IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23-08-2004 CORAM THE HONOURABLE Mrs.JUSTICE PRABHA SRIDEVAN W.P.No 13706 of 2004 and W.P.No.13707 of 2004 , 14069 to 14072,14200,16892, 16998,14102, 14544 , 14681, 14714,17970, 16730, 18359, 22055, 14991, 14488, 12946, 15083 ,15300,18845,15190,21317, 14821, 16821,16988,16989, 20622, 20623, 203 89 to 20392, 19930, 19971, 20897, 21974, 14104, 14110, 14114, 14491, 13781, 15861 to 15865 17044,17484, 6295 & 13783, 14581, 15130, 15161, 17260, 17651, 16238, 16239, 14190, 14148 to 14151, 14169 to 14172, 1 6085, 14500, 18969 to 18971, 19218, 18972, 19110 /2004 and etc. batch and W.P.M.P.Nos.16093, 16094, 16096, 16097, 16585 to 16588, 16781, 16782, 20012, 20151, 20152, 16633, 17230, 17408, 17447, 17448, 21371, 19792 , 21866, 26670, 26671, 17779, 17780, 17160, 15073, 17901, 18171, 2257 3, 18030, 17578, 19907, 19908, 20143, 20145, 25741, 24830, 24833, 248 29, 24832, 24538, 24541, 24544, 24547, 24539, 24542, 24545, 24548, 23 988, 24043, 25162, 26535, 23628, 27490, 16636, 16646, 16652, 17165, 1 6196, 16198, 18834 to 18838, 20216, 20768, 7446, 17281, 17282, 18314, 17954, 17991, 20499, 20996, 19174, 19175, 16766, 16699, 16702, 16705 , 16709, 16700, 16703, 16706, 16708, 16730, 16733, 16736, 16739, 1673 1, 16734, 16737, 16740, 19052, 19053, 17173, 22766 to 22769, 23136, 2 3137, 22770 and 23006 of 2004 In W.P.No.13706/2004 : M.Kumarasamy College of Engineering represented by its Secretary K.Ramakrishnan 127, Main Road Thalavapalayam Karur 639 113. ... Petitioner -Vs- 1.The Government of Tamil Nadu represented by its Secretary Higher Education Department Chennai 600 009. 2.All India Council for Technical Education represented by its Chairman I.G.Sports Complex I.P. Estate New Delhi 110 002 .... Respondents Prayer: Writ Petition No. 13706 of 2004 has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of respondents relating to the order of the first respondent in letter Nos. 2197/J2/2004 dated 04-0 5-2004 and quash the same and direct the second respondent herein to consider the applications of the petitioner in Nos. 0670 of 2004-05 and 127 of 2004-05 dated 28-10-2003 for introduction of new courses viz., B.E. (Civil), B.E. (Applied Electronics and Instrumentation) and M.B.A. With an annual intake of 60 seats in each course and additional intake in B.E. (Mechanical) from 60 to 120 seats, B.E.( Electronics and Communication) from 60 to 120 seats and M.C.A. From 40 to 120 seats during the academic year 2004-05 in the petitioner college viz., M.Kumarasamy College of Engineering, Thalavapalayam, Karur District without insisting upon the N.O.C. of the State Government. !For petitioners : Mr. K. Doraiswami,Senior Counsel for M/s. Muthumani Doraisami, M/s. V. Ayyadurai, V.B. Perumalraj, Mr. R. Krishnamurthy, Senior Counsel for Mr. S. Thankasivan, Mr. R. Krishnamurthy, Senior Counsel for A. Jinasenan, Mr. R. Krishnamurthy, Senior Counsel for M/s. G. Revathy, S. Mothilal, R. Prashanthi, M/S.K. Selvaraj, Sugirdha Selvaraj, Mr. R. Parthasarathy for M/s. Sathish Parasaran, M/s. Suresh Kumar, V. Balaji, M/s. R. Natarajan, M/s. S. Giridharan, S. Sankar Ganesh, P. Godson, M/s. R. S. Jeevarathanam, Madhuri Donti Reddy, S. Kavitha, M/s. C. Selvaraju, S. Mani, T. Sellapandian, M/s. N. Paul Vasantha Kumar, K. Vijayakumar, M/s. V. Bharathidasan, M.M. Sundaresh, B. Singaravel, M/s. K.J. Rebbello, S. Elambharathi, S. Deepika, M/s. M. Sureshkumar, R. Manikandan, M/s. V. Sanjeevi, E. Muthukumarasamy. ^For respondents: For respondents:Mr.R. Muthukumaraswamy Addl. Advocate General Assisted by Mr. V. Karthikeyan, Addl. Govt. Pleader for State in all thepetitions : Mr.Vijay Narayan for AICTE in all the petitions :COMMON ORDER The huge buildings, bearing the name of some college or educational institution stand stark and empty dotted along the Tamil Nadu Highways, like skeletons, mute witnesses to the desolation created in the field of education by the myopic approach and arbitrary orders of the authorities including AICTE and the State and the failure on the part of many educational institutions to maintain a consistent standard of excellence. 2. The Vice Chancellor of the Anna University goes on record to say that over 20,000 Engineering seats will remain vacant this year, because of colleges where standards are low. Alongside is the report of Tamil Nadu Colleges taking the lead in getting accreditation. Allegations of human rights violation are made against institution A or B. So what is the truth about the institutions in Tamil Nadu? What role has the State played in ensuring state of excellence and in promoting the endeavour to spread education? 3. In all these writ petitions, the petitioners question the necessity for an existing institution to obtain a no objection certificate ('NOC' in short) for introduction of new courses or for increase in the sanctioned intake. Section 3 of the All India Council for Technical Education ('AICTE' in short) Act deals with powers and functions of the Council. Section 10 (k) deals with the grant of approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. 4. According to the learned senior counsel and the counsel appearing for the petitioners Regulation 8(4) itself was beyond the regulation making power of AICTE. But Regulation 8(4) has been held to be valid by the judgment reported in SOUTHERN INDIA EDUCATIONAL TRUST V. THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (2003 WLR 561). The petitioners further submit that provision of Regulation 8(9) alone is applicable or relevant, insofar as applications for introduction of new courses or programmes or for increase in intake capacity are concerned. To further insist upon an NOC is not warranted. 5. The Additional Advocate General would contend that Sub-Regulation 9 cannot be torn out of context. When the Regulations are seen as a whole it would be apparent that NOC is required even for introduction of new course or for increase in intake. 6. The Counsel for AICTE also submitted that the Regulations are valid and no approval can be granted without NOC. Regulation 2 deals with Applicability of the Regulations. Regulations 2(b) and 2(c) deal with the introduction of a course and approval of existing intake and for increase in intake. Regulation 4 deals with requirement of grant of approval and subregulation 1 reads thus: "(1) After the commencement of those regulations,- (a).. (b) no course or programme shall be introduced by any technical institutions, University including a deemed University or University Department or College; or (c) .. (d) no approved intake capacity of seats shall be increased or varied; except with the approval of the Council." 7. Regulation 5 deals with forms for applications and specifically states that forms of application for increase in intake and for introduction of new course shall be made in the form specified in Subregulation 2 and shall be accompanied by the documents called for. Subregulation 2(d) of Regulation 5 deals with introduction of additional course or increase in intake and degree level institution. We are only concerned with this because the impugned orders relate to introduction of new courses or increase/variation in intake in existing courses. 8. Regulation 6 deals with conditions for grant of approval and it says that applications under Subregulation 1 shall be considered upon fulfillment of the following conditions: "(i) The financial position of the applicant shall be sound for investment in developed land and in providing related infrastructural and instructional facilities as per the norms and standards laid down by the Council from time to time and for meeting the annual recurring expenditure; (ii) the courses or programmes shall be conducted as per the assessed technical manpower demands; (iii) the admissions shall be made according to the regulations and directions of the Council for such admissions in the respective technical institution or university; (iv) the tuition and other fees shall be charged within the overall criteria as may be laid down by the Council; (v) the staff shall be recruited as per the norms and standards specified by the Council from time to time; (vi) the Governing Body in case of private technical institutions shall be as per the norms as specified by he Council. (vii) any other conditions as may be specified by the Council from time to time." 9. Regulation 7 deals with submission of application and it states that every application, which is submitted for approval shall be made in triplicate with a copy each to the concerned agencies as per the provisions of these regulations. Regulation 7(4) deals with the applications from the registered society for a trust for approval at technical institution functioning on the date of commencement of the Regulations for setting up of new courses and the intake capacity. 10. Regulation 8(1) deals with only applications for approval of new technical institutions since it uses the phrase "in which the new technical institution is to be started". Subregulations 2 and 3 relate to applications which deals with new technical institutions. Regulation 8(4)(e) is important and will be dealt with later. 11. If the regulations are read as a whole it is clear from Regulation 4 that without the approval of the Council, no new course can be started nor increase in intake of the students or variety in existing course. Regulation 5 specifically includes applications for increase in intake or introduction of courses. Regulation 6 refers to every (Emphasis given) application under Regulation 4(1) which covers application made to the Council for introduction of new courses / programmes or for increase in intake. Regulation 7 also uses the words every application for approval of the Council which can only be understood as application for every situation mentioned in Regulation 5(1). Regulation 7(4) refers to the manner in which applications should be made for introduction of new courses or for variation in intake capacity. It is true that Regulation 8(1) refers to new technical institutions and the clauses mentioned thereafter viz., subregulations 2 and 3 also seem to indicate applications for commencement of new technical institution. But when we come to subregulation 4, subregulation 4( e) reads thus: "It shall be necessary for the applicant to obtain 'No Objection Certificate" (NOC) from the concerned State Government/UT, without which the application shall stand rejected. In case of proposals for establishment of new institute, the Council shall not invite the applicant for hearing, if the NOC of the State Government is not received in the Council on or believe the cut-off-date, specified by it. It shall also be desirable for the applicants who are called for hearing to obtain NOC from the concerned affiliating University and produce the same before the Hearing Committee." 12. If the submissions of the petitioners are to be accepted that the application for NOC is necessary only where new institutions are started then the phrase "in case of proposals for establishment of new institution" need not be used. Therefore, it is clear that the second and third sentences in the above extract apply to applications for approval of establishment of new institute, but the first clause of Subregulation 4(e) of Regulation 8 applies to all applications whether it is for approval of establishment of new institutions or approval of increase in intake or approval of introduction of new course. As regards subregulation 8, it refers to Form I and therefore, it can be related to subregulation 2(a) of Regulation 5, which deals with applications for starting technical institutions. It is in this context that subregulation 9 has been introduced and it reads thus: "In case of applications for introduction of new courses or programme or for increase in the intake capacity of seats in any institution approved by the Council, the information about additional requirement of infrastructural, and instructional facilities only shall be required to be furnished by May 15." 13. We should also see the statutory forms in which such applications are to be made. "Approval process for introduction of additional courses/variation in intake of existing courses/extension of approval of the institutions "The Council has decided that the following criteria will be strictly followed while processing the applications/proposals: (a) The application shall not be processed by AICTE without the No Objection Certificate (NOC) from the concerned State Govt./UT Administration for each proposal/application. The NOC must be received by the concerned Regional Office of AICTE by prescribed date." 14. On a harmonious reading of all the regulations the conclusion is that the Council has decided that NOC from the State is necessary for all the categories of application stipulated in Regulation 5. The following observation from 2003 W.L.R.561 (cited supra) are relevant. " 15. As pointed out by the learned counsel for the AICTE, when the State Government/the University attempted to usurp the powers of the AICTE, rightly did the AICTE act by taking exception to the same by filing writ petition and questioning the propriety of what the State Government/the University did. That was at a time neither the State Government nor the University had any say in the matter. On its own the AICTE now wants to involve the State Government, which is in the know of things with regard to the necessity for starting new colleges, new courses, increasing the number of seats, etc., and by no means can it be said that the AICTE has abdicated its powers. It only seeks the assistance of the State Government and wants details." 15. Subregulations 8 and 9 must be read together. Subregulation 8 barring 8(4)(e) deals with new institutions and subregulation 9 deals with application of new courses and increase in intake. Regulations do provide for obtaining an NOC even in cases where new courses are started or intakes is sought to be increased. The AICTE has also framed the National Calendar for the year. It was urged on behalf of the petitioners that the clause 6 in the National Calendar itself is invalid since it insists upon production of NOC, contrary to Regulation 9. Clause 6 reads thus: "The application "not recommended" by the State Govt. shall not be processed by the Council. The NOC of State Government should be received within the cut off date (31-12-2003). In case the State Govt. NOC is not received by the due cut off date, AICTE shall consider the application for further processing." Since it has been held that the production of NOC applies to the applicants like the petitioners also, the National Calendar must be held to be in conformity with the regulations and cannot be quashed. 16. However, if the NOC is not furnished within the stipulated time, the AICTE has reserved to itself the power to go ahead and decide whether the approval should be granted or not. It is only if the State does "not recommend", the application given by the institution that the AICTE does not take the next step. The National Calendar also provides for a date within which the NOC should be given. 17. The petitioners have been fighting a long litigation and it must be remembered that in all these matters the time factor is very crucial. If the petitioners are not entitled to the NOC it is one thing. But if the petitioners are entitled to it which is given belatedly they cannot draw the benefit of the NOC and if the application is rejected improperly or unreasonably then also the institutions suffer. This is the second rejection by the State. The first rejection was challenged by all the petitioners and the Division Bench of this Court by its order in W.P.Nos.645 of 2004 etc.. batch dated 22-04-2004 quashed all the rejection orders by the State on the ground that they are all stereotyped and there was no application of mind. "The impugned orders in all these writ petitions are liable to be set aside on the ground that they are stereo-typed orders passed without application of mind to the specific request of each of the individual applicants for grant of NOC either for increase in intake or establishment of a new college or additional course, etc. For the said reason, we are inclined to set aside the impugned orders in all the writ petitions. ... The first respondent is directed to dispose of the application of the writ petitioners and pass orders for grant of NOC for the academic year 2004-05 on or before 5-5-04 positively and forward the same to AICTE before the said date. In the event the orders are not passed as directed above, it is open to AICTE to consider the request of each of the writ petitioners for the increase in intake or for additional courses, etc., and process the applications further on merits. In such event, AICTE shall process and dispose of the applications of the writ petitioners on or before 5.6.04 so as to enable the institutions to admit the students or to start the new course or college in the event of AICTE granting permission." The Division Bench directed the respondents to reconsider the matter and pass orders thereon within a time frame. 18. Originally, the cut off date for granting of NOC was fixed as 31-12-2003. Some institutions which had got approval from AICTE for new courses applied for variation of intake i.e. they varied the intake in other courses so that the introduction of the new course would not result in increase of total sanctioned strength. The State Government had granted an NOC on their application on 15-01-2004 beyond the cut off date. The Division Bench by its order dated 28-04-2004 quashed the NOCs. The following passage of the order is extracted. "For all the above reasons, we are not inclined to accept the grievance expressed by the petitioners in each of the petitions seeking for a direction to the "AICTE" to inspect the institution and to process further on the basis of "NOC". The "NOC" issued by the State Government cannot be taken into consideration by AICTE, as it was passed after the cut off date and as well as without there being any specific application made by the individual applicant within the cut off date and also no such applications are pending before the "AICTE". As the issue raised in all these writ petitions arises for each academic year, we are inclined to direct the State Government to strictly adhere to the schedule prescribed by the "AICTE for receiving the application and to consider the same and pass orders within the cut off date and also to communicate the said order within the date prescribed for the same. As the Regulation provides "AICTE" for considering the applications for grant of sanction of the additional seats or additional courses in the event "NOCs" are not received within the cut off date, viz., 31.12.2003, it would be fair and proper for the State Government to dispose all the applications seeking for "NOC" well in advance before the last cut off date and communicate the same to the "AICTE" so as to enable the "AICTE" to process further. Communication of " NOC" on the last date, would certainly disable the "AICTE" for considering those applications received by it either for intake or for additional courses or new colleges." 19. Some of the petitioners herein were enumerated in the Annexure to the order dated 15-01-2004. It was submitted on behalf of the petitioners that even if the validity of the provision is upheld they would still be able to show that they have been rejected enmasse and arbitrarily. According to them, the order passed in W.P.5628 of 2004 batch dated 28-02-2004 will not affect their right in the present writ petitions. Therefore, the impugned orders in each of the 71 institutions were perused. The manner in which the respondent has applied its mind, is disappointing to put it mildly. 20. In Preeti Srivastava (Dr) v. State of M.P., ((1999) 7 SCC 120), the Supreme Court dealt with the role of State in the field of education as follows: (Emphasis supplied) "Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government." 21. The Supreme Court also referred to some of the many factors which affect the standard of education in an institution, {1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. (Emphasis supplied) 22. Some observations made in Islamic Academy of Education v. State of Karnataka, [2003 (6) SCC 697) are relevant for the purpose of this case since one of the reasons for which the NOC is refused is that it is not necessary to increase the intake in a particular institution in view of the vacancy position or since there are already vacancies in the particular discipline in the various colleges in the District, to allow the commencement of a new course or increase of the intake is not warranted. "Local needs would vary from State to State. Even development of a backward area may be a local need. Absence of good educational institutions in a particular area may also be a local need. The State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the State as a unit. ? Although local needs, thus, may have to be determined keeping in view the factors enumerated therein but it must also be noticed that no essentiality certificate is required to be given by the State in relation to engineering and other professional colleges. While laying down the law based on interpretation of a constitution as well as a judgment, we cannot take a myopic view and hold that "local needs" must be referable to the medical education." Therefore, we must understand this to mean that the local needs are relevant even with regard to engineering and professional colleges and not only to medical colleges. (Emphasis supplied) 23. In T.M.A. Pai Foundation v. State of Karnataka((2002) 8 SCC 481 ) the Supreme Court has referred to the University Education Commission headed by Dr S. Radhakrishnan and extracts the following from the report submitted by this Commission: "University autonomy.-Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process. Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: 'More light', or that of Ajax in the mist 'Light, though I perish in the light.' * * *