Full Text
HIGH COURT OF DELHI
Dale of Decision. 7111 Oclober, 2013.
-i- LPA 715/2013 FEDERATION OF ASSOCIATIONS OF
MANAGEMENTS OF UNAIDED PROF1i S SIONAL EI)UCATIONAL IN STJT[ JTI ON S IN INDIA .....Appellant
Through: Mr.Rorny Chacko, Adv.
Through: Mr.Rakesh l)wivedi, Sr.Adv. with Mr.Arnitesh Kumar, Adv. for A1CTE.
Mr.Joginder Sukhija, Adv. with Mr.Yogcsh Yogi, Adv. for R-2.
HONBLE MR. JUSTICE MANMOHAN CHIEF JUSTICE ('Oral):-
The appellant has filed this appeal aggrieved by the order of the learned Single Judge dismissing the writ petition filed by them. The appellant Federation is registered under the Societies Registration Act and consists of unaided professional colleges which conduct MBA courses.
The appellant is aggrieved by the notification issued by the respondent No.1 /A1CTE prescribing Common Management Admission Test
(CMAT) for the year 2014-15 to regulate admissions in all management programmes. The respondent No.1 conducts national level test twice a year for facilitating institutions to select suitable students for admission in all management programmes approved by A1CTE. As per the handbook 20 13-
LP,4 No. 715/2013 /'oge 1 o/ 7 .4.
2013:DHC:8533-DB 14 of the respondent No.1 'for admission to MBA and similar courses, candidate will be required to qualify in the GMAT conducted by the respondent No.1.
The learned Single Judge after hearing the arguments disposed of the writ petition with a direction that it is not obligatory for the institutes granting MBA Degree to make admissions to the said course only on the basis of GMAT examination held by AICTE. However, the learned Single
Judge directed that if any State decides to adopt GMAT for the purpose of regulating admissions to the MBA Degree course, that would not be illegal.
Similarly if any University which awards MBA Degree wants to adopt
GMAT for the purpose of admissions in the institutions affiliated to the said
University or the institutions which are constituent of such a University, that also would not be illegal, adopting GMAT being optional in nature. The learned Single Judge clarified that if any State has in its wisdom decided to adopt GMAT for regulating admission in the concerned State in MBA
Degree course, such an action on the part of the State would not be illegal.
Before us, learned counsel appearing for the appellant relying upon the
JUDGMENT
Colleges Vs. All India Council for Technical Education & Ors., 2013 (6)
SCALE 349 contends that even the learned Single Judge has not given any reason for not following the aforesaid judgment. Relying upon the said judgment, learned counsel submits that the issue involved in the writ petition is no longer res integra as the Supreme Gourt in the aforesaid judgment has held that MBA course is not a technical course within the definition of
AIGTE Act and consequently AIGTE has no jurisdiction to regulate or control MBA courses conducted by the members of the appellant
LPA No, 715/20/3 Page 2 of7 Federation. Consequently, he submits that AICTE has no authority to supervise the admission of MBA course.
Learned counsel for the appellant further made a submission that the so-called regulations which were relied upon by the AICTE
, were not placed before the Parliament, hence, they are of no legal value.
Learned standing counsel appeared for respondent No. I and submitted that the aforesaid Supreme Court judgment had no application.
He also contended that the petitioner had not revealed as to how many colleges are affiliated to the appellant Federation.
Consequently, we directed the petitioner on the last date of hearing to file an affidavit and place on record list of colleges affiliated to the
Federation and who were the members of the Federation. 'i'hereafter the appellant has filed the said list.
Learned senior counsel for respondent No.] today submits that the aforesaid Supreme Court judgment is per incuriani as the issue whether
MBA Course was a technical education did not arise in the said matter. He further states that in another matter, the Supreme Court has already issued notices hence, there is no reason to follow the said.] udgment.
After hearing the arguments, we have perused the judgment of the
Supreme Court in Association of Management of Fyi. Colleges 6Supra) wherein the following issues had been framed:
"(1) Whether the colleges affiliated to a university comes within the purview of exclusion of the definition of
"Technical Institution" as defined under Section 2(h) of the AICTE Act, 1987?
L/'A No. 7/5/20/3 Poge3 0117 'S
(2) Whether the AiC'l'E has got the control and supervision upon the affiliated colleges of the respective universities of the member colleges of the Appellant in C.A. NO. 1 145/2004 and the Appellants in connected appeals? xxx xxx xxx Whether the Regulation 8(c) and 8(iv) by way of amendment in the year 2000 inserting the words 'MBA and MCA' before Architecture and IJotel Management courses is applicable to the concerned colleges of the Appellants? Whether non placement of the amended Regulations before 1-louses of the Parliament as required under Section 24 of the AICTE Act is vitiated in law?"
10. While dealing with these issues, it was observed by the Supreme Court as under:- "40. A reading of the aforesaid paragraphs extracted from TMA Pai case makes it very clear that in view of decision of the eleven Judges Constitution Bench of this Court, the scheme framed under the Un;ii Krishnans cas e has been overruled. Therefore, the autonomy of the university is recognized in the said case and the object and intendment of the Parliament in excluding the universities from the definition of technical institution as defined under Section 2(h) of the AIC'i'E Act makes is explicitly clear, after scanning the definition of education institution with reference to the exclusion of universities and Sections 10, 11, 12 and 13 of the AIC1'k Act. The object of the statutory enactment made by the Parliament has been succinctly examined by this Court in l3harathidasan University and Parshvanath Charitable Trust cases referred to supra therefore they have rightly made observations that the role of the AICTE Act in view of the UGC Act and the powers and functions conferred by the UGC for controlling and regulating the universities and its affiliated colleges has been explicitly conferred upon the IJGC. hence, they have been given the power to regulate such universities and Regulations in LPA No. 7/5.20/3 Page 4 i;t 7 i ) relation to granting sanctions/approvals and also maintaining educational standards and over-seeing the prescription of the fee structure including the admission of students in various courses and programmes that will be conducted by the university and its institutions, constituent colleges, units and the affiliated colleges. Therefore, we have to hold that the l3harathidasan University case (supra) on all fours be applicable to the fact situation of these appeals and we have to apply the said principle in the cases in hand whereas in the decisions of Adhiyainan Education and Research Institute case and Jaya Gokul Education Trust's case (supra) this Court has not examined the cases from the aforesaid perspective. Therefore, the same cannot be applied to the fact situation. The reliance placed upon those judgments by the learned senior counsel on behalf of the AJCTE is misplaced. Accordingly, point Nos. 1 and 2 are answered in favour of the Appellants." xxx xxx xxx As per definition of 'technical education' under Section 2(g) of the AICTE Act and non production of any material by the AICTE to show that MBA course is a technical education, we hold that MBA course is not a technical course within the definition of the AICTE Act and in so far as reasons assigned for MCA course being 'technical education', the same does not hold for MBA course. Therefore, for the reasons assigned while ansivering the points which are framed in so far as the MCA course is concerned, the approval from the AICTE is not required for obtaining permission and running MBA course by the Appellant colleges......In view of the above said decision, not placing the amended Regulations on the floor of the I louses of Parliament as required under Section 24 of the AICTE Act vitiates the amended Regulations in law and hence the submissions made on behalf of the Appellants in this regard deserve to be accepted. Accordingly, point Nos. 4 and 5 are answered in favour of the Appellants. LI'A No.715.'20/3 I'age 5 of 7 ii. The aforesaid judgment, taking into consideration the earlier judgment in Bharaihidasan Universily & Anr. 1Kv.
AICTE & Ors. (2001) 8 SCC 676 and Parashavanath Charitable Trust & ()rs. 1Kv. AJC7'E (2013) 3 SCC 385, held that in view of the UGC Act, the powers and functions for controlling and regulating the universities and its affiliated colleges has been explicitly conferred upon the IJGC. It also observed that it is for the university and its institutions, constituent colleges, units and the affiliated colleges to regulate the admission process. The Supreme Court also gave a finding that as per the definition under Section 2(g) of the AICTE Act, the MBA course is not a technical course and therefore, the approval from the AICTE is not required for obtaining permission and running MBA course. Consequently, it is clear from the above said findings of the Supreme Court that AICTE has no role to play either in admission process or in subsequent monitoring of the said course. Flence, this issue is conclusively settled by the Supreme Court in the said judgment which has attained finality. in any event, it is not open for the high Court to say that the decision given by the Supreme Court is per incuriam. A Full Bench of the Rajasthan i-ugh Court in W.P.(C)No.4790 of 1991 (FB) titled Bhensreadarh Panchayai Samiti ill Grade Teachers Association Vs. Slate of /?a/asthan and Anr. has held as under:- "15. Therefore, so far as the principle of per incuriarn is concerned, one coordinating, bench can say for the another coordinating bench that the decision of the higher court was not brought to its notice resulting in delivery ofjudgment contrary LPA Ao.715,2013 Page 6 /7 I to that of higher court or against a statute or any provisions of the statute. But it is not open for the Iligh Court to say that the decision given by the Hon'ble Supreme Court is per incuriam, if that is open then it will lead to disatrous result and the binding effect of the decision of the I-Ioble Supreme Court will ceased to be effective and it will run contrary to the provisions of Article 141 of the Constitution of India. As back as in the year 1970 the I-Ion'ble Supreme Court in the case of Bailabhdas Máthuradas Lakhani and Ors. v. Municipal Committee, Malkapur, AJR]970SC]002 has observed as under: The decision was binding on high Court and the high Court could not ignore it because they thought that relevant provisions were not brought to the notice of the Court." Thus, the respondent No. l/AICTE has no power or authority to issue impugned regulation and the consequential notification. So far as the second issue is concerned, it is the admitted position that the Regulation which was relied upon by the AICTE has to be placed before the Parliament which was not done. Thus, in view of the finding of the Supreme Court in Association of Management OLP14. L'ollegçsjpjgj, it is not a valid regulation. Hence, the impugned regulation is quashed. Accordingly, in view of the reasons given in the above paragraphs, we set aside the impugned order of the learned Single Judge and aflow the appeal.
CHIEF JUSTICE hIJ MA]NMO[1].., J OCTOBER 07, 2013 'aiib