Visveswaraiah Technological University vs Krishnendu Halder

Visveswaraya Technological University & Anr. ... Appellants

Vs.

Krishnendu Halder & Ors. ... Respondent

With

Civil Appeal No. 1948 of 2011

[Arising out of SLP [C] No.13048/2010]

The Registrar, Visveswaraya Technological University

& Anr. ... Appellants

Vs.

Shinde Ajinkya Tanagi & Ors. ... Respondent

O R D E R

R.V. RAVEENDRAN J.

Leave granted. Heard. The question involved in these appeals is

whether the eligibility criteria for admission to the Engineering courses

stipulated under the Statutory Rules and Regulations of the State

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Government/University could be relaxed or ignored, and candidates who do

not meet with such eligibility criteria can be given admission, on the ground

that a large number of seats have remained unfilled in professional colleges,

if such candidates possess the minimum eligibility prescribed under the

norms of the central body (AICTE).

2. All India Council for Technical Education (`AICTE' for short) is the

council established under the All India Council for Technical Education Act,

1987 (`AICTE Act' for short) for proper planning and co-ordinated

development of technical education throughout the country. AICTE is

entrusted the function of laying down the norms and standards for courses,

curricula, quality instructions, assessment and examinations. As per the

norms fixed by AICTE, the minimum eligibility for admission to

engineering courses, during the academic year 2007-2008 was 35% in the

qualifying examinations in Physics, Chemistry and Mathematics for

candidates belonging to schedule castes and schedule tribes and 40% for all

other candidates.

3. The appellant - Visveswaraya Technological University (for short `the

University') is the examining body and affiliating authority for Technical

Educational Institutions in the State of Karnataka established under the

3 Visveswaraya Technological University Act,1994 (`VTU Act' for short).

Section 20(1) of the VTU Act empowers the Executive Council of the

University to make regulations regarding admission of students and conduct

of examinations. The Executive Council, on the recommendation of the

Academic Senate resolved to recommend the fixing of minimum eligibility

for admissions to B.E./B.Tech courses as 45% for general category and 40%

for reserved category in the qualifying examination, from the academic year

2006-07, on the following reasoning :

"The eligibility for the students for admission to B.E.course was 50% in

the qualifying examination up to the academic year 2002-03. As the

admission are through the Common Entrance Test of the Government or a

Common Management Admission Test, the AICTE relaxed the eligibility

criteria to 35% from the year 2003-04 onwards. Many colleges

represented to the University that the lowering of the eligibility criteria

gave scope for less meritorious students to get into the professional

courses leading to deterioration in first and second year examination

results. Many of the students were finding it difficult even to obtain the

eligibility for the third semester. In view of it, in order to improve the

standards of engineering degree course by providing admission to such of

the students who can withstand the stress of the professional courses, it is

necessary to fix the minimum eligibility as 45% in the qualifying

examination for general category candidates and 40% in the qualifying

examination for reserved category candidates, from the academic year

2006-07."

Consequently the University Regulations governing BE/B.Tech degree

courses were amended and the amended Regulations are extracted below:

"O.B.2.1 Admission to first year, first semester bachelor degree in

Engineering/Technology shall be open for the candidates who have passed

the second year Pre-University or XII Standard or equivalent examination

recognized by the University.

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O.B.2.2 In addition to OB 2.1, the candidate shall have secured not

less than forty five percent (45%) marks in the aggregate with Physics and

Mathematics as compulsory subjects, along with one of the following

subjects: Chemistry, Bio-Technology, Computer Science, Biology and

Electronics.

Provided that, the minimum marks for the purpose of eligibility shall be

forty percent (40%) in optional subjects in case of candidates belonging to

SC/ST and OBC.

Provided that, the candidate shall have studied and passed English as one

of the subjects."

Thus the University fixed a marginally higher eligibility criteria, that is 40%

for candidates belonging to schedule castes and schedule tribes and 45% for

others, as against 35% and 40% respectively suggested by the AICTE

norms.

4. The Karnataka Selection of Candidates for Admission to Government

Seats in Professional Educational Institution Rules, 2006, published by the

State Government, vide notification dated 28.2.2006, which was applicable

to the selection of candidates for admission to professional educational

courses including Bachelor of Engineering/Technology (filled by the

Common Entrance Cell) also prescribed similar academic eligibility for

admissions during 2007-2008. Relevant portions of Rule 3 thereof are

extracted below:

5 "3. Academic Eligibility (1) No candidate shall be eligible for

admission to any of the full time degree courses specified in sub-rule (3)

of Rule 1 other than the degree course in Architecture unless he :-

(a) has appeared for the Common Entrance Test conducted by the

Common Entrance Test cell.

(b) has passed the second year pre-University or XII standard or

equivalent examinations held preceding the Entrance test---

xxx xxx xxx

(iii) with Physics and Mathematics as compulsory subjects, along with

one of the following subjects:- Chemistry, Bio-Technology, Computer

Science, Biology and Electronics and has secured not less than forty five

percent of the aggregate marks in optional subjects with English as one of

the languages for admission to Engineering, and technology courses.

xxx xxx xxx

Provided further that, the minimum marks for the purpose of eligibility

shall be forty percent of aggregate in optional subjects in case of

candidates belonging to the Scheduled Caste, Scheduled Tribes and other

Backward Classes specified in the relevant Government order for the

purpose of reservation in respect of Indian system of Medicine and

Homeopathy, Engineering and Technology courses."

The above eligibility criteria prescribed for admission to `Government seats'

under Rule 3 of the Admission Rules did not however apply to candidates

admitted directly by the managements of colleges.

5. The respective first respondent in these two appeals secured marks

which were more than what was prescribed by AICTE norms, but less than

what was prescribed by the University Regulations. They were admitted to

the Bachelor of Engineering Course during the academic year 2007-2008 by

second respondent college in C.A.No.1947/2011 and third respondent

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college in C.A.No.1948/2011 under the management quota. When the list of

admissions were submitted by the said colleges to the University for

approval of admissions, the University refused to approve their admissions

on the ground that they had secured less than the minimum percentage

required for being eligible to admissions. Feeling aggrieved, the two

students filed writ petitions before the High Court for quashing the

communications of the University refusing to approve their admission, to

treat them as eligible for prosecuting the B.E course and to approve their

admission and permit them to participate in the examinations conducted by

the University. They also sought a declaration that AICTE norms prescribing

eligibility criteria alone would govern admissions to B.E. course and the

Rules and Regulations of the State and the University, in so far as they were

contrary to AICTE Regulations were unconstitutional, unenforceable and

inapplicable.

6. A learned single judge of the High Court, following the decision of

this Court in State of Tamil Nadu v. S.V. Bratheep -- (2004) 4 SCC 513,

dismissed the writ petition filed by the first respondent in the first matter, by

order dated 24.6.2008. The writ appeal filed by the said student, as also the

writ petition filed by the first respondent in the second matter were allowed

by the Division Bench of the High Court by judgments dated 26.2.2010

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purporting to follow the principles laid down by this Court in State of Tamil

Nadu v. Adhiyaman Educational & Research Institute -- (1995) 4 SCC 104

(extracted below) :

"41. [v] When there are more applicants than the available

situations/seats, the State authority is not prevented from laying down

higher standards or qualifications than those laid down by the center or

the Central authority to short-list the applicants. When the State authority

does so, it does not encroach upon Entry 66 of the Union List or make a

law which is repugnant to the Central law.

41. [vi] However, when the situations/ seats are available and the State

authorities deny an applicant the same on the ground that the applicant is

not qualified according to its standards or qualifications, as the case may

be, although the applicant satisfies the standards or qualifications laid

down by the Central law, they act unconstitutionally.

(emphasis supplied)

The Division Bench directed that every year, the University should take into

consideration, the standards it has fixed as also the standards fixed by

AICTE in regard to eligibility criteria, and keeping in view the number of

seats that may remain unfilled/vacant during that year, extend benefit to the

students who fulfill the conditions mentioned in para 41(v) and (vi) of the

decision in Adhiyaman, by voluntarily relaxing/lowering its standards

without driving the students to approach the courts for getting reliefs in

terms of Adhiyaman. The Division Bench also held that having regard to the

decision in Adhiyaman, students who are similarly situated to the writ

petitioners, should also be given benefit by approval of their admissions

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without driving them to court. The Division Bench directed the University to

approve the admissions of the two writ petitions as they fulfilled eligibility

criteria fixed by AICTE.

7. Feeling aggrieved, University has filed these appeals by special leave

contending that the University and the State are always entitled to prescribe

higher standards than what is suggested by the AICTE norms so as to

maintain the excellence in higher education; that the rules and regulations of

the State and University prescribing minimum higher educational

qualifications for admission to Engineering Courses, were valid and binding;

and that neither any constituent college nor any candidate could support or

defend an illegal and irregular admission by the college, by contending that

the rules and regulations of the State and the University were invalid and not

binding, or that the University should not apply them, as there are more seats

than applicants.

8. We may in this context refer to two subsequent decisions which have

the effect of clarifying the decision in Adhiyaman.

8.1) In Dr Preeti Srivastava and Anr. Vs. State of M.P. and Ors. (1999) 7

SCC 120, a constitution bench of this court held:

9 "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. Therefore, while prescribing the criteria for admission to the

institutions for higher education including higher medical education, the

State cannot adversely affect the standards laid down by the Union of

India under Entry 66 of List-I. Secondly, while considering the cases on

the subject it is also necessary to remember that from 1977, education

including, inter alia, medical and university education, is now in the

Concurrent List so that the Union can legislate on admission criteria also.

If it does so, the State will not be able to legislate in this field, except as

provided in Article 254..............

It would not be correct to say that the norms for admission have no

connection with the standard of education, or that the rules for admission

are covered only by Entry 25 of List III. Norms of admission can have a

direct impact on the standards of education. Of course, there can be rules

for admission which are consistent with or do not affect adversely the

standards of education prescribed by the Union in exercise of powers

under Entry 66 of List I. For example, a State may, for admission to the

postgraduate medical courses, lay down qualifications in addition to those

prescribed under Entry 66 of List I. This would be consistent with

promoting higher standards for admission to the higher educational

courses. But any lowering of the norms laid down can and does have an

adverse effect on the standards of education in the institutes of higher

education."

(emphasis supplied)

8.2) In State of Tamil Nadu. Vs. S.V. Bratheep (2004) 4 SCC 513 wherein,

a three Judge Bench of this Court followed Dr.Preeti Srivastava and

explained Adhiyaman thus:

"If higher minimum is prescribed by the State Government than what had

been prescribed by the AICTE, can it be said that it is in any manner

adverse to the standards fixed by the AICTE or reduces the standard fixed

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by it? In our opinion, it does not.........The manner in which the High

Court has proceeded is that what has been prescribed by AICTE is

inexorable and that that minimum alone should be taken into consideration

and no other standard could be fixed even higher as stated by this Court in

Dr. Preeti Srivastava's case. It is no doubt true, as noticed by this Court in

Adhiyaman's case that there may be situations when a large number of

seats may fall vacant on account of the higher standards fixed. The

standards fixed should always be realistic which are attainable and are

within the reach of the candidates. It cannot be said that the prescriptions

by the State Government in addition to those of AICTE in the present case

are such which are not attainable or which are not within the reach of the

candidates who seek admission for engineering colleges..... Excellence in

higher education is always insisted upon by series of decisions of this

Court including Dr. Preeti Srivastava's case. If higher minimum marks

have been prescribed, it would certainly add to the excellence in the

matter of admission of the students in higher education.

Argument advanced on behalf of the respondents is that the purpose of

fixing norms by the AICTE is to ensure uniformity with extended access

of educational opportunity and such norms should not be tinkered with by

the State in any manner. We are afraid, this argument ignores the view

taken by this Court in several decisions including Dr. Preeti Srivastava

case that the State can always fix a further qualification or additional

qualification to what has been prescribed by the AICTE and that

proposition is indisputable. The mere fact that there are vacancies in the

colleges would not be a matter, which would go into the question of fixing

the standard of education. Therefore, it is difficult to subscribe to the view

that once they are qualified under the criteria fixed by AICTE they should

be admitted even if they fall short of the criteria prescribed by the State.

One other argument is further advanced before us that the criteria fixed by

the AICTE were to be adopted by the respective colleges and once such

prescription had been made, it was not open to the Government to

prescribe further standards particularly when they had established the

institutions in exercise of their fundamental rights guaranteed under

Article 19 of the Constitution. However, we do not think this argument

can be sustained in any manner. Prescription of standards in education is

always accepted to be an appropriate exercise of power by the bodies

recognising the colleges or granting affiliation, like AICTE or the

University. If in exercise of such power the prescription had been made, it

cannot be said that the whole matter has been foreclosed.

(emphasis supplied)

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9. The object of the State or University fixing eligibility criteria higher

than those fixed by AICTE, is two fold. The first and foremost is to maintain

excellence in higher education and ensure that there is no deterioration in the

quality of candidates participating in professional Engineering courses. The

second is to enable the State to shortlist the applicants for admission in an

effective manner, when there are more applicants than available seats. Once

the power of the State and the Examining Body, to fix higher qualifications

is recognized, the rules and regulations made by them prescribing

qualifications higher than the minimum suggested by AICTE, will be

binding and will be applicable in the respective state, unless the AICTE

itself subsequently modifies its norms by increasing the eligibility criteria

beyond those fixed by the University and the State. It should be noted that

the eligibility criteria fixed by the State and the University increased the

standards only marginally, that is 5% over the percentage fixed by AICTE.

It cannot be said that the higher standards fixed by the State or University

are abnormally high or unattainable by normal students, so as to require a

downward revision, when there are unfilled seats. During the hearing it was

mentioned that AICTE itself has revised the eligibility criteria. Be that as it

may.

12 10. The respondents (colleges and the students) submitted that in that

particular year (2007-2008) nearly 5000 engineering seats remained unfilled.

They contended that whenever a large number of seats remained unfilled, on

account of non-availability of adequate candidates, para 41(v) and (vi) of

Adhiyaman would come into play and automatically the lower minimum

standards prescribed by AICTE alone would apply. This contention is liable

to be rejected in view of the principles laid down in the Constitution Bench

decision in Dr. Preeti Srivastava and the decision of the larger Bench in S.V.

Bratheep which explains the observations in Adhiyaman in the correct

perspective. We summarise below the position, emerging from these

decisions :

(i) While prescribing the eligibility criteria for admission to institutions

of higher education, the State/University cannot adversely affect the

standards laid down by the Central Body/AICTE. The term `adversely affect

the standards' refers to lowering of the norms laid down by Central

Body/AICTE. Prescribing higher standards for admission by laying down

qualifications in addition to or higher than those prescribed by AICTE,

consistent with the object of promoting higher standards and excellence in

higher education, will not be considered as adversely affecting the standards

laid down by the Central Body/AICTE.

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(ii) The observation in para 41(vi) of Adhiyaman to the effect that where

seats remain unfilled, the state authorities cannot deny admission to any

student satisfying the minimum standards laid down by AICTE, even though

he is not qualified according to its standards, is not good law.

(iii) The fact that there are unfilled seats in a particular year, does not

mean that in that year, the eligibility criteria fixed by the State/University

would cease to apply or that the minimum eligibility criteria suggested by

AICTE alone would apply. Unless and until the State or the University

chooses to modify the eligibility criteria fixed by them, they will continue to

apply in spite of the fact that there are vacancies or unfilled seats in any

year. The main object of prescribing eligibility criteria is not to ensure that

all seats are in colleges are filled, but to ensure that excellence in standards

of higher education is maintained.

(iv) The State/University (as also AICTE) should periodically (at such

intervals as they deem fit) review the prescription of eligibility criteria for

admissions, keeping in balance, the need to maintain excellence and high

standard in higher education on the one hand, and the need to maintain a

healthy ratio between the total number of seats available in the state and the

number of students seeking admission, on the other. If necessary, they may

revise the eligibility criteria so as to continue excellence in education and at

the same time being realistic about the attainable standards of marks in the

qualifying examinations.

11. The primary reason for seats remaining vacant in a state, is the

mushrooming of private institutions in higher education. This is so in several

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states in regard to teachers training institutions, dental colleges or

engineering colleges. The second reason is certain disciplines going out of

favour with students because they are considered to be no longer promising

or attractive for future career prospects. The third reason is the bad

reputation acquired by some institutions due to lack of infrastructure, bad

faculty and indifferent teaching. Fixing of higher standards, marginally

higher than the minimum, is seldom the reason for seats in some colleges

remaining vacant or unfilled during a particular year. Therefore, a student

whose marks fall short of the eligibility criteria fixed by the

State/University, or any college which admits such students directly under

the management quota, cannot contend that the admission of students found

qualified under the criteria fixed by AICTE, should be approved even if they

do not fulfil the higher eligibility criteria fixed by the State/University.

12. The proliferating unaided private colleges, may need a full

complement of students for their comfortable sustenance (meeting the cost

of running the college and paying the staff etc.). But that cannot be at the

risk of quality of education. To give an example, if 35% is the minimum

passing marks in a qualifying examination, can it be argued by colleges that

the minimum passing marks in the qualifying examination should be

reduced to only 25 or 20 instead of 35 on the ground that the number of

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students/candidates who pass the examination are not sufficient to fill their

seats? Reducing the standards to `fill the seats' will be a dangerous trend

which will destroy the quality of education. If there are large number of

vacancies, the remedy lies in (a) not permitting new colleges; (b) reducing

the intake in existing colleges; (c) improving the infrastructure and quality of

the institution to attract more students. Be that as it may. The need to fill the

seats cannot be permitted to override the need to maintain quality of

education. Creeping commercialization of education in the last few years

should be a matter of concern for the central bodies, states and universities.

13. No student or college, in the teeth of the existing and prevalent rules

of the State and the University can say that such rules should be ignored,

whenever there are unfilled vacancies in colleges. In fact the

State/University, may, in spite of vacancies, continue with the higher

eligibility criteria to maintain better standards of higher education in the

State or in the colleges affiliated to the University. Determination of such

standards, being part of the academic policy of the University, are beyond

the purview of judicial review, unless it is established that such standards are

arbitrary or `adversely affect' the standards if any fixed by the Central Body

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under a Central enactment. The order of the Division Bench is therefore

unsustainable.

14. We, therefore, allow these appeals, set aside the orders of the Division

Bench and uphold the dismissal of the writ petitions by the learned Single

Judge. Insofar as the two students (first respondent in each of the two

appeals) are concerned, we find that they were admitted in the year 2007-

2008 and by virtue of the interim orders, continued their studies and are

completing the course in a few months. On the facts and circumstances, to

do complete justice, we are of the view that their admissions should not be

disturbed, but regularized and they should be permitted to take the

examinations.

.........................................J.

[ R.V. RAVEENDRAN ]

NEW DELHI ...... ....................................J.

FEBRUARY 18, 2011 [ A.K. PATNAIK ]