BAIRAGI CHARAN NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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, 1956 and imparting education in professional courses; and two Technical Colleges seeking following reliefs:

(2.) UGC and AICTE have filed their statement of counter traversing the petitioners' averments.

(3.) LEARNED counsel on behalf of the opp.party No.5 has placed strong reliance upon the judgment of the Supreme Court in the case of Bharathidasan University and Anr. v. All -India Council for Technical Education and Ors., 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 a 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 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 a "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". 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 - -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 :