4 ee sett! IN THE MATTER OF : IN THE MATTER OF : ‘IN THE MATTER OF : ¢ ORIGINAL JURISDICTION CASE ) w.p¢c)no,__I256£ oF 2005 %, 199% CODE NO. 2 Maries. pe, An application under Articles 226 and 227 of the Constitution of India; AND A PUBLIC INTEREST LITIGATION. AND Bairagi Charan Nayak, aged about 50 years, son of Late Jagabandhu Nayak, resident of LP- 88, State-I, Laxmisagar Brit . Colony, Bhubaneswar, Dist. Khurda. Pramod Kurnar Swain, aged about 33 years, son of Natabar Swain, At.Dhumat Sasan, P.O. Indupur, Dist. Kendrapara. Rabindranath Panda, aged about 50 yee, son of Late Kasinath Panda, EB-290, State-II, Laxmisagar Brit Colony, Bhubaneswar, Dist. Khurda. PETITIONERS VERSUS ugh the Chief Secretary to the Government, Oriss3, At- State of Orissa, representec Secretariat Building, Bhubaneswar, Dist. Khurda.Union af Thdte, - represented through its Secretary, Ministry of Human Resources Department, Department of Secondary and Higher Education, Sashtri Bhawan, New Delhi. Director, Higher Education Department, At- Secretariat Building, Bhubaneswar, Dist. Khurda. Chairman, University Grant Commission, Bahadur Shah Zafar Marg, New Delhi-11 001. Registrar, Institute of Advance Studies in Education, (Deemed University), Gandhi Vidya Mandir, Sardarshahr-331441, Rajasthan. Chairman, Distant Education Council, Indira Gandhi National Open University, Maidan Gari, New Delhi-110 068. Collector & District Magistrate, Khurda, At/P.O. Bhubaneswar, Dist. Khurda. Superintendent of Police, Khurda, Bhubaneswar, Dist. Khurda. OPP. PARTI.y THE HIGH COURT OF ORISSA : CUTTACK. W.P.(C) Nos. 12566, 12431, 13258, and 15223 of 2005 In the matter of applications under Articles 226 and 227 of the Constitution of India, W.P.(C) No. 12566 of 201 Bairagi Charan Nayak & Ors. a Petitioners - versus - State of Orissa & Ors, ny Opposite Parties .P.(C) No. 12431 of 2005 IASE (DU) Students Association Petitioner - versus - Vice Chancellor, Institute of Advanced Studies in Education, Deemed University, Rajasthan. Opposite Parties w. No. 132: D.K.S. College of Computer & Management Studies, Bhubaneswar Petitioner - versus - Opposite Parties Union of India & Ors. W-P.(C) No. 15223 of 2005 Utkal Institute of Technology; Talcher, Angul ... Petitioner ~ versus - Union of India & Ors. pas Opposite PartiesIn W.P.(C) No. 12566 of 2005 For petitioners For Intervenors For Op. Parties In W.P.(C) No. 12431 For petitioner For Intervenor Mfs. Bijan Ray, Sr. Advocate, Pradeep Ku. Sahoo, S. Das, Manoj Ku. Mishra. --- M/s. Saswata Patnaik, L. Mishra, Om Prakash Mishra, 5.K. Singh. M/s. S.N. Rath, P.K. Rout, D.N, Rath, & C.K. Rajguru M/S.8.P.Tripathy,R.N.Mohanty, RAM Das Acharya,A.Patra,S.R.Parija, M/s.S.N.Rath,P.K.Rout,C.K.Rajgu,D.N.Rath Mr. Janmejaya Katikia Swain, M/s.Dusmanta Nayak,S.Patra,P. Mr. Sangram Jena M/S. Achyutananda Routray, U.R. Bastia, MRS.M.Routray,N.B.Dora ---- M/s. Prasanta Ku. Ray, P.K. Panda (for 0.P.5) Mr. J.K. Mishra, ASG (for 0.P. Nos. 2 & 4) M/s. R.K. Bose, G. Bhol, & J. Nayak (for 0.P.6) 005 - M/s, Saswata Patnaik, L.Mishra, P. Panda, & S.K; Singh... --- M/s.B.P. Tripathy, R.N. Mohanty, Ramdas Acharya, Amrita Patra. For Opp. parties --- Mr. P.K. Ray, for IASE University (0.P. Nos. 1'& 2) Mr. R.K. Mohapatra, Govt. Advocate For 0.P. No.4. Mr. J.K, Mishra, Senior Advocate for UGC (0.P.5) M/s..R.K. Bose, G. Bhol & J. Nayak (for O.P. 6). Ye7 In W.P.(C) No. 13258 of 2005 For petitioner --- M/s. S.K. Padhi, Mrs. M. Padhi, S.K. Mohapatra, & G. Mishra lishra, Sr. Advocate (for O.P. 1 to 3) For Opp. parties --- M/S.J.K. M/s. G. Bhol & 3. Nayak (for 0.P. 4). aes ‘D. Mund, D.Routray For Opp. parties --- M/s.J.K. Mishra, Sr. Advocate (for 0.P. 1 & 2) In W.P.(C) No. 15223 of 2005 For petitioner M/s. G. Bhol & J. Nayak (for 0.P. 4). M/s. Manoj Ku. Mishra, P.K. Das, J. Panda (for 0.P. No.3). PRESENT ; THE HONOURABLE CHIEF JUSTICE MR. V. GOPALA GOWDA “THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA V. Gopala Gowda, C.J. These writ petitions have been filed by some public spirited persons; Students Union who are studying their technical education in the institutions under the Deemed Universities established under the Notification issued under Section 3 of the Universities Grant Commissions Act, ‘1986 ‘and imparting. education. in professional courses; and two Technical Colleges seeking following reliefs: “1. Issue 2 writ of mandamus or any other appropriate direction’ to the opposite party Nos. 4 & 6, University Grants Commission (UGC) and Indira Gandhi National Open University (IGNOU) respectively to constitute a High Power Committee consisting of experts and to enquire into the matter with regard to validity of the establishment and continuance of study centres under O.P. No.5. Ne2. Issue a direction to the State Government to protect the interest of the students inasmuch as who are prosecuting their studies in different study centers permitted by opposite party No.5 as well-as the interest of the study centres; 3. The opposite parties may be directed to take immediate steps to secure the future of almost 60,000 students all over the country and almost 35,000 students in Orissa whose future are at stake by either immediately obtaining the approval of the UGC and the Distance Education Council (DEC) for the technical and vocational courses and approval for their study centres along with the NOC from the respective State Government with restrospective effect or to take immediate steps and measures for alternate absorption of the enrolled students in any DEC and UGC approved system which is offering valid/recognized/approved Distance Education Programmes. 4. For issuance of a direction to the UGC and the DEC to grant approval to the Deemed University (0.P. No.1 in W.P.(C) No. 12431 of 2005) with restrospective effect as the University has already applied for the ex-post facto approval with requisite fees and details.” 2, UGC and AICTE have filed their statement of counter traversing the petitioners’ averments. 3. Learned counsel on behalf of the petitioners have placed strong reliance upon the judgment of the Supreme Court in the case of Bharathidasan University & Anr. v. All-India Council for Technical Education & Ors. reported in (2001) 8 SCC 676, wherein the provisions of Sections 10(1)(k), 2(h) (i) and 23 of the All India Council of Technical Education Act,1987 fell for consideration and the Hon’ble Supreme Court has interpreted that the definition of Universities which a ‘Deemed University’ under the UGC Act and categorically held that the Act does not require @ university to obtain prior approval of AICTE for starting a department or unit as an adjunct to the university itself to conduct technical education courses of its choice. Regulations framed wounder the Act requiring the University to obtain such approval is held to be void and unenforceable. While stating so, the apex.Court has further clarified that the: University obliged to conform to the standards and norms laid down by the AICTE under the All India Council for Technical Education (Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Approval of Intake Capacity of Seats for the Courses or Programmes) Regulations, 1994. Further, at paragraph 15 of the said judgment the apex Court interpreting Section 10 and definition of “technical institution” under Section 2(h) of the AICTE Act held that the ‘technical institutions’ cannot include a ‘university. The clear intention of the legislature is not that all institutions whether university or otherwise ought to be treated as “technical institution” covered by the Act. If that was the intention, there was no difficulty for the legislature to have merely provided a definition of “Technical institution” by not excluding “university” from the definition thereof and thereby avoided the necessity to use alongside both the words “technical institutions” and “university” in several provisions of the Act. The definition of “technical institution” excludes from its purview a “university”. When by definition a “university” is excluded from a “technical institution”, to interpret that such a clause or such an expression wherever the expression “technical institution” occurs will include-a “university” will be reading into the Act what is not provided therein. The power to grant approval for starting new technical institutions and for introduction of new courses or Programmes in consultation with the agencies concerned is covered bySection 10(k) which would not cover a “university” but only a “technical institution”. If Section 10(k) does not cover @ “university” but only a “technical institution”, a regulation cannot be framed in such a manner so as to apply the regulation framed in respect of “technical institution” to apply to universities when the Act maintains a complete dichotomy between a “university” and a “technical institution”. 4. Further at paragraph 10 of the said judgment, the apex Court has held that the AICTE created under the Act is not intended to be an authority either superior to or supervise and control the universities and thereby superimpose itself upon such universities merely for the reason that it is imparting education by teaching technical education or programmes in any of its departments or units. A careful scanning-through of the provisions of the AICTE Act and the provisions. of the UGC Act in juxtaposition, will show that the role of AICTE vis-a-vis the universities is only advisory, recommendatory and a guiding factor and thereby subserves the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself, except submitting a report,to UGC for appropriate action. In this regard the apex Court has succinctly laid down the law at paragraph 10 of its judgement. Paragraph 10 is extracted below : “10. Since it is intended to be other than a university, the Act.defines in Section 2(/). “university” to mean a university defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 and also to be inclusive of-an-institution-deemed to-be a university under Section 3 of the said Act. Section 10 of the Act enumeratesthe various powers and functions of AICTE as also its duties and obligations to take steps towards fulfilment of the same. One such as envisaged in Section 10(1)(k) is to “grant approval for starting ‘new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned”. Section 23, which empowers the Council to make regulations in the manner ordained therein emphatically and specifically, mandates the making of such Regulations only “not inconsistent with the provisions of this Act and the Rules”. The Act, for all purposes and throughout maintains the distinct identity and existence of “technical institutions” and “universities” and it is in keeping tune with the said dichotomy that wherever the university or the activities of the university are also to be supervised or regulated and guided by AICTE, specific mention has been made of the university alongside the technical institutions and wherever the university is to be left out and not to be roped in merely refers to the technical institution only in Sections 10, 11 and 22(2)(b). It is necessary and would be useful to advert to Sections 10(1)(c), (g), (2) which would go to show that universities are mentioned alongside the “technical institutions” and clauses (k), (m), (p), (q), (Ss) and (u) wherein there is conspicuous omission of reference to universities, reference being made to technical institutions alone. It is equally important to see that when AICTE is empowered to inspect or cause to inspect any technical institution in clause (p) of sub-section (1) of Section 10 without any reservation whatsoever, when it comes to the question of universities it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. The inspection may be made or cause to be made of any department or departments only and that too, in such manner as may be prescribed as envisaged in Section 11 of the Act. Clause (t) of sub-section (1) of Section 10 envisages AICTE to only advise UGC for declaring any institution imparting technical education as a deemed university and not do any such thing by itself. Likewise, clause (u) of the same provision which envisages the setting up of a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it to make recommendation to it, or’to the Council, or to the Commission or to other bodies, regarding recognition or de- recognition of the institution or the programme. All these vitally important aspects go to show that AICTE created under the Act is not intended to be an authority either superior to or supervise and contro! the universities and thereby superimpose itself upon such universities merely for ithe reason that it is imparting teaching in technical education or programmes in any of its departments or units. A careful scanning-through of the provisions of the AICTE ‘Act and the provisions of the UGC Act in juxtaposition, will show that the role of AICTE vis-a-vis the universities is only advisory, recommendatory and a guiding factor and thereby subserves the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself, except submitting a report to UGC for appropriate action. The conscious and deliberate omission to enact any such provision in the AICTE Act in respect of universities is not only a positive indicator but should be also one of the determining factors in adjudging the status, role and activities of AICTE vis-a-vis universities and the activities and functioning of its departments and units. All these vitally important facets with so much glaring significance of the scheme underlying the Act and the language of the various provisions seem to have escaped the notice of the learned Judges, their otherwise well-merited attention and consideration in their proper and correct perspective. The ultra-activist view articulated in M. Sambasiva Rao casel on the basis of supposed intention and imagined purpose of AICTE or the ‘Act constituting it, is uncalled for and ought to have been avoided, all the more so when such an interpretation is not only bound to do violence to the language of the various provisions but also inevitably render other statutory authorities like UGC and universities irrelevant or even as non-entities by making AICTE a superpower with a devastating role undermining the status, authority and autonomous functioning of those institutions in areas and spheres assigned to them under the respective legislations constituting and géverning them.” 5. Further, at paragraphs 13 and 15 of the said judgement the apex Couirt ith feference to Section 10 (k) of the Act held that Section 10(k) “does bk cover a “university” but only a “technical institution”. It is further held that when the language is specific, unambiguous and positive, the same cannot be overlooked to give an expansive meaning under pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to dee9 the statement of objects and reasons for the AICTE Act, is no warranted or justified. Therefore, it is clearly held that, the Regulations insofar as they compel the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education under Regulation 4 and empower itself to withdraw such approval, in a given case of contravention of the Regulations (Regulation 12), are directly opposed to and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable. 6. Learned counsel on behalf of the petitioners also placed strong reliance upon the Notification issued by the Government of India, Ministry of Human Resource Development, Department of Secondary & Higher Education (U & HE Bureau) dated st April, 2006 in exercise of power vested under Section 10(1) of the UGC Act, 1956 and Section 10(1) of the AICTE Act, 1987 directing the UGC and the AICTE to publicize the clarification issued under the said Notification for the information of the general public. 7. In the said Notification it is clarified that the institutions notified by the Central Government under Section 3 of the UGC Act 25 ‘Deemed to be University’ are empowered to award degrees as specified and notified under Section 22 of the UGC Act, 1956. While stating £0, following further clarifications have been issued, which read thus :10 degrees in disciplines covered under the AICTE Act, 1987. However, institutions notified as ‘Deemed to be University’ are required to ensure the maintenance of the minimum standards prescribed by the AICTE for various courses that come under the jurisdiction of the said Council. It is expected that the institutions notified as ‘Deemed to be University’ maintain their standards of suiauon higher than the minimum prescribed by the AICTE, In accordance with provisions under Section 11 (1) of the AICTE Act, 1987, the AICTE may cause an inspection of the relevant departments of the institution declared as ‘Deemed to be University’, offering the courses that ‘come under the jurisdiction of the AICTE Act, 1987 in ‘order to ensure the maintenance of standards by them. However, while the AICTE would not issue any directions to the institutions notified as ‘Deemed to be University’ on the basis of inspection report of,the Council's Expert Committee, the Council. may bring the findings and recommendations of its Expert Committee to the notice of the University Grants Commission, which after considering the report of the Expert Committee of the AICTE and recommendations, if any, may issue necessary directions for appropriate action. Section 12 (d) of the UGC Act, 1956 empowers the UGC to recommend, to any University including institutions notified as-‘Deemed to be University’, the measures necessary for the improvement of University education and advise them for all such actions as are necessary for the purpose of implementing such recommendations.” In the said Notification it has made clear that with reference to Section 11 (1) of the AICTE Act, 1987, the AICTE may cause an inspection of the relevant departments of the institution declared as ‘Deemed to be University’, offering the courses that come under the jurisdiction of the AICTE Act, 1987 in order to ensure the maintenance of standards by them. It has been further clarified that the AICTE would not issue any directions to the institutions notified as ‘Deemed to be University’ on the basis of inspection report of the a ie11 Council's Expert Committee, the Council may bring the findings and recommendations of its Expert Committee to the notice of the University Grants Commission, which after considering the report of the Expert Committee of the AICTE and recommendations, if any, may issue necessary directions for appropriate action. Further, Section 12 (d) of the UGC Act, 1956 empowers the UGC to recommend, to any University including institutions notified as ‘Deemed to be University’, the measures necessary for the improvement of University education and advise them for all such actions as are necessary for the purpose of implementing such recommendations. 9. In view of the aforesaid decision of the Supreme Court in Bharathidasan University (supra) and the aforesaid Notification dated 5" April, 2006 issued by the Central Government in the Ministry of Human Resource Development clarifying that it is not required for a ‘Deemed University’ established under Section 3 of the UGC Act to obtain prior approval of AICTE for starting a department or unit as an adjunct to the university itself-to conduct/introduce technical education courses or programmes of its choice, the apprehension of the petitioners in these writ petitions do not arise. Therefore, after the: decision rendered by the Supreme Court in Bharathidasan University (supra) and aforesaid Notification issued by the Central Government clarifying the matter, it is not necessary on’the part of this Court again ‘to issue a direction as sought for in these writ petitions.1a) 7 10. With ‘the aforesaid observations, referring to the decision of the Supreme Court and the Notification of the Central Government referred to above; all these writ petitions are disposed of holding that prior approval for a ‘Deemed University’ to start any new department or course or programme in technical education is not required, but the Universities are bound to conform the standards and norms laid down by the AICTE following the guidelines/regulations, and Clarification issued by the Central Government referred to above. | ell Ve Gopals Ganaa, ¢ ve B.N. Mahapatra, J. I agree. £di-_B .plhymosapafrr. 5 Orissa High Court, Cuttack z The 24" day of September, 2012/A. Dash OPM