# THE JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY REGISTRAR v. SANGAM LAXMI BAI VIDYAPEET & ORS

- **Citation:** [2018] 14 S.C.R. 103
- **Court:** Supreme Court of India
- **Decided:** 2018-10-29
- **Case number:** Civil Appeal No. 10807 of 2018
- **Bench:** Arun Mishra, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-jawaharlal-nehru-technological-university-registrar-v-sangam-laxmi-bai-32558
- **Pages:** 25

## Headnote

Telangana Education Act, 1982 - s.20 - Respondent-College
applied to the appellant-University for grant of No Objection
Certificate (NOC) to start the D.Pharma course in their college
during the academic year 2018-2019 - University declined NOC
on the ground that as per the Government's policy and perspective
plan, NOC was not to be granted for new institutions and new
courses - Challenged by respondent - High Court allowed the writ
petition - On appeal, held: s.20 deals with permission for the
establishment of educational institutions - s.20(1) provides that
competent authority shall conduct survey to identify the educational
needs of the locality under its jurisdiction as to how many institutions
are operating in the area and whether there is any further requirement
of opening educational institutions/new courses in existing colleges
- s.20(3) provides that any educational agency applying for
permission u/s.20(2) shall before the permission is granted, satisfy
the authority concerned that there is a need for providing educational
facilities to the people in the locality - In case there are already
large number of institutions imparting education in the area, the
competent authority may be justified not to grant the NOC, for
permitting an institution to come up in the area - s.20 intends to
prevent the mushroom growth of the institutions/courses - There is
already a paucity of well-qualified teachers in a large number of
institutions and the available seats in Pharmacy course in the
Hyderabad city are remaining vacant every year in spite of the
reduction in number of seats - Thus, in the instant case when 30
institutions in Hyderabad city are already running Pharmacy course,
the refusal to grant NOC by the University was wholly justified -
Policy decision of the State Government cannot be said to be illegal
- High Court erred in holding that the University was bound to
issue NOC - AICTE Act, 1987 - ss.2(g), 23(1) r/w ss.10 and 11.
[2018] 14 S.C.R. 103
103
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104 SUPREME COURT REPORTS [2018] 14 S.C.R.
All India Council for Technical Education (Grant of approvals
for the Technical Institutions) Regulations, 2016 - Regulation 4.18
- If repugnant to Regulations 5.2 and 5.3 of 2017 Regulations -
Held: Regulation 4.18 cannot be said to be repugnant to Regulations
5.2 and 5.3 of the 2017 Regulations - Jawaharlal Nehru Affiliation
Procedure and Regulations, 2017.
Allowing the appeal, the Court
HELD : 1.1 Section 20 of the Telangana Education Act,
1982 deals with permission for the establishment of educational
institutions. Section 20(1) provides that competent authority shall
conduct a survey as to identify the educational needs of the locality
under its jurisdiction. Section 20(3) provides that any educational
agency applying for permission under section 20(2) shall before
the permission is granted, satisfy the authority concerned that
there is a need for providing educational facilities to the people
in the locality. The survey is conducted so as to identify the
educational needs of the locality viz., as to how many institutions
are operating in the area and whether there is any further
requirement of opening educational institutions/new courses in
existing colleges. In case there are already a large number of
institutions
imparting
education
in
the
area
the
competent authority may be justified not to grant the NOC,
for permitting an institution to come up in the area.
[Para 12][110-H; 111-A; 112-G-H; 113-A]
1.2 The provisions contained in Section 20 of the 1982 Act
are wholesome and intend not only to cater to the educational
needs of the area but also prevent the mushroom growth of the
institutions/courses. In case institutions are permitted to run each
and every course that may affect the very standard of education
and may ultimately result in sub-standard education. There is
already a paucity of well-qualified teachers in a large number of
institutions and the available seats in Pha

## Text

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THE JAWAHARLAL NEHRU TECHNOLOGICAL
UNIVERSITY REGISTRAR
v.
SANGAM LAXMI BAI VIDYAPEET & ORS.
(Civil Appeal No. 10807 of 2018)
OCTOBER 29, 2018
[ARUN MISHRA AND INDIRA BANERJEE, JJ.]
Telangana Education Act, 1982 - s.20 - Respondent-College
applied to the appellant-University for grant of No Objection
Certificate (NOC) to start the D.Pharma course in their college
during the academic year 2018-2019 - University declined NOC
on the ground that as per the Government's policy and perspective
plan, NOC was not to be granted for new institutions and new
courses - Challenged by respondent - High Court allowed the writ
petition - On appeal, held: s.20 deals with permission for the
establishment of educational institutions - s.20(1) provides that
competent authority shall conduct survey to identify the educational
needs of the locality under its jurisdiction as to how many institutions
are operating in the area and whether there is any further requirement
of opening educational institutions/new courses in existing colleges
- s.20(3) provides that any educational agency applying for
permission u/s.20(2) shall before the permission is granted, satisfy
the authority concerned that there is a need for providing educational
facilities to the people in the locality - In case there are already
large number of institutions imparting education in the area, the
competent authority may be justified not to grant the NOC, for
permitting an institution to come up in the area - s.20 intends to
prevent the mushroom growth of the institutions/courses - There is
already a paucity of well-qualified teachers in a large number of
institutions and the available seats in Pharmacy course in the
Hyderabad city are remaining vacant every year in spite of the
reduction in number of seats - Thus, in the instant case when 30
institutions in Hyderabad city are already running Pharmacy course,
the refusal to grant NOC by the University was wholly justified -
Policy decision of the State Government cannot be said to be illegal
- High Court erred in holding that the University was bound to
issue NOC - AICTE Act, 1987 - ss.2(g), 23(1) r/w ss.10 and 11.
[2018] 14 S.C.R. 103
103
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104 SUPREME COURT REPORTS [2018] 14 S.C.R.
All India Council for Technical Education (Grant of approvals
for the Technical Institutions) Regulations, 2016 - Regulation 4.18
- If repugnant to Regulations 5.2 and 5.3 of 2017 Regulations -
Held: Regulation 4.18 cannot be said to be repugnant to Regulations
5.2 and 5.3 of the 2017 Regulations - Jawaharlal Nehru Affiliation
Procedure and Regulations, 2017.
Allowing the appeal, the Court
HELD : 1.1 Section 20 of the Telangana Education Act,
1982 deals with permission for the establishment of educational
institutions. Section 20(1) provides that competent authority shall
conduct a survey as to identify the educational needs of the locality
under its jurisdiction. Section 20(3) provides that any educational
agency applying for permission under section 20(2) shall before
the permission is granted, satisfy the authority concerned that
there is a need for providing educational facilities to the people
in the locality. The survey is conducted so as to identify the
educational needs of the locality viz., as to how many institutions
are operating in the area and whether there is any further
requirement of opening educational institutions/new courses in
existing colleges. In case there are already a large number of
institutions
imparting
education
in
the
area
the
competent authority may be justified not to grant the NOC,
for permitting an institution to come up in the area.
[Para 12][110-H; 111-A; 112-G-H; 113-A]
1.2 The provisions contained in Section 20 of the 1982 Act
are wholesome and intend not only to cater to the educational
needs of the area but also prevent the mushroom growth of the
institutions/courses. In case institutions are permitted to run each
and every course that may affect the very standard of education
and may ultimately result in sub-standard education. There is
already a paucity of well-qualified teachers in a large number of
institutions and the available seats in Pharmacy course in the
Hyderabad city are remaining vacant every year in spite of the
reduction in a number of seats. It had not been possible to fill up
the available vacancies due to non-availability of students. Thus,
it is apparent that when 30 institutions in Hyderabad city are
already running Pharmacy course, the refusal to grant NOC by
the University was wholly justified. [Para 13][113-B-D]
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1.3 Regulations 5.2 and 5.3 of Jawaharlal Nehru Affiliation
Procedure and Regulations, 2017 provide that a new college
proposing to offer technical education with the University affiliation
shall first seek a NOC from the University before applying to
AICTE/PCI/any other statutory body. Regulation 5.3 provides
that the permission for starting of new programmes in the existing
colleges shall be considered by the University as per the priority/
policy of the State Government if any. The High Court erred in
law in holding that it was not permissible for the State Government
to frame such a policy and the University was bound to issue
NOC. [Paras 14, 16][113-D-E; 115-G-H]
1.4 The Government of Telangana vide its communication
to the All India Council of Technical Education Regulations
(AICTE) had expressed serious concern at the proliferation and
establishment of technical institutions and the unprecedented
expansion in the intake in all the courses offered by all the
technical institutions coming within the purview of AICTE. Data
was given in the tabular form including that of the Pharmacy. It
was pointed out that in the year 2015-16 sanctioned intake in
Pharmacy was 11490, seats remained vacant were 4035, in
academic session 2016-17 sanctioned intake was 9226, seats
vacant were 1892. [Para 17][116-A-C]
2. The AICTE Act, 1987 defines technical education in
section 2(g) to mean programmes of education inter alia in
Pharmacy also. There is no provision in the said Act to the contrary
to curtail the power of the State as well as of University. The
AICTE has framed the Regulations under the Act of 1987 in the
exercise of the power conferred under section 23(1) read with
sections 10 and 11 of the Act of 1987 called the All India Council
for Technical Education (Grant of approvals for the Technical
Institutions) Regulations, 2016. Regulation 4.18 provides that
the State Government/UT Administration and the Affiliating
University/Board, as the case may be, shall forward their views
along with the perspective plan of the State and then the application
shall be processed for grant of approval. Regulation 4.18 cannot
be said to be repugnant to Regulations 5.2 and 5.3 of the
University, and there is no repugnancy in AICTE Act and Section
20 of the Act of 1982. [Paras 18, 19][116-D-F; 117-C]
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET
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3. The decision taken by the State Government as apparent
from facts reflected in perspective plan is based on a survey and
supported by the data. Considering the fact that seats are going
abegging. Even in 2017-18 in the Pharmacy course, data has been
given that among 56 colleges affiliated to the University, 30 were
in the city of Hyderabad and out of total 1630 seats, 173 had
remained vacant. Thus, it is apparent that a large number of seats
remained vacant. Not more than 30 seats can be allotted to one
institution. The mushroom growth of educational institutions
cannot be permitted. Standard of education cannot be
compromised and sacrificed by permitting institutions to come
up in a reckless manner without there being any requirement for
them at a particular place. The decision of State had been taken
in an objective manner and the same is based on the consideration
of data and could not be said to be irrational or arbitrary in any
manner whatsoever. The policy decision of the State Government
cannot be said to be illegal and on that basis, the University has
taken the decision in terms of Section 20 of the Act of 1982. In
the instant case, the matter was about the proposed location and
affiliation, out of 36 Pharmacy colleges in the State of Telangana
and 30 are located in Hyderabad city alone which are more than
adequate in number. Thus, rightly decision has been taken not
to start another new course at the proposed location at Hyderabad
city. [Paras 21, 27 and 30][119-D, H; 120-A; 127-B-C]
Government of Andhra Pradesh v. J.B. Educational
Society (2005) 3 SCC 212 : [2005] 2 SCR 302 - relied
on.
State of T.N v. Adhiyaman Educational & Research
Institute (1995) 4 SCC 104 : [1995] 2 SCR 1075 ; Jaya
Gokul Education Trust v. Commissioner & Secretary to
Government of Higher Education Department,
Thiruvananthapuram, Kerala (2000) 5 SCC 231 :
[2000] 2 SCR 1234 ; State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya
(2006) 9 SCC 1 : [2006] 3 SCR 638 ; Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal
Medical Education & Charitable Trust v. State of Tamil
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Nadu (1996) 3 SCC 15 : [1996] 2 SCR 422 ; Rungta
Engineering College, Bhilai v. Chhattisgarh Swami
Vivekananda Technical University (2015) 11 SCC 291
: [2014] 12 SCR 796 - referred to.
Case Law Reference
[2005] 2 SCR 302
relied on
Para 6
[1995] 2 SCR 1075
referred to
Para 22
[2000] 2 SCR 1234
referred to
Para 25
[2006] 3 SCR 638
referred to
Para 28
[1996] 2 SCR 422
referred to
Para 30
[2014] 12 SCR 796
referred to
Para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10807
of 2018.
From the Judgment and Order dated 02.02.2018 of the High
Court of Judicature at Hyderabad for The State of Telangana and The
State of Andhra Pradesh in W.P. No. 31293 of 2017.
K. Radhakrishnan, Sr. Adv., P. Venkat Reddy, P. Prabhakar,
Prashant Tyagi for M/s. Venkat Palwai Law Associates, Advs. for the
Appellant.
V. Giri, Sr. Adv., Mahfooz Nazki, Avinash Tripathi, M. P. Devanath,,
Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question involved in the appeal is whether a University is
bound to give 'No Objection Certificate' (NOC) for opening an
educational institution or for a new course irrespective of educational
needs of the locality under its jurisdiction. In other words, is the University
bound to give NOC in a local area irrespective of whether institutions
are required in the area and thereby promote the mushroom growth of
institutions?
2. Respondent no.1 - Sangam Laxmibai Vidyapeeth, is a registered
society which has sponsored and manages Bojjam Narasimhulu
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
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Pharmacy College for Women, being Respondent No.2, set up at
Hyderabad. On 27.7.2017, Respondent No.2 applied to the Jawaharlal
Nehru Technological University (for short, "the University") for grant
of No Objection Certificate (NOC) to start the D.Pharma course in
their college during the academic year 2018-2019. On 19.8.2017, the
University declined NOC on the ground that as per the Government's
policy and perspective plan, NOC was not to be granted for new
institutions and new courses.
3. Respondent No.2 on 26.8.2017 filed an application before the
Pharmacy Council of India (for short, 'the PCI') for grant of approval
for starting D. Pharma course for the academic year 2018-2019. The
PCI insisted on the production of NOC certificate from the University.
4. Challenging the communication dated 19.8.2017 of the University
declining NOC and also challenging regulations 5.1, 5.2 and 6 of the
Jawaharlal Nehru Affiliation Procedure and Regulations, 2017 (hereinafter
referred to as "the 2017 Regulations"), the respondent filed a writ petition
before the High Court.
5. In its counter affidavit filed in the High Court, the University
contended that under the provisions of Section 20 of the Telangana
Education Act, 1982 (hereinafter referred to as "the Act of 1982"),
obtaining of NOC as per the All India Council of Technical Education
Regulations (for short, 'the AICTE Regulations') and the 2017
Regulations, was necessary for starting new courses.
6. The validity of Section 20 of the erstwhile Andhra Pradesh
Education Act, which is in pari materia with Section 20 of the Act of
1982, has been upheld in Government of Andhra Pradesh v. J.B.
Educational Society, (2005) 3 SCC 212. The said Act stands adopted
in the State of Telangana.
7. The Government of Telangana also filed a counter-affidavit
pointing out that Government has taken a policy decision and requested
the AICTE by a letter dated 29.11.2016 to declare a holiday on the
establishment of new technical institutions for the academic year 20172018 onwards. The policy decision was based upon the detailed study
of a large number of technical institutions running in the State and in
particular Hyderabad, wherein even the available seats were lying vacant,
and the addition of more seats and more colleges was bound to adversely
impact the quality of education and would make them financially unviable.
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Ultimately, the fall in the standards of education may result in the low
employability of the students. The Government had prepared a perspective
plan for technical education in the State and communicated the same to
the AICTE. The Perspective Plan had been prepared in consonance
with the provisions contained in Section 20 of the Act of 1982.
8. The High Court by the impugned judgment and order had
allowed the writ application. It has observed that grant of NOC will not
enable an institution to start a course. They have several other hurdles
to be cleared for starting D. Pharma. The High Court has held that
Regulations 5.2, 5.3 and 6 of the 2017 Regulations are valid. The vires
of the regulations has been upheld. However, the High Court held that
policy decision taken by the Government not to allow new courses to be
started is not in terms of section 20 of the Act of 1982 as the provision
does not vest power upon the Government to declare a holiday on the
ground that a lot of seats are going vacant. The High Court has observed
that in case the seats are going vacant educational institutions will
automatically shut down courses for which there is no demand. Unless
starting of a course or running of an existing course is economically
viable, no educational agency would take up the venture. That is the
concern of the educational agency and not of the Government or of the
University. The High Court has further observed that uneducated
unemployed may find a course where their energies can be channelized
and it is better to have educated unemployed rather than to have a
breed of uneducated unemployed. The perspective plan prepared by
the Government has also been considered. It has been observed that
seats remaining vacant cannot be the sole criterion for refusal of NOC.
The enrolment of students in Pharma-D has registered a marginal increase
over the years. The University has been directed to grant NOC.
Thereafter, it will be open to the AICTE and PCI to examine the
application of the petitioner for D. Pharma course and thereafter it will
be open to the University to examine with reference to its own Statutes
as to whether petitioner may be granted affiliation or not. Aggrieved by
the same, the appeal has been preferred.
9. It was submitted by the learned senior counsel appearing on
behalf of the appellant-University that there are thirty institutions which
are running pharmacy courses in the city of Hyderabad. The number of
institutions is more and it is not possible to cater to the needs of all
colleges as students are not enough. The seats remain vacant in spite of
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET [ARUN MISHRA, J.]
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the reduction in the number of seats. There is a paucity of the teachers
as well. The Government of Telangana after a detailed study has prepared
a perspective plan and has forwarded it to the AICTE requesting it not
to open new technical courses as there is a mushroom growth of the
institutions in the city of Hyderabad. Considering the perspective plan,
the decision has been taken not to grant NOC by the University in terms
of the provisions contained in section 20 of the Act of 1982 and the
Regulations of the University. The High Court has erred in law in
interfering with the policy decision of the State Government on legally
impermissible grounds.
10. Per contra, learned senior counsel on behalf of the respondent
contended that it was not open to the Government to frame such a policy
of declaring a holiday. It is for the AICTE or the PCI to take into
consideration the requirements of the area whether institutions have to
be permitted to start a new course. Mainly by the fact that some seats
have remained vacant in the course of Pharmacy, the NOC could not
have been declined. As it was for the PCI as well as the AICTE to take
into consideration the various aspects after the issuance of the NOC.
Thus, University, as well as the State Government, have exceeded their
powers. The statistics submitted are not of D. Pharma course but relates
to the other courses of pharmacy. The imposition of the moratorium for
the academic year 2018-2019 is bad in law as it would be open to the
University, after approval is granted by the AICTE and PCI, to examine
whether the institution fulfills its requirements for the purpose of grant
of affiliation. In the perspective plan, it is pointed out that there is need
to start pharmacy course as imbalance has been created by the
establishment of other technical institutions such as engineering etc. which
may not be good for the country's growth.
11. The pivotal point for consideration is whether the State
Government and the University have the power to frame a policy and to
refuse the grant of NOC to start a course in Pharmacy in the city of
Hyderabad and the decision of the State Government imposing the
moratorium for the year 2018-19 is without jurisdiction, irrational or
arbitrary.
12. Section 20 of the Act of 1982 deals with permission for the
establishment of educational institutions. Section 20(1) provides that a
competent authority shall conduct a survey as to identify the educational
needs of the locality under its jurisdiction. Section 20(3) provides that
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any educational agency applying for permission under section 20(2) shall
before the permission is granted, satisfy the authority concerned that
there is a need for providing educational facilities to the people in the
locality. Section 20 is extracted hereunder:
"[20. Permission for establishment of educational
institutions: - (1) The competent authority shall, from time to
time, conduct a survey as to identify the educational needs of the
locality under its jurisdiction and notify in the prescribed manner
through the local newspapers calling for applications from the
educational agencies desirous of establishing educational
institutions.
(2) In pursuance of the notification under sub-section (1), any
educational agency including a local authority or registered body
of persons intending to -
(a) establish an institution imparting education;
(b) open higher classes in an institution imparting primary education;
(c) upgrade any such institution into a high school; or
(d) open new courses (Certificate, Diploma, Degree, PostGraduate Degree Courses, etc.)
may make an application, within such period in such manner and
to such authority as may be notified for the grant of permission
therefor.
(3) Any educational agency applying for permission under subsection (2) shall, -
(a) before the permission is granted, satisfy the authority
concerned, -
(i) that there is a need for providing educational facilities to the
people in the locality ;
(ii) that there is adequate financial provision for continued and
efficient maintenance of the institution as prescribed by the
competent authority ;
(iii) that the institution is proposed to be located in sanitary and
healthy surroundings ;
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET [ARUN MISHRA, J.]
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(b) enclose to the application, -
(i) title deeds relating to the site for building, playground, and garden
proposed to be provided ;
(ii) plans approved by the local authority concerned which shall
conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances needed for
constructing the proposed buildings; and
(c) within the period specified by the authority concerned in the
order granting permission, -
(i) appoint teaching staff qualified according to the rules made by
the Government in this behalf ;
(ii) satisfy the other requirements laid down by this Act and the
rules and orders made thereunder failing which it shall be
competent for the said authority to cancel the permission.
(4) On and from the commencement of the Andhra Pradesh
Education (Amendment) Act, 1987, no educational institution shall
be established except in accordance with the provisions of this
Act and any person who contravenes the provisions of this section
or who after the permission granted to him under this section
having been cancelled continues to run such institution shall be
punished with simple imprisonment which shall not be less than
six months but which may extend to three years and with fine
which shall not be less than three thousand rupees but which may
extend to fifty thousand rupees :
Provided further that the Court convicting a person under this
section shall also order the closure of the institution with respect
to which the offense is committed."
(emphasis supplied)
A bare reading of the aforesaid provisions of section 20(1) makes
it clear that the survey is conducted so as to identify the educational
needs of the locality would definitely include within its ken how many
institutions are operating in the area and whether there is any further
requirement of opening educational institutions/new courses in existing
colleges, and it is also imperative under section 20(3)(a)(i) that educational
agency has to satisfy the authority that there is a need for providing
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educational facilities to the people in the locality. In case there are already
a large number of institutions imparting education in the area the
competent authority may be justified not to grant the NOC, for permitting
an institution to come up in the area.
13. The provisions contained in section 20 are wholesome and
intend not only to cater to the educational needs of the area but also
prevent the mushroom growth of the institutions/courses. In case
institutions are permitted to run each and every course that may affect
the very standard of education and may ultimately result in sub-standard
education. There is already a paucity of well-qualified teachers in a
large number of institutions and the available seats in Pharmacy course
in the Hyderabad city are remaining vacant every year in spite of the
reduction in a number of seats. It had not been possible to fill up the
available vacancies due to non-availability of students. Thus, it is apparent
that when 30 institutions in Hyderabad city are already running Pharmacy
course, the refusal to grant NOC by the University was wholly justified.
14. Apart from the provisions contained in section 20, when we
consider Regulations 5.2 and 5.3 which clearly provide that a new college
proposing to offer technical education with the University affiliation shall
first seek a NOC from the University before applying to AICTE/PCI/
any other statutory body. Regulation 5.3 provides that the permission for
starting of new programmes in the existing colleges shall be considered
by the University as per the priority/policy of the State Government if
any. Regulations 5.2 and 5.3 are extracted hereunder:
"5.2 - A new college proposing to offer technical education
with the University affiliation shall first seek a No Objection
Certificate (NOC) from the University before applying to AICTE/
PCI/other Statutory Body.
5.3 - The permission for establishing Colleges and starting of
new programs in the existing Colleges shall be considered by the
University as per the priority/policy of the state government if
any."
15. In Government of A.P. & Anr. v. J.B. Educational Society
& Anr. (supra), the Court considered the validity of section 20 of the
Act of 1982 vis-à-vis section 10 of AICTE Act of 1987 and observed
that the two provisions are not repugnant to each other and they operate
in different fields. The object and purpose of two enactments had been
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET [ARUN MISHRA, J.]
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considered by this Court and it observed that if there are more colleges
in a particular area, the State would be justified in not granting permission
to one more college in that area. Entry 25 of the Concurrent List gives
power to the State Legislature to make laws regarding education, including
technical education. The AICTE Act deals with the general power of
Parliament for coordination, determination of standards in institutions
for higher education or research and scientific and technical educational
institutions and Entry 65 of List I deals with the union agencies and
institutions. The State has the competence to pass such legislation and
Section 20 of the Act of 1982 is for the welfare of the State. The Court
observed:
"13. It is in this background that the provisions contained in the
two legislative enactments have to be scrutinized. The provisions
of the AICTE Act are intended to improve the technical education
and the various authorities under the Act have been given exclusive
responsibility to coordinate and determine the standards of higher
education. It is a general power given to evaluate, harmonize and
secure proper relationship to any project of national importance.
Such a coordinate action in higher education with a proper standard
is of paramount importance to national progress. Section 20 of
the AP Act does not in any way encroach upon the powers of the
authorities under the Central Act. Section 20 says that the
competent authority shall, from time to time, conduct a survey to
identify the educational needs of the locality under its jurisdiction
notified through the local newspapers calling for applications from
the educational agencies. Section 20(3)(a)(i) says that before
permission is granted, the authority concerned must be satisfied
that there is a need for providing educational facilities to the people
in the locality. The State authorities alone can decide about the
educational facilities and needs of the locality. If there are more
colleges in a particular area, the State would not be justified in
granting permission to one more college in that locality. Entry 25
of the Concurrent List gives power to the State Legislature to
make laws regarding education, including technical education. Of
course, this is subject to the provisions of Entry 63, 64, 65 and 66
of List I. Entry 66 of List I to which the legislative source is
traced for the AICTE Act deals with the general power of the
Parliament for coordination, determination of standards in
institutions for higher education or research and scientific and
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technical educational institutions and Entry 65 deals with the union
agencies and institutions for professional, vocational and technical
training, including the training of police officers, etc. The State
has certainly the legislative competence to pass the legislation in
respect of education including technical education and Section 20
of the Act is intended for the general welfare of the citizens of the
State and also in discharge of the constitutional duty enumerated
under Article 41 of the Constitution.
14. The general survey in various fields of technical education
contemplated under Section 10(1)(a) of the AICTE Act is not
pertaining to the educational needs of any particular area in a
State. It is a general supervisory survey to be conducted by the
AICTE Council, for example, if any IIT is to be established in a
particular region, a general survey could be conducted and the
Council can very much conduct a survey regarding the location
of that institution and collect data of all related matters. But as
regards whether a particular educational institution is to be
established in a particular area in a State, the State alone would
be competent to say as to where that institution should be
established. Section 20 of the AP Act and Section 10 of the Central
Act operate in different fields and we do not see any repugnancy
between the two provisions.
21. The educational needs of the locality are to be ascertained
and determined by the State. Having regard to the regulations
framed under the AICTE Act, the representatives of the State
have to be included in the ultimate decision-making process and
having regard to the provisions of the Act, the Writ Petitioners
would not in any way be prejudiced by such provisions in the A.P.
Act. Moreover, the decision, if any, taken by the State authorities
under Section 20(3)(a)(i) would be subject to judicial review and
we do not think that the State could make any irrational decision
about granting permission. Hence, we hold that Section 20(3)(a)(i)
is not in any way repugnant to Section 10 of the AICTE Act and
it is constitutionally valid."
16. In view of the aforesaid decision, the High Court has erred in
law in holding that it was not permissible for the State Government to
frame such a policy and the University was bound to issue NOC. The
decision of the High Court runs to the contrary, ignores and overlooks
the law laid down in the said decision.
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET [ARUN MISHRA, J.]
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116 SUPREME COURT REPORTS [2018] 14 S.C.R.
17. The Government of Telangana vide its communication dated
29.11.2016 to the AICTE had communicated the views of the State
Government regarding AICTE approval for the establishment of
educational institutions for the session 2017-18. After discussing the
matter by the Director of Technical Education, Vice-Chancellor of the
University and State Council of Higher Education the State Government
had expressed serious concern at the proliferation and establishment of
technical institutions and the unprecedented expansion in the intake in all
the courses offered by all the technical institutions coming within the
purview of AICTE. Data was given in the tabular form including that of
the Pharmacy. It was pointed out that in the year 2015-16 sanctioned
intake in Pharmacy was 11490, seats remained vacant were 4035, in
academic session 2016-17 sanctioned intake was 9226, seats vacant
were 1892.
18. The AICTE Act, 1987 defines technical education in
section 2(g) to mean programmes of education inter alia in Pharmacy
also. There is no provision in the said Act to the contrary to curtail the
power of the State as well as of University. The AICTE has framed the
Regulations under the Act of 1987 in the exercise of the power conferred
under section 23(1) read with sections 10 and 11 of the Act of 1987
called the All India Council for Technical Education (Grant of approvals
for the Technical Institutions) Regulations, 2016. The technical institution
is required to seek prior approval of the Council as provided in Regulation
4.2. Regulation 4.18 provides that the State Government/UT
Administration and the Affiliating University/Board, as the case may be,
shall forward their views along with the perspective plan of the State
and then the application shall be processed for grant of approval.
Regulation 4.18 is extracted hereunder:
"4.18 The State Government/UT Administration and the
Affiliating University/Board shall forward their views on the
applications received under Clause 4.1 as applicable, with valid
reasons along with the perspective plan of the State, within a period
of 21 days from the date of receipt of applications which shall be
taken into account by the Regional Committee for further
processing for grant of approval. If the application is not processed
further, the processing fee after a deduction of 50000/- (Rupees
Fifty thousand only) shall be refunded to the applicant.
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If the views of the State Government/UT Administration and the
Affiliating University/Board are not received within a prescribed
time schedule as mentioned in the Approval Process Handbook, it
shall be presumed that they do not have any objection and the
Council shall proceed further for processing of applications.
However, the Council shall consider the previous communications,
if any, received from the State Government/UT administration,
the Affiliating University/Board against any Institutions."
(emphasis supplied)
19. Regulation 4.18 cannot be said to be repugnant to Regulations
5.2 and 5.3 of the University, and there is no repugnancy in AICTE Act
and section 20 of the Act of 1982 as observed by this Court in Government
of A.P. & Anr. v. J.B. Educational Society & Anr. (supra). The
perspective plan had been prepared by the State of Telangana for 201819. In the perspective plan the State Government has pointed out the
abstract of courses and seats in the existing engineering colleges for the
academic year 2017-18 and it was mentioned that there was an imbalance
of seats. Following is the extract relied upon by the respondents:
"A perusal of the above Table reveals the fact that the four
programmes viz. Information Technology, Computer Science and
Engineering, Electronics and Communication Engineering and
Electrical and Electronics Engineering together account for 83,290
seats of the total Intake of 1,26,855 seats. This accounts for nearly
66% of the seats and rests account for about 43,565 seats, which
is 34% of the total intake. This lopsided priority will, in the long
run, have an adverse effect on the growth of infrastructure in the
country with its attendant consequences.
This imbalance needs to be corrected on a priority basis so that
the manufacturing and other sectors do not suffer. The courses
on demand related to latest Technologies and needs of the Industry
such as Mining, Textile, Pharmacy, Automobile, Aviation Civil
Engineering, and Construction Technology and hence their
enhancement in Intake may be considered in the State, while
keeping in view of the 14 Thrust Areas as mentioned in Para 5,
Page 14 of this Plan. This is also keeping in view that the Pharma
city, Textile hub, Fabcity, ITIR, IT Hubs, etc. are emerging in
Telangana State."
JAWAHARLAL NEHRU TECHNOLOGICAL UNIV. v. SANGAM
LAXMI BAI VIDYAPEET [ARUN MISHRA, J.]
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At the same time in the conclusions and recommendations made
by the Government in perspective plan, it has been pointed out that AICTE
may declare a holiday on the establishment of new technical institutions
for the academic year 2018-19. This holiday applies not only to the
establishment of new engineering colleges but may also be extended
inter alia to B-Pharmacy institutions. It was also pointed out that in case
the Pharmacy Council of India has not accorded the approval, AICTE
should not grant approval to the Pharmacy colleges. It was inter alia
mentioned in the recommendations that new programmes may be
sanctioned in Mining, Granite, Textile, Pharmacy, Automobile etc. based
on "new technologies". However, it was not the case, that course would
be based on new technology. Following is the relevant extract of the
conclusions and recommendations made by the State:
"6. CONCLUSIONS & RECOMMENDATIONS
Thus, the various concerns that arise from all the above data are
summarized below for the consideration of the All India Council
of Technical Education:-
Is su e
R ecom mendation
•
Th e A ICTE has been sanctio nin g the
Col leges rou tinel y every year w itho ut
act ually as sessin g the 'N eed' of the
State. W ith a m as sive n um ber o f su ch
Col leges establish ed in the State, th ere
is a s ev ere s hortage of q ualified
Teachi ng faculty , wh ich is s erious ly
affecting the Qu ality o f Ed ucatio n
offered by man y o f these i nstit utio ns.
Mo reo ver, it is ob serv ed th at a large
nu mb er of seats are falling vacant
every year as the to tal nu mb er of seats
availabl e is far mo re th an the tak ers.
D uring the y ear 2 01 6-17 for i nstance,
there are ab out 32 784 seats an d d urin g
20 17-1 8, there are 2 9367 seats that
rem ained vacan t i n the E ngin eerin g
cou rse (b as ed on the affili ati ons ).
W ith p oo r adm issi ons , th e 'fin ancial
viability' in running several col leges is
becom in g a prob lem and thu s m akin g
Col leges to offer po or Q uality of
Ed ucatio n,
w hich
is
totally
un desirabl e.
In
fact,
in
several
Col leges, the ad mis sion s d urin g last
year an d this year in Engin eerin g an d
MC A program mes are ju st sin gle
digits. T his situ ati on has l ed to an
un healthy
com petition
amo ng
the
Col leges for admi ssions b y w oo in g the
stu dents
wi th
all
so rts
o f
false
prom ises. This i s hig hly harmful to the
Pro fes sio nal Educati onal Sy stem in
the State.
•
T he A IC TE may thus declare a ho liday
on th e es tablis hm ent of N ew T echn ical
In stit utio ns from th e Acad emic Y ear
20 18 -1 9. Th e h olid ay app lies n ot o nly
w ith reg ard to the estab lishm ent of N ew
E ngineering C olleg es in the State bu t
may also b e extended to B.Pharm acy ,
M BA/M CA Institu tio ns."
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"OTHER RECOMMENDATIONS
In view of all the above and to improve the Quality of Education
in Private, Unaided Colleges in the State of Telangana, it is
recommended that:
• New Programmes may be sanctioned such as Mining, Granite,
Textile, Pharmacy, Automobile, Civil Eng. Construction Technology
based on New Technologies and the needs of the Industry keeping
in view the 14 Thrust Areas mentioned in Para 5 of Page 14 of
this Plan."
20. Admittedly it is not a case of new technology to be adopted
for the proposed course of D-Pharma by the college in question. Thus,
the State had put up a moratorium for Pharmacy courses also. It is
significant to note that in the conclusions and recommendations, it was
observed that AICTE had permitted imbalanced growth of the institutions
in the area which could be avoided. In fact, we see that such an expert
body often ignores such relevant factors which makes action arbitrary.
21. The decision taken by the State Government to impose a
moratorium as apparent from facts reflected in perspective plan is based
on a survey and supported by the data. Considering the fact that seats
are going abegging. Even in 2017-18 in the Pharmacy course, data has
been given in the SLP that among 56 colleges affiliated to the University,
30 were in the city of Hyderabad and out of total 1630 seats, 173 had
remained vacant. Thus, it is apparent that a large number of seats
remained vacant. Not more than 30 seats can be allotted to one institution.
In the circumstances, the observation of the High Court that it was for
the institution to worry and consider the viability and it was not for the
University or State Government to take same into consideration, is
completely a flimsy and impermissible reason employed. The mushroom
growth of educational institutions cannot be permitted.