W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 1 of 30 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13th August, 2010 + W.P.(C) No.4771/2010 % GITARATTAN INSTITUTE OF ADVANCED STUDIES & TRAINING ..... PETITIONER Through: Mr. R.K. Saini & Mr. Sitab Ali Chaudhary, Advocates Versus DIRECTOR HIGHER EDUCATION & ANR. ..... RESPONDENTS Through: Ms. Sana Ansari, Advocate for Ms. Zubeda Begum, Advocate for R-1. Mr. Mukul Talwar, Advocate for R-2. Mr. Ayushya Kumar, Advocate for R-3. AND + W.P.(C) 5244/2010 SURAJMAL MEMORIAL EDUCATION SOCIETY (REGD.) ..... PETITIONER Through: Mr. Naresh Kaushik with Ms. Amita Kalkal Chaudhary & Mr. Aditya Vikram, Advocates Versus ALL INDIA COUNCIL FOR TECHNICAL EDUCATION & ORS ..... RESPONDENTS Through: Mr. Mayank Manish, Advocate for Mr. Amitesh Kumar, Advocate for R-1. Mr. Mukul Talwar & Mr. Sradhananda Mohapatra, Advocates for R-2. Ms. Sana Ansari, Advocate for Ms. Zubeda Begum, Advocate for R-3. AND W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 2 of 30 + W.P.(C) 5404/2010 PRADEEP MEMORIAL COMPREHENSIVE COLLEGE OF EDUCATION & ANR ..... PETITIONER Through: Mr. R.K. Saini & Mr. Sitab Ali Chaudhary, Advocates Versus GGSIP UNIVERSITY & ORS ..... RESPONDENTS Through: Mr. Mukul Talwar, Advocate for R-1. Mr. Ayushya Kumar & Ms. Aruna Tiku, Advocates for R-3. AND + W.P.(C) 5415/2010 GITARATTAN INTERNATIONAL BUSINESS SCHOOL & ANR ..... PETITIONERS Through: Mr. R.K. Saini & Mr. Sitab Ali Chaudhary, Advocates. Versus GGSIP UNIVERSITY & ORS. ..... RESPONDENTS Through: Mr. Mukul Talwar, Advocate for R-1. Mr. Rajiv Nanda & Ms. Rachna Saxena, Advocates for R-2. Mr. Mayank Manish, Advocate for Mr. Amitesh Kumar, Advocate for R-3. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? RAJIV SAHAI ENDLAW, J. 1. All these petitions are directed against the refusal of the Guru Gobind Singh Indraprastha University (hereinafter called the University) to grant W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 3 of 30 affiliation to the petitioners inspite of the petitioner in each of the cases having been granted recognition either by the All India Council for Technical Education (AICTE) or by the National Council for Teacher Education (NCTE) with respect to the courses for which affiliation is sought. It is the contention of the counsel for the petitioner in each of the cases that upon recognition by AICTE or NCTE, the University is left with no choice in the matter of grant of affiliation and is bound to grant such affiliation. Before considering the legal aspect, it is deemed expedient to narrate the factual controversy in each of the cases. WP(C) No.4771/2010 2. The petitioner has been imparting education in B.Ed. programme; as per the NCTE Act, 1993, only the Institutes running B.Ed. programme are eligible to offer M.Ed. course; the petitioner applied to NCTE for recognition for imparting education in M.Ed. course from the same campus from where the B.Ed. course was being conducted; the NCTE on 6th July, 2004 granted such recognition to the petitioner for M.Ed. course. The petitioner further pleads that even prior thereto, the respondent no.1 Directorate of Higher Education, Govt. of NCT of Delhi had on 30th December, 2000 granted a “No Objection” to the petitioner for M.Ed. course. It is the case of the petitioner that it had written to the University on 19th August, 2002 enquiring the curriculum for M.Ed. course; that the University on 28th December, 2002 forwarded to the petitioner the Syllabus W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 4 of 30 & Examination Scheme for M.Ed. course with a copy to the Northern Regional Committee (NRC) of the NCTE. The petitioner on grant of recognition by NCTE on 6th July, 2004, approached the University for affiliation for M.Ed. course; on 10th April, 2008 another application for affiliation was made to the University; that on 16th February, 2009 a third application for affiliation for M.Ed. course was made. The University finally on 23rd March, 2009 informed the petitioner that its request for affiliation for the current academic year could not be considered and the matter had been referred to the Directorate of Higher Education, Govt. of NCT of Delhi. The Directorate of Higher Education, Govt. of NCT of Delhi on 2nd April, 2009 refused “No Objection Certificate” to the petitioner for M.Ed. course on the ground that as per existing policy guidelines, B.Ed. / M.Ed. courses could be allowed to run in school buildings or complex constructed on land admeasuring at least 2.5 acres situated in a conforming area and which requirement is not fulfilled by the petitioner. 3. On 9th April, 2009, the University informed the petitioner that the High Powered Committee of Experts constituted by the University had not recommended M.Ed. programme at affiliated Institutions. The petitioner continued to correspond with the respondents. The petitioner ultimately on 16th April, 2010, applied for affiliation for M.Ed. course for the fourth time. The said application of the petitioner was however returned pointing out certain deficiencies therein. The petitioner claims to have rectified the W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 5 of 30 deficiencies. However, the petitioner was again informed that M.Ed. programme was presently being offered by the University School of Education only and not in any of the affiliated Institutes / Colleges and asking the petitioner to submit an undertaking that if its request was considered further by the University, it shall be bound by the said decision of the University. The petitioner then filed this petition for issuance of mandamus directing the University to grant affiliation and for quashing of the letters aforesaid of the Directorate of Higher Education, Govt. of NCT of Delhi and the University refusing “No Objection Certificate” and affiliation respectively to the petitioner. Notice of the petition was issued but the application of the petitioner for interim relief was dismissed. NCTE was subsequently added as a respondent in the petition. WP(C) No.5244/2010 4. The petitioner has been imparting education in some Degree Courses after obtaining approval from the respondent no.1 AICTE. The AICTE for the period 2008-10 approved intake of 360 students in the College of the petitioner in various courses; the AICTE in the year 2008 issued notification / advertisement inviting applications for running second shift in the existing technical institutions; the petitioner applied to AICTE for approval for running the second shift with 180 seats, being 50% of the 360 seats approved in the first shift. AICTE vide its letter dated 30th June, 2009 approved intake of 120 students only in the second shift in the courses of W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 6 of 30 Computer Science & Engineering and in Information Technology with 60 seats in each; the University also granted affiliation for second shift with 120 seats. The petitioner in 2010-11 sought approval from AICTE for 360 seats in first shift and 180 seats in the second shift and which was approved on 13th July, 2010. The petitioner on 19th July, 2010 applied to the University for affiliation for current year with seats aforesaid. The University and the Govt. of NCT of Delhi however approved intake of 240 seats in the first shift and 120 seats in the second shift. The petitioner preferred an appeal to the University and where after the University and the State on 2nd August, 2010 approved intake of 360 seats in the first shift (i.e. same as permitted by AICTE) but intake of only 120 seats in the second shift as against 180 permitted by AICTE. 5. The petitioner impugns the refusal of affiliation for 180 seats in the second shift as arbitrary. It is contended that once the infrastructure for 360 students is deemed sufficient for the first shift, there is no basis whatsoever for confining the intake in the second shift to 120 only instead of 180 as approved by AICTE. The petitioner thus seeks a writ commanding the University and the State to grant approval to the petitioner for 180 seats instead of 120 seats in the second shift. 6. Though no counter affidavit has been filed but the counsel for the University on the basis of the Minutes of the Forty Fifth (Emergent) Meeting of the Board of Affiliation of the University contended that the W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 7 of 30 built up area available with the petitioner is 9811 sq. mtrs. instead of 11232 sq. mtrs.; it is contended that as per AICTE handbook also the requirement is of 100% fulfilment of condition relating to built up area for approval of second shift; that though the petitioner was not entitled to affiliation for second shift for the current year but since the said discrepancy had not come to light in the previous year and the petitioner had been permitted to admit 360 students in the first shift and 120 students in the second shift, the same was decided to be continued for the current academic year also. It is stated that until the built up area is brought as per the norm, the petitioner cannot be permitted to enhance the strength of the second shift from 120 to 180 seats. WP(C) No.5404/2010 7. The petitioner has been recognized for B.Ed. programme by the NCTE since the year 2001 and has been affiliated to the University for the said programme. The NCTE on 29th October, 2009 granted recognition to the petitioner to run M.Ed. course of one year duration with annual intake of 25 students and subject to obtaining affiliation thereof; the petitioner applied to the University for affiliation for M.Ed. course for the academic session 2010-11. The University however following its policy aforesaid of imparting education in M.Ed. course from its own Institute only and not from any of its affiliates, declined. In the meanwhile, NCTE taking note of the acute shortage of trained Post Graduate Teachers (PGT) has allowed W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 8 of 30 enhancement of intake capacity of petitioner for M.Ed. course from 25 to 35 students with effect from the academic year 2010. The petitioner seeks mandamus against the University to grant affiliation to the petitioner for M.Ed. course. 8. Again, though no counter affidavit has been filed but the counsel for the University has contended that the university has valid reasons for not granting affiliation to any private Institute for M.Ed. course. It is contended that the University at present has no infrastructure to regulate the M.Ed. course and to hold examination therefor in the affiliated Colleges. Minutes of the Meeting of the University held on 1st April, 2009 are handed over in this regard. It is contended that the grant of affiliation is in the discretion of the University and no mandamus to exercise discretion in a particular manner can be issued. Reliance in this regard is placed on M/s Chingleput Bottlers Vs. Majestic Bottling Company AIR 1984 SC 1030. It is further stated that it is not as if University is discriminating against the petitioner; the affiliation for M.Ed. course is not being granted to any Institute. It is further stated that the affiliation is not being refused for all times to come but for this year only and if the University is able to regulate and build up infrastructure for M.Ed. course, the applications for affiliation in the coming years shall be considered. 9. The counsel for the petitioner has controverted by contending that the University having commenced the M.Ed. course itself now has a syllabus W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 9 of 30 for the M.Ed. course and the examinations are to be conducted by the respective Colleges and there is no basis for the University to refuse affiliation for M.Ed. course. It is also urged that the University has to act by Ordinances only and no Ordinance refusing affiliation has been issued. WP(C) No.5415/2010 10. The petitioner obtained recognition from AICTE for MBA course of two years duration with an intake of 60 students in the morning shift in the year 2004. Subsequently, the intake was permitted by AICTE to be increased to 120. The University has also affiliated the petitioner for the said course and the said affiliation has been continued from time to time. 11. The petitioner for the academic session 2010 applied to the University for increase in intake for the morning shift from 120 to 180 and also for starting a second shift. AICTE on 19th July, 2010 granted permission to the petitioner for increase of intake for the morning shift from 120 to 180 and also to start the second shift with an intake of 60 students. The petitioner approached the University for affiliation accordingly. Upon the University failing to respond, the present petition has been filed. 12. The counsel for the petitioner has contended that AICTE before granting approval also seeks the approval of the University and if the University has any objection, it ought to object then and cannot now have any ground for objection. W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 10 of 30 13. Again though no counter affidavit has been filed but the counsel for the University has informed that prayer of the petitioner for increase of seats from 120 to 180 is under consideration. It was however informed that the application for affiliation for a second shift with an intake of 60 students has been rejected for the reason of MBA being a full time course and being not permitted to be done as a part time second shift course. 14. The counsel for the petitioner rejoins by contending that it is for the AICTE to determine whether two shifts of MBA programme are to be permitted or not and the University cannot sit in judgment over the decision of the AICTE. 15. The counsels for the petitioners have based their cases on the following judgments: (i) State of Tamil Nadu Vs. Adhiyaman Educational & Research Institute 1995 (4) SCC 104. (ii) Jaya Gokul Educational Trust Vs. Commissioner & Secretary, Higher Education Department, Kerala (2000) 5 SCC 231. (iii) State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (2006) 9 SCC 1. (iv) Judgment dated 21st July, 2008 of this Court in WP(C) No.4244/2008 titled Trinity Institute of Higher Education Vs. W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 11 of 30 Govt. of NCT of Delhi and appeal of the University where- against being LPA No.542/2008 is informed to have been withdrawn. 16. Per contra, the counsel for the University relies on the full bench judgment of the Madras High Court in Rukmani College of Education Vs. State of Tamil Nadu AIR 2008 Madras 127 holding that if the University were to be held to be bound to grant affiliation even if a particular Institution does not conform to the standards or does not meet the requirements of the Act, Statutes, Ordinances and Regulations of the University, it may have the effect of destroying the very autonomy of the University. It was held that NCTE and AICTE constituted under Central Statutes and the Universities constituted under local Statutes are required to act harmoniously. It was further held that the University is entitled to independently satisfy itself of the fulfilment of its criteria. 17. Though the petitions concern two different central bodies constituted for granting recognition for different courses i.e. AICTE and NCTE, governed by separate Statutes but the matters have nevertheless been taken up together, finding the issue involved to be same and to analyse the matter in the conspectus of myriad reasons for which a University may deny affiliation. 18. The University was established under the Guru Gobind Singh Indraprastha University Act, 1998 enacted by the Legislative Assembly of W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 12 of 30 NCT of Delhi. Section 4(2) of the said Act provides that no College or Institution situated within the jurisdiction of the University (i.e. the National Capital Region) shall be “compulsorily affiliated” to the University and “affiliation shall be granted by the University” only to such College or Institution as may agree to accept the Statutes and Ordinances of the University. Section 16 of the Act constitutes the “Board of Affiliation” as an authority of the University. Section 21 makes the said Board of Affiliation responsible for admitting Colleges and Institutions to privileges of the University. Section 28 empowers the authorities of the University (and of which Board of Affiliation is one) to make Regulations for conduct of their business. Statute 24 of the University relates to the conditions under which Colleges & Institutions may be admitted to the privileges of the University. One of such conditions is that it has been granted a No Objection Certificate by the concerned State Government and recognition by the appropriate statutory authority wherever applicable, for the subjects and courses of study for which affiliation is sought. Other conditions relate inter alia to i) suitable and adequate physical facilities in terms of space, accommodation, laboratories, workshops, equipments, library, furniture, infrastructural facilities etc; ii) existence of teachers and other employees having qualification and eligibility criteria and in such numbers as per norms laid down by the University; iii) the College / Institution agreeing not to admit students in excess of number permitted by the University, etc. Statute 24 further provides that it shall be open to the University to reject a W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 13 of 30 request for affiliation or to grant it in whole or in part mentioning subjects and courses of study and number of students to be admitted. The University is also required to inspect the College / Institution seeking affiliation and empowered to suspend and withdraw affiliation. 19. It will thus be seen that the Act under which the University has been established does not require the University to grant affiliation to College / Institution or courses recognized by statutory authorities as AICTE and NCTE automatically. Rather, wherever such recognition is applicable the same is but one of the conditions for affiliation. 20. The petitioners seek such automatic affiliation on the basis of judgments aforesaid relied by them. It thus has to be examined whether the said judgments lay down for automatic affiliation without the University, following the Act under which it is established and its Statutes. 21. The Supreme Court in Adhiyaman Educational & Research Institute (supra) held that in the case of Institutes imparting technical education, it is not the University Act but the Central Act (i.e. the AICTE Act, 1987) which will have jurisdiction; and to that extent the provisions of the University Act will be deemed to have become unenforceable. It was however held that the provisions of the University Act regarding affiliation 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 W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 14 of 30 norms and guidelines prescribed by AICTE in respect of matters entrusted to it under Section 10 of the AICTE Act. 22. Similarly, in Jaya Gokul Educational Trust (supra) also, the Supreme Court while holding that the University, for granting affiliation was not required to seek approval of the Government did not hold that the University should have granted affiliation but only held that the University ought to have considered the grant of affiliation on the basis of permission granted by AICTE and other relevant factors in the University Act or Statues which are not inconsistent with the AICTE Act or its Regulations. The Supreme Court disposed of the matter with the direction to the University in that case to so consider the application for affiliation. 23. The Supreme Court in Sant Dnyaneshwar (supra) was not concerned with the University Act, but nevertheless set aside the judgment of the High Court under challenge before it insofar as holding the provisions of the Maharashtra University Act with respect to grant of affiliation to be null and void. It was observed that the provisions of the Maharashtra University Act with respect to grant of affiliation would not apply to an Institution covered by the NCTE Act, 1993. It was further held that as per the scheme of the NCTE Act, once recognition has been granted by the NCTE, under Section 14(6) of the NCTE Act, every University as an examining body is obliged to grant affiliation to such Institution; Sections 82 and 83 of the Maharashtra University Act were held to be not applicable in such cases. W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 15 of 30 24. A Single Judge of this Court in Trinity Institute of Higher Education (supra) after noticing that the only reason cited by Guru Gobind Singh Indraprastha University for not granting affiliation was the lack of NOC from Govt. of NCT of Delhi and holding that the Govt. of NCT of Delhi had no power to refuse issuance of NOC once recognition had been granted by the NCTE, directed the University to grant affiliation. The question as for consideration in these proceedings was not for consideration before the Single Judge in Trinity Institute of Higher Education. Before the Division Bench in LPA No.542/2008, the contention of the University was that the recognition granted by the NCTE was not in accordance with the NCTE Regulations, 2007 notified on 10th December, 2007. However, on clarification that the application of Trinity Institute of Higher Education for recognition having been filed on 12th November, 2007, the Regulations of 2007 were not applicable, the University withdrew the appeal. 25. It will thus be seen that the judgments in Adhiyaman Educational & Research Institute and Jaya Gokul Educational Trust recognize the right of the University to consider the application for affiliation, of course on parameters not inconsistent with those for recognition prescribed by AICTE and NCTE. Axiomatically, the University will have the right to reject the application for affiliation if satisfied that the said parameters are not fulfilled. There is thus no automatic affiliation as is sought to be urged by W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 16 of 30 the counsel for the petitioners. Of course, the impact of the observations aforesaid in Sant Dnyaneshwar remains to be seen. 26. In so far as Institutions / courses within the domain of AICTE are concerned, the matter is no longer res integra. The Division Bench of this Court in Rahul Dhaka Vikas Society Vs. Guru Gobind Singh Indraprastha University AIR 2001 Del 154, i.e. before Sant Dnyaneshwar, held that it is not obligatory for the University to grant affiliation to an Institute granted recognition by NCTE. The word “shall” in Section 14(6) was held to be read as “may”. Recognition and affiliation were held to be two separate functions. It was further held that normally affiliation should not be refused on grounds covered by Section 14(3) of the NCTE Act and with respect whereto NCTE has already satisfied itself; however the same was held to be not an absolute rule and University was held to have a right to satisfy itself about the fulfilment of conditions for affiliation in accordance with its Act, Statutes etc. It was further held that there may be other valid considerations which may compel the University to still refuse affiliation since it is the University which confers the Degree and it is the credibility, reputation and goodwill of University which is at stake. I may mention that the same Division Bench which decided Rahul Dhaka (supra), in University of Delhi Vs. Shri Karan Ahuja MANU/DE/0628/2002 applied the same principle to AICTE recognized Institutions and courses also. W.P.(C) Nos.4771/2010,5244/2010,5404/2010 & 5415/2010 Page 17 of 30 27. What has to be considered by this Court is whether what has been held by the Division Bench of this Court in Rahul Dhaka stands impliedly overruled by Sant Dnayaneshwar. The Single Judge in Trinity Institute of Higher Education had no ocassion to go into the said question since affiliation in that case was refused only on the ground of absence of NOC from the State and which