letter. The Institution shall fulfill all the conditions without any delay. Non fulfillment shall lead to withdrawal of approval”. The approval letter further states “It may please be noted that AICTE had issued interim policy regulations, which has been notified in the Gazette of India on November 28, 2005. All the provisions contained in the interim policy regulations shall be applicable for all the AICTE approved institutions.” 7. Mr. Tandon also relies on the following extract from the said letter. “Copy to 1.The Director, Technical Education Deptt., Govt of NCT, Muni Maya Ram Marg, near TV tower, Pitampura, New Delhi. He is requested to closely monitor the compliance of Norms and Standards stipulated by the Council and keep this Regional Office and the AICTE informed of the same. 2. The Principal Aditya Institute of Technology, 107/9 Kishan Garh, Vasant Kunj, New Delhi A request to fulfill the deficiencies as annexed (if any) to this letter and submit the compliance by the start of the session to this Regional office.” 8. The submission of Mr. Tandon is that for the purpose of mandatory compliance of the norms and standards stipulated by the AICTE and to keep the North Western Regional Committee of AICTE informed of the same, it is necessary for respondent No.1 to conduct the inspection which has been denied by the petitioner. He submits that similar inspection has been conducted by respondent No.1 for various other institutes. Mr. Tandon also relies on the revised norms and standards and approval process for diploma level technical institute circulated by AICTE on 18.9.2007. A copy of this WP(C) No. 2752/2008 Page 5 of 25 communication has been placed on record by Mr. Tandon. He emphasizes that in paragraph 4 of this communication the AICTE has laid down that “The Applicant Institution to whom Letter of Intent was issued will submit necessary documents for grant of Letter of Approval to the concerned Director of Technical Education of the concerned State Govt./U.T. based on which the Director of Technical Education will arrange an Expert committee visit to verify the facilities created by the applicant institution”. The submission of Mr. Tandon then is that from the aforesaid, it cannot be said that a clear approval has been granted to the petitioner. Mr. Tandon specifically refers to the communication dated 6.6.2008 written by respondent No.1 to respondent No.2 containing the recommendations of the State level committee for the academic session 2008-2009 in respect of the various technical institutes including that of the petitioner. He submits that the State level inspection committee has not recommended the inclusion of petitioner institute in the “admission category” since the same was found closed. Mr. Tandon further states that vide communication dated 20.6.2008 as well, the petitioner was required to grant inspection to the State level inspection committee on 25.6.2008 at 10 a.m. However, even on that occasion the same was denied. 9. Respondent no.2, AICTE has filed a short counter affidavit. Pertinently, respondent No.2 does not say anything in its counter affidavit to support the impugned action of respondent No.1 for the reasons disclosed by respondent No.1. The stand taken by respondent no.2 in its counter affidavit is that the petitioner institute is running in a rented accommodation and till date has not acquired its own land. Respondent no.2 had required all WP(C) No. 2752/2008 Page 6 of 25 educational institutions to shift their activities to their own premises vide notification dated 18.2.2005. It is further stated that the approval granted by respondent no.2 vide letter dated 5.3.2008 is subject to the petitioner filing a compliance report showing the removal of deficiencies mentioned in the extension of approval letter dated 5.3.2008. 10. Before proceeding further, I think it appropriate to deal with the stand of respondent no.2 at this stage itself. First and foremost, at the time of arguments, which were spread over two days, the counsel for respondent no.2 did not even appear to oppose the petition on the second day i.e. today. Secondly, as aforesaid, respondent No.2 does not sympathize with the respondent No.1 in its grievance that the petitioner is refusing inspection to the State level committee, and it does not support the decision of respondent No.1 for that reason. Thirdly, if the requirement of running the institute in its own premises was considered by AICTE of such importance as to deprive the petitioner of approval for the academic year 2008-09, it is not understood as to why in the first place, the approval was granted to the petitioner as late as on 5.3.2008. The petitioner has pointed out that the respondents have themselves not strictly enforced the said requirement of an institution running in its own premises or adhering to the norms with regard to the area that the institute should be possessed of to set up and run the institute. He refers to the information furnished by the Department of Training and Technical Education dated 10/11.4.2008 in response to the queries raised under the Right to Information Act by one Tejvir Singh. It is pointed out that six of the seven institutes who have been granted WP(C) No. 2752/2008 Page 7 of 25 approval by respondent No.2, and who are a part of the admission process of respondent No.1 do not meet the norms with regard to the institute being run on institutional land of an area of 1.5 acres (which was earlier 4 acres and now stands reduced to 1.5 acres). The details of these seven institutes are as follows: S. No. Name of the Polytechnic Status of land 1. Chhotu Ram Rural Institute of Technology Kanjhawala (Ghevra), Delhi-110041 12 acres, Agricultural Land 2. Father Agnel Polytechnic Gautam Nagar (Opp. Neeti Bagh), New Delhi-110049. 1 acre, Earmarked for polytechnic from school land of 3 acres 3. Guru Tegh Bahadur Polytechnic (G.H.P.S. Premises), Poorvi Marg, Vasant Vihar, New Delhi-110057. 2 acres, Earmarked for polytechnic out of 8 acres school land 4. International Polytechnic for Women 171A, Khirki Extension, Malviya Nagar, New Delhi-17. 0.5 acres, Laldora 5. Marathwara Institute of Technology Mundka, New Delhi-110040. Temporary site, School building/ Laldora land 6. Rao Tula Ram Polytechnic Rao Tula Ram Marg, New Delhi- 110021. 4 acres, Institutional land 7. Subramaniam Bharati College of Science & Technology Holambi Khurd, Delhi-110082. 0.5 acres, Laldora land 11. It is also pertinent to note that the categorical stand of the petitioner that in the approval letter dated 5.3.2008, absolutely no conditions or deficiencies had been pointed out and, therefore, there is no further compliance required of the petitioner, has remained uncontroverted by respondent no.1 and respondent no.2. 12. From the aforesaid it appears that the requirement of the institute running on its own land allotted on institutional basis has not been made strictly applicable by respondent no.2 and there is no reason to discriminate against the petitioner when at least six WP(C) No. 2752/2008 Page 8 of 25 other institutions, who are not satisfying the said norms are being permitted to run the technical courses year after year. It appears that the Inspection Committee of respondent no.2 was conscious of the aforesaid position while issuing the approval letter dated 5.3.2008, else, either the approval letter would not have been issued or a specific condition would have been laid down by respondent no.2 in that regard before the approval letter took effect. The current is the second successive year when approval has been granted to the petitioner by the respondent no.2 even though the petitioner has continued to run the institute from rented accommodation. Though it is not necessary for me at this stage to go into this issue any further, it may also be noted that the learned counsel for the petitioner during the course of his arguments stated that it had already applied for allotment of institutional land for running its institute to the DDA which enjoys a monopoly status in Delhi for allotment of institutional lands, and that the said issue is also pending before this Court in a separate writ petition. 13. In Adhiyaman Educational and Research Institute (supra), the Supreme Court was dealing with the issue relating to the conflict between the powers and functions of AICTE on the one hand and a state legislation, namely, Tamil Nadu Private College (Regulation) Act on the other hand. The Supreme Court in paras 22, 27 and 30 of the said decision held as follows:- “22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the WP(C) No. 2752/2008 Page 9 of 25 technical education system. The Council is, further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to derecognize the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well-known, consists of regions and population which are at different levels of progress and development or to put it differently, at differing levels of backwardness. This is not on account of any physical or intellectual deficiencies but for want of opportunities to develop and contribute to the total good of the country. Unnecessarily high norms or standards, say for admission to the educational institutions or to pass the examinations, may not only deprive a vast majority of the people of the benefit of the education and the qualification, but would also result in concentrating technical education in the hands of the affluent and elite few and in depriving the country of a large number of otherwise deserving technical personnel. It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further WP(C) No. 2752/2008 Page 10 of 25 necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the Constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the States and the professional bodies on it which have also representation from different States and regions, they have a say in the Constitution and functions of these Committees as well. What is further important to note is the subject covered by this statute is fairly within the scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations along with other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before the Parliament. Hence, on the subjects covered by this statute, the State could not make a law under Entry 11 of List II prior to Forty-Second Amendment nor can it make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution. 27. The provisions of the State Act enumerated above show that if it is made applicable to the technical institutions, it will overlap and will be in conflict with the provisions of the Central Act in various areas and, in particular, in the matter of allocation and disbursal of grants, formulation of schemes for initial and in-service training of teachers and continuing education of teachers, laying down norms and standards for courses, physical and institutional facilities, staff pattern, staff qualifications, quality instruction assessment and examinations, fixing norms and guidelines for charging tuition and other fees, granting approval for starting new technical institutions and for introduction of new courses or programmes, taking steps to prevent commercialisation of technical education, inspection of technical institutions, withholding or discontinuing grants in respect of courses and taking such other steps as may be necessary for ensuring the compliance of the directions of the Council, declaring technical institutions WP(C) No. 2752/2008 Page 11 of 25 at various levels and types fit to receive grants, the Constitution of the Council and its executive Committee and the Regional Committees to carry out the functions under the Central Act, the compliance by the Council of the directions issued by the Central Government on questions of policy etc. which matters are covered by the Central Act. What is further, the primary object of the Central Act, as discussed earlier, is to provide for the establishment of an All India Council for Technical Education with a view, among others, to plan and coordinate the development of technical education system throughput the country and to promote the qualitative improvement of such education and to regulate and properly maintain the norms and standards in the technical education system which is a subject within the exclusive legislative field of the Central Government as is clear from Entry 66 of the Union List in the Seventh Schedule. All the other provisions of the Act have been made in furtherance of the said objectives. They can also be deemed to have been enacted under Entry 25 of List III. This being so the provisions of the State Act which impinge upon the provisions of the Central Act are void and, therefore, unenforceable. It is for these reasons that the appointment of the High Power Committee by the State Government to inspect the respondent-Trust was void as has been rightly held by the High Court. 30. 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 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 WP(C) No. 2752/2008 Page 12 of 25 recognition or derecognition 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 the Parliament under Entry 66 of the List I to 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 operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act.” (emphasis supplied) 14. In Jaya Gokul Educational Trust (supra), the appellant was desirous of establishing a self financing engineering college and submitted its application to the University of Kerala as well as to the AICTE. An inspection team of the university recommended favorably the case of the appellant. AICTE also granted conditional approval for establishment of engineering and technical college. The appellant applied to the State Government for grant of its permission, which was refused by the Government. The same was challenged before the Court. The Supreme Court relied upon Adhiyaman Educational and Research Institute (supra) and in paras 22 and 23 of the said judgment