Supreme Court: In a case where an Engineering College was not able to introduce a new course despite receiving AICTE’s approval, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has upheld the power of Universities to fix norms for the grant of affiliation. The Court said,
“While universities cannot dilute the standards prescribed by AICTE, they certainly have the power to stipulate enhanced norms and standards.”
The Division Bench of the Kerala High Court had directed the Vice Chancellor of the APJ Abdul Kalam Technological University to reconsider the application for affiliation of a new B.Tech course, submitted by Jai Bharath College of Management and Engineering Technology, a self-financing Engineering College, solely on the basis of the extension of approval granted by the All India Council for Technical Education.
With a view to regulate technical education in the State, the State of Kerala enacted the APJ Abdul Kalam Technological University Act, 2015.
The Engineering College in question is a self-financing Institution which was earlier offering B.Tech courses in five disciplines with an annual permitted intake of 60 students in each of the disciplines. After closing the course in one particular discipline, the Engineering College applied in February/March-2020 seeking approval of the AICTE for starting a new course in “Artificial Intelligence and Data Science” with a permitted annual intake of 60 students, from the Academic Year 2020¬21. AICTE granted approval for the same.
However, based on Government Order dated 22.06.2019 and the resolution of the University’s Syndicate, the subcommittee of the University did not recommend the grant of affiliation to the College in question for the proposed new course.
Relevant Government Order
The Government order dated 22.06.2019 directed that permission for starting new courses in Engineering shall be granted only if three conditions are satisfied namely:
(i) that the college should have NBA accreditation;
(ii) that the admission of students in the previous academic years should have been more than 50% of the sanctioned intake; and
(iii) that the new course should be innovative.
Syndicate’s impugned decisions
University’s Syndicate, in it’s decision dated 04.02.2020 fixed the following norms for the grant of affiliation to new programs based on the recommendation of the Academic Council:
(i) that at least one of the existing programs should have NBA accreditation;
(ii) that the average annual intake of the institution for the previous three years should be more than 50% of the sanctioned intake;
(iii) that the proposed programme should have AICTE approval and NOC from State Government; and
(iv) that the proposed programme should have industry demand/employment potential.
Later, the Syndicate, though decision dated 24.06.2020 fixed the following criteria:
(i) that the Institution should have more than 50% pass for the outgoing students at the time of application for affiliation;
(ii) that the Institution should have most recent academic audit overall score of “Good”; and
(iii) that the Institution should have three years average intake of more than 50% of the sanctioned intake.
Syndicate’s power to prescribe norms and standards for affiliation
In the case on hand, the Court noticed that the power to lay down norms and standards and the power to affiliate to itself the Colleges, flow out of clause (iii) and (iv) of Section 8 of the APJ Abdul Kalam Technological University Act, 2015. This power is exercisable by University in accordance with the provisions of the Act, the Statutes, Ordinances and Regulations. It is the very same Section 8 which confers power upon the University to make Statutes, Ordinances and Regulations, under clause (xxvi).
Section 30(1) vests upon the Syndicate, the executive powers of the University, including the general superintendence and control over the institutions of the University. Sub¬section (2) of Section 30 lists out the powers available to the Syndicate, subject to the provisions of the Act and the Statutes.
Thus, the source of power for the Syndicate to prescribe norms and standards for affiliation, is Section 30(2) which begins with the words “subject to the provisions of the Act and the Statutes”. So, if there is something in the Act or the Statutes which regulates or controls the power of the Syndicate, then the Syndicate may be bound by such prescription. But if there is nothing in the Act/Statutes or if there are no Statutes at all, then it cannot be said that the power itself is unavailable. What is important to observe is that the power of the Syndicate to propose norms and standards flows out of the Act and not out of the University Statutes. Therefore, the absence of Statutes, till they were made for the first time on 07.08.2020, did not mean that the power under Section 30(2) could not have been exercised.
It was, hence, noticed that the Kerala High Court erred in thinking that in the absence of the Statutes, recourse was available only to the Vice Chancellor under Section 14(6), overlooking for a moment that the power under Section 30(2)(iii) would not become otiose due to the absence of the Statutes.
“The absence of the Statutes (till 07.08.2020) would only mean the absence of Statute-stipulated conditions and procedure for affiliation, but not the absence of the very power of the Syndicate flowing out of Section 30(2)(iii).”
Even assuming for a moment that the absence of the Statutes would take one automatically to Section 14(6), the inference drawn therefrom by the High Court may not be correct. Section 14(6) says that in the absence of a Statute, it is the Vice Chancellor who has the power to regulate any matter which is required to be regulated by Statutes or Regulations. It cannot be interpreted to mean that the Syndicate itself will be powerless in the absence of the Statutes and that the Vice Chancellor will have the power.
In any case, the language of Section 14(6) is such that the Vice Chancellor may first regulate the matter by issuing directions and thereafter submit the same “as soon as may be” for the approval of the Board of Governors or other authority or body concerned. By virtue of Section 30(2)(iii), the Syndicate can be taken to be the “other authority” referred to in Section 14(6). If we do so, it can be seen that it was the Syndicate, chaired by the Vice Chancellor which took the impugned decisions in its meetings held on 04.02.2020 and 24.06.2020 and hence the prescription of norms by the Syndicate, chaired by the Vice Chancellor cannot be said to be ultra vires the Act.
“After all, the norms which the Colleges have objected to, merely seek to ensure that at least 50% of the outgoing students had passed their respective courses and that the Institution should have the most recent academic audit overall score of “Good”, apart from having an actual intake of more than 50% of the sanctioned intake in the preceding three years on an average. We fail to understand how colleges can demand affiliation for creating additional courses, when the pass percentage of outgoing students is less than 50% and the Colleges could not even have an average intake of more than 50% of the sanctioned intake in the preceding three years.”
Role of the Universities vis-à-vis AICTE
The law is now fairly well settled that while it is not open to the Universities to dilute the norms and standards prescribed by AICTE, it is always open to the Universities to prescribe enhanced norms. Even the State Government can prescribe higher standards than those prescribed by AICTE.
Though AICTE has reserved to itself the power to conduct inspections and take penal action against colleges for false declarations, such penal action does not mean anything and does not serve any purpose for the students who get admitted to colleges which have necessary infrastructure only on paper and not on site. The Regulations of the AICTE are silent as to how the students will get compensated, when penal action is taken against colleges which host false information online in their applications to AICTE.
“Ultimately, it is the universities which are obliged to issue degrees and whose reputation is inextricably intertwined with the fate and performance of the students, that may have to face the music and hence their role cannot be belittled.”
The Ministry of Human Resources Development of the Government of India launched an initiative in September 2015, known as National Institutional Ranking Framework (NIRF), for ranking institutions including universities in India. The ranking is based on certain parameters such as:
(i)Teaching, Learning and Resources;
(ii) Research and Professional Practice;
(iii) Graduation Outcomes;
(iv) Outreach and Inclusivity; and
(v) Peer Perception.
“No State run university can afford to have a laid-back attitude today, when their own performance is being measured by international standards. Therefore, the power of the universities to prescribe enhanced norms and standards, cannot be doubted.”
[APJ Abdul Kalam Technological University v. Jai Bharath College of Management and Engineering Technology, 2020 SCC OnLine SC 1015, decided on 10.12.2020]
*Justice V. Ramasubramanian has penned this judgment.
For University: Senior Advocate Chander Uday Singh
For respondent college: Advocate S. Krishnamoorthy
For State: Advocate Priyanka Prakash
For AICTE: Advocate Anil Soni
For intervenors: Senior Advocates C. Arayama Sundaram, Gopal Sankaranarayanan and P.S. Narasimha