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Karnataka High Court · body

2000 DIGILAW 110 (KAR)

ARUN v. STATE OF KARNATAKA

2000-02-07

T.S.THAKUR

body2000
TIRATH SINGH THAKUR, J. ( 1 ) COMMON questions arise for consideration in all these petitions which were heard together and shall stand disposed of by this order. The questions primarily relate to the entitlement of the students pursuing Degree course in different Engineering disciplines to seek transfer to other disciplines and the validity of the orders which the university has issued declining approval to such transfers. The facts are few and need be set out first. The petitioners are pursuing Degree Courses in Engineering in different Engineering Colleges in the State. Having passed their second Semester Examination they appear to have applied to their respective principals seeking change to other disciplines of their choice. In some cases, the principals appear to have declined to consider the request while in others the request was granted but disapproved by the University; on the ground that the same violated the terms of the Government Order under which such transfers are permitted. Aggrieved, the petitioners have filed the present Writ petitions, seeking a mandamus directing the Respondents to permit the petitioners to change the course and to pursue the same to its logical conclusion. I have heard Counsel for the parties and perused the record. Three questions arise for consideration. These are:-1) Whether a change of course is permissible and if so, whether the conditions subject to which the same is permitted are arbitrary and irrational to warrant intereference with the same? 2) Whether the increase in the intake capacity permitted by the aicte for the year 2000-2001 could be relied upon for the purpose of granting change of course to those admitted for the previous academic sessions; and 3) Whether the excess admissions made during 1999-2000 by change of courses would disentitle the institution from allowing a change of branch during the session 2000-2001?i propose to take up the questions ad seriatim. Reg:question No. 1 matters relating to a planned and co-ordinated development of technical Education System in the country, as also Regulation and maintenance of Norms and Standards relevant to such Education are governed by what is known as All India Council for Technical education Act, 1987. The said Act, envisages the establishment of all India Council for Technical Education to exercise powers and discharge functions set out in Section 10 thereof. The said Act, envisages the establishment of all India Council for Technical Education to exercise powers and discharge functions set out in Section 10 thereof. A plain reading of that provision, shows that the Council is required to discharge multiferious duties and functions in relation to the Development of technical Education and maintenance of its Standard in the country. These functions include the laying down of norms and standards for courses and curriculam, 'physical and instructional facilities, stafff pattern, quality of instructions, assessment and examinations etc. The provision also vests the Council with the power to prescribe guidelines for admission of students to technical institution and universities imparting Technical Education. Suffice it to say that there is hardly any aspect regarding the imparting of technical education which falls beyond the purview of the functions that the Council is required to perform under Section 10 of the Act. The decision of the apex Court in STATE OF T. N. AND ANOTHER vs ADHIYAMAN educational and RESEARCH INSTITUTE AND OTHERS1 and java GOKUL EDUCATIONAL TRUST vs COMMISSIONER AND secretary TO GOVERNMENT, HIGHER EDUCATION department declare that any law prevalent in any State and making any provision contrary to what is contained in AICTE Act, would be void on the ground of being repugnant to the Central legislation. Sections 22 of the Act, empowers the Central government to make Rules to carry out the purposes of the Act, whereas, Section 23 of the Act empower the Council to frame regulations for the said purpose. The Regulation's framed by the aicte do not however deal with the question whether a student admitted to undergo a course in one branch of Engineering can be permitted to change over to another. Mr Bhat, Counsel appearing for the AICTE fairly conceded that the AICTE has not so far taken any decision on the subject nor prescribed any norms for permitting such transfers. He however contended and in my opinion rightly so that the power to regulate transfer of a student from one branch to the other must necessarily belong to the AICTE keeping in view the provision of the Act, which covered the entire field in regard to technical education. Even the Visweswara Technological University to which the Engineering Colleges in the State of Karnataka are affiliated has not formulated any norms for the transfer of candidates from one Branch of Engineering to the other. Regulation 4. Even the Visweswara Technological University to which the Engineering Colleges in the State of Karnataka are affiliated has not formulated any norms for the transfer of candidates from one Branch of Engineering to the other. Regulation 4. 0. B. 14 of the modified Regulations governing the B. E. /b. Tech Degree courses from the academic year 2000-2001, simply states that transfer of students from one branch to the other is permissible as per the order issued by the Government of Karnataka. It reads thus:-"o. B. 14. 2:- Transfer of students within the college from Branch to Branch at 3rd Semester is permitted as per the provisions of the Government of Karnataka. "it is obvious from the above that the University also has not on its own formulated any norms regulating the grant of such transfer the right to seek and the power to grant a change is according to learned counsel for the parties traceable to Government Orders dated 21st of May, 1996 and 17th of December, 1996. The latter of the said two orders, designates the Principals of the concerned Engineering colleges as competent authorities to effect the change of branch of students in the 3rd semester subject to guidelines appended to the said order. These guidelines are for our purposes relevant and may therefore be extracted in extenso: "guidelines for effecting the change of course of students in an engineering college in the III semester/ II Year. "1. BRANCH change is permitted at III Semester/ II Year only; 2. Branch change is permitted if the strength in the branch is notfailing to or below 50% of the intake as fixed by the AICTE / government"3. Branch change is against clear vacancy only, vacancy (A)being defined as: a=x- ( y+z) here x = Intake for the branch (Sanctioned strength) y = No. of students (regular) who become eligible to go to iii Semester. z = No. of students from previous batches who become eligible to join III Semester along with regular students. (a) Example: If x=100, y=70 and z=20 then A=100- (70+20) = 10 (b) If x=100, y=70 and z=30 then A=100- (70+30)=0 i. no vacancy. (c) If x=100, y=70 and z=35 then A=100- (70+35) = -5 considered as no vacancy. 4. z = No. of students from previous batches who become eligible to join III Semester along with regular students. (a) Example: If x=100, y=70 and z=20 then A=100- (70+20) = 10 (b) If x=100, y=70 and z=30 then A=100- (70+30)=0 i. no vacancy. (c) If x=100, y=70 and z=35 then A=100- (70+35) = -5 considered as no vacancy. 4. Branch change is strictly according to the merit lists preparedon the basis of the University Examination marks of I and II semesters added together in the following orders; i) Who have cleared all the subjects ii) Who have one ordinance; iii) Who have two ordinances, etc. 5. Change of branch should be completed within 10 days fromthe date of announcement of I and II Semester results. 6. A consolidated list showing the details of branch change mustbe submitted to the DTE for information. 7. The DTE shall prescribe a check list to be furnished by collegesimmediately after effecting change of branches. 8. In case of any violation of these guidelines, the competentauthority is empowered to take suitable action against such erring institutions in accordance with law. "it is not in dispute that eversince the issue of the order aforementioned transfers have been permitted on the terms and according to the norms indicated above. Whether or not the AICTE, has taken cognizance of the procedure that is prevalent in the State is not very clear. What is not disputed is that the Govemmert of Karnataka does not under the AICTE Act, have any authority or power to issue an order permitting the transfers or prescribe norms that may regulate the same. The fact that the University has been allowing and approving transfer in the light of the order issued by the Government does not improve the situation for any Regulation made by the AICTE forbidding such transfers or prescribing norms different from those that have been evolved by the Government would undoubtedly supersede the Government Order that has held the field till now no matter by default. The AICTE would indeed do well to examine whether the procedure being followed and the norms being applied conform to the standards that it wishes to enforce and fits in to the scheme which it has evolved for a planned and co-ordinated development of Technical Education in the country. The AICTE would indeed do well to examine whether the procedure being followed and the norms being applied conform to the standards that it wishes to enforce and fits in to the scheme which it has evolved for a planned and co-ordinated development of Technical Education in the country. Uniformity at the national level in matters relating even to questions like change of branches would be a well-come step to avoid different norms being formulated and applied in different States and the resultant disparity and confusion. Coming then to the question whether pending a decision from the AICTE to the contrary, the conditions subject to which the government Order referred to above permits change of branch suffer from any arbitrariness or irrationality. The challenge to the norms was confined to Clause (2) extracted earlier according to which a branch change is permitted only if the strength of students in the branch from which the change is permitted does not fall below 50% of the intake fixed for the same by the Alcte/govemment. It was contended that this requirement was wholly unfair and irrational and creates anomalous situations in which meritorious candidates are denied a change only because the branch from which they seek a transfer, has not attracted candidates equivalent to 50% or more of the intake fixed by the AICTE. It was argued by Mr. Murthy, Counsel appearing for some of the petitioners that meritorious candidates admitted to say the Civil Engineering Branch which is not very popular may be denied a change while a less merited candidate admitted to a more popular branch like Electronics may succeed in getting a change only because in the former, the number of candidates available are below 50% of the intake while in the latter the number of such candidates is more than the 50% mark. A rigorous and pedantic application of the norms would therefore result in prejudice to such candidates for no fault of their and based on considerations that have nothing to do with the merit of the applicant seeking a transfer. That argument cannot be brushed aside lightly. The anomaly arising from the application of the norms is obvious for there are branches in which the Colleges do not attract candidates upto even 50% of their intake capacity. That argument cannot be brushed aside lightly. The anomaly arising from the application of the norms is obvious for there are branches in which the Colleges do not attract candidates upto even 50% of their intake capacity. Those admitted to such branches may be by reason of Clause -2 of the norms and in total disregard of their individual merit lose the opportunity to change over to another branch. Whereas others even though muchless merited may easily switch over to another branch because the discipline to which they were admitted would be left with more than 50% of its strength even after transfer. An attempt was however made by learned Counsel for the University and the Government Advocate to justify Clause-2 of the norms, on the ground that since most of the colleges are aided if transfers are permitted liberally and even in cases where the students strength falls below 50% of the intake, the staff strength in such Colleges may be rendered excess and the expenditure on the up-keep of the infrastructure, a national waste. There is however no material on record to support that contention. As to what is the position in regard to the Colleges with which we are concerned in the present cases has not been stated nor have the requisite facts been pleaded in the counter-affidavit by the government or the University. In the absence of relevant material it is difficult to support Clause 2 of the norms, on the ground of economic viability or financial waste. It is noteworthy that no attempt was made by the Respondents to justify the clause on the ground that the a reduced strength in the class would render the class or the course academically unviable. Even if an effort was made the same would not carry conviction for while increase in the strength may affect academic standards a decrease in the number of candidates on account of transfer of some to other branches, cannot possibly affect the academic standards or the excellence of the instructions imparted to those who continue in the course. Clause (2) of the Norms prescribed by the Government Order in question shall therefore have to be struck down as irrational and discriminatory hence violative of Article 14 of the Constitution Question No. 1 is answered accordingly. Reg:question No. 2: this question arises in relation to the petitioners in W. P. Nos. Clause (2) of the Norms prescribed by the Government Order in question shall therefore have to be struck down as irrational and discriminatory hence violative of Article 14 of the Constitution Question No. 1 is answered accordingly. Reg:question No. 2: this question arises in relation to the petitioners in W. P. Nos. 332-371/2001 who are students of Murugarajendra Institute of Technology. The intake capacity of this College as fixed by the AICTE was limited to 75 seats each in Electronics and Communication Engineering and computer Science and Engineering. For the Academic Session 1999-2000, the College appears to have permitted change of branches to students in excess of the Intake capacity fixed in the above branches. These changes were it appears approved by the University upon an undertaking furnished by the College to the effect that the excess. academic year 2000-2001 was also produced in the course of the hearing for the year 2000-2001. The College has all the same permitted change of branches to 40 students, who have filed the writ Petition mentioned above. Out of the said 40 students petitioners in Writ Petition No. 3332 to 3352, have been transferred to Computer science and Engineering whereas petitioners in Writ Petitions No. 3353 to 3362/2000 have been transferred to Electronics and communication. The remaining have been transferred to mechanical engineering. The University has declined approval to these transfers on two grounds. Firstly because. the transfers are in excess of the intake fixed by the College and secondly because the same are in violation of the undertaking given by the College in regard to the adjustment of the excess admissions made for the previous year. Mr. Narayanan submitted that the University ought to have examined the question of transfer in the light of the recent order made by the AICTE whereby the intake capacity of the College had been increased to 100 seats each in Electronics and Communication and Computer Engineering Departments. In support he placed reliance upon an order dated 14th of August 2000, issued by the aicte according to which the intake capacity of the College has been raised from 75 to 100 in computers Science and Engeneering with a similar enhancement granted in Electonics and sele communications . In support he placed reliance upon an order dated 14th of August 2000, issued by the aicte according to which the intake capacity of the College has been raised from 75 to 100 in computers Science and Engeneering with a similar enhancement granted in Electonics and sele communications . He submitted that the grant of this enhancement pre-supposes the existence of infrastructure necessary for admission of 100 students to undergo training in the aforementioned two branches and that even when the order permitted intake from 2000-2001 onwards the benefit thereof could be extended to students who are seeking a change in the branches from 3rd semester onwards. For the AICTE Mr. Bhat, argued that the enhancement was specifically confined to the session 2000-2001 and could not be relied upon for permitting change in the branches of students who had been admitted during the earlier session. He urged the enhancement was subject to the conditions stipulated by the AICTE in its order dated 25th of October, 2000 the University has examined the grant of approval by reference to the intake determined for the College and the terms of the government under which such transfers are made permissible. In sofaras Clause-2 of the said order is concerned, I have while answering question No. 1, above, held that the same works unfairly and is therefore unsustainable. To the extent the University has declined approval by reference to the said clause, the order made by it cannot be sustained. The issue obviously will have to be re-examined without insisting upon the requirement prescribed by the said clause aid clause. The 2nd and indeed the only other aspect is whether the validity of the changes proposed by the College has to be seen by reference to the intake already fixed or the increase permitted by the AICTE. It is no doubt true that the order made by the AICTE permitting an increased intake makes the said increase effective from the academic session 2000-2001 which would mean that insofar as the admission of fresh batch of students to the first year of the two courses are concerned, the same can be upto 100 students in each one of the two branches. The AICTE has not obviously considered whether or not the enhanced intake could also be made use for permitting the change of branches at the third semester level. The AICTE has not obviously considered whether or not the enhanced intake could also be made use for permitting the change of branches at the third semester level. The order issued by it, is silent insofar as that aspect is concerned. The question then is whether the order should be so interpreted as to permit such transfers to avoid prejudice to the students. My answer is in the affirmative I say so for two reasons. Firstly because the order of enhancement is unconditional. It is not subject to the college making available any additional infrastructural facilities to entitle it to make the admissions against the enhanced intake. If the intention was to permit increase only subject to the infrastructural facilities being proportionately augmented, the Order could and ought to have said so. Any such conditional increase then could be treated only as prospective and subject to the satisfaction of the condition on which it was granted. Stated differently, increase in the intake capacity would imply that the College was in the opinion of the AICTE possessed of the requisite infrastructure to justify admission of 100 candidates in each of the two courses. This would also mean that the College had the requisite infrastructure to teach the increased number of candidates not only at the first year level but at subsequent levels also. The second and an equally important reason is that the increase has been allowed pursuant to the recommendations made by the state Level Special Committee and the Central Task Force. Although the recommendations of the Committee and the Task Force have not been placed on record yet. Mr. Bhat did not dispute that the increase not being general in nature applicable to all the institutions was based on an evaluation of the infrastructure available in the existing colleges. Only such of the institutions as satisfied the norms prescribed by the AICTE had been allowed to increase their intake capacity. That being so, the policy of the authorities regulating the colleges and the academic standards in the same appear to be to permit changes in the courses which are popular and in which a larger number of trained Engineers are required at the national as also the international level. That being so, the policy of the authorities regulating the colleges and the academic standards in the same appear to be to permit changes in the courses which are popular and in which a larger number of trained Engineers are required at the national as also the international level. Grant of transfers shall therefore have to be viewed liberally and the increase in the intake related not only to the first year of the course but also at the third semester level where changes from one branch to the other are permitted. Reg:question No. 3:- this question also arises in relation to the petitioners in w. P. Nos. 332-371/2001. Shri Jagadguru Murugarajendra Institute of technology, in which the petitioners in that batch of cases are studying had as noticed in the earlier part of this order permitted change of course during the session 1999-2000 in excess of the total intake of the College fixed for the disciplines to which the changes were permitted. These changes appear to have been regularised by the University upon an undertaking given by the college to the effect that the excess will be adjusted in subsequent years. The University's stand now is that without adjusting the excess for the year 1999-2000 the College has permitted certain further changes which is neither permissible nor consistent with the undertaking given by the Institution. The Institution however points out from the undertaking furnished by it that the adjustment of the excess was not necessarily to be made in the year 2000-2001. Such adjustment could be carried forward to the subsequent years also. It was argued on its behalf that the Institution was prepared to make adjustment in the coming year if so directed by this Court provided the changes permitted for the year 2000-2001 are regularised. There is no dispute insofar as the factual aspect is concerned. Changes permitted during the previous year were in excess of the intake fixed for some of the courses. These changes were regularised on the undertaking of the Institution as noticed earlier. The fact that the excess has not been adjusted during the year 2000-2001 is also not denied. The question however is whether the changes permitted for the current year should be disallowed only on that ground. My answer is in the negative. These changes were regularised on the undertaking of the Institution as noticed earlier. The fact that the excess has not been adjusted during the year 2000-2001 is also not denied. The question however is whether the changes permitted for the current year should be disallowed only on that ground. My answer is in the negative. That is because the University having accepted the undertaking and allowed the Institution to adjust the excess over subsequent years, not necessarily in the year 2000- 2001, it cannot possibly find fault with the Institution's omission to make such adjustments during the current session. It is true that the institution could and ought to have made at least a partial adjustment of the excess admissions made by it, but the University had not, it appears, insisted on an undertaking to that effect for otherwise, the wording of the undertaking furnished by the Institution would have been different. This would not however mean that the Institution can indefinitely postpone the adjustment of the excess admissions at its sweet will. The adjustment shall have to be made at the earliest and I see no reason why the same should not be made in the coming session i. e. , 2001-2002. Question No. 3, is answered accordingly. After the matters were reserved for order Mr Patil, Counsel for the University filed Memos pointing out that the transfer of Branches granted to petitioners in Writ Petitions Nos. 38423-27/2000; 1056-60/ 2001, Writ Petitions Nos. 1280-1307/2001 and petitioners in Writ petitions Nos. 1373/2001; 1374/2000 and W. P. Nos. 1377/2001, have been approved by the University. In the light of the said Memos therefore the Writ Petitions mentioned above become infructuous. He also pointedout that although the petitioners have claimed that they have been pursuing their studies and attending classes in the changed courses, yet, the application forms submitted by the students, in Writ Petitions Nos. 332-371/2001, relate to the original branches only. He has placed on record copies of the application forms, filed by the petitioners in the said batch of cases in support of his submission that the claim made by the students about their having switched-over to the changed course was factually incorrect. Counsel for the petitioners however, argued that the University having declined to approve the changes permitted by the College, they were left with no alternative but to seek permission to appear in the original disciplines only. Counsel for the petitioners however, argued that the University having declined to approve the changes permitted by the College, they were left with no alternative but to seek permission to appear in the original disciplines only. It was contended that the petitioners' claim that they had been attending classes in the changed courses could be verified from the College and in case the same was found to be correct, the petitioners could be allowed to appear in the examination in the changed courses, subject to their fulfilling other conditions of eligibility prescribed by the Regulation. There is in my opinion merit in that contention The University had not approved the changes forcing the petitioners to file the present Writ Petitions. Whether or not the petitioner had in the meantime started attending classes in the changed courses, is a matter which would call for verification of the relevant record maintained by the College. So also the eligibility of the petitioners to appear in the examination for the changed course, will depend upon whether they had the requisite percentage of attendance. It is not necessary for this Court to go into that aspect at this stage. The question of verification of the eligibility of the petitioners to appear in the examination for the changed courses can be left to be determined by the University. In the result- writ Petitions Nos. 1373/2001; 1374/2001,1377/2001, 38423-427/ 2000, 1056-60/2001 and 1280-1307/2001 are dismissed as infructuous. Writ Petitions Nos. 39084-90/1999; W. P. Nos. 332-371/2001; w. P. Nos. 1366-1372/2001;w. P Nos. 1375, 1376/2001, 1378/2001 and 37052/2000 are however allowed in part and to the following extent. In the result- writ Petitions Nos. 1373/2001; 1374/2001,1377/2001, 38423-427/ 2000, 1056-60/2001 and 1280-1307/2001 are dismissed as infructuous. Writ Petitions Nos. 39084-90/1999; W. P. Nos. 332-371/2001; w. P. Nos. 1366-1372/2001;w. P Nos. 1375, 1376/2001, 1378/2001 and 37052/2000 are however allowed in part and to the following extent. 1) Clause (2) of the Annexure to Government Order dated 17th of December, 1996, is struck-down as arbitrary and violative of Article 14 of the Constitution; 2) The change of course permitted by the Institution shall be examined for approval by the Respondent University afresh ignoring clause (2) of the Order afore- mentioned; 3) The University shall while examining the questions of approval of the changes treat the intake capacity of Shri Jagadguru murugarajendra Institute of Technology, Respondent No. 3, in Writ petition No. 332-371/2001 to be 100 seats per annum in the disciplines of Computer Science and Electronics and telecommunication and determine the vacancies accordingly, applying the norms stipulated for that purpose in the Government Order referred to above; 4) The approval of the changes permitted by the Institution mentioned above, shall however be subject to the condition that the excess transfers permitted for the academic year 1999-2000 are all adjusted during the academic session 2001-2002. 5) The University, shall pursuant to the directions given in 1) and 3) above, permit such of the petitioners as are found to be within the intake capacity of the Colleges, to appear in the examination for the changed. courses subject to the verification of their eligibility as regards attendance of lecturers etc. in the said courses. 6) The All India Council for Technical Education, would do well to consider whether or not change in branches be permitted and if so the norms subject to which the same should be allowed. Need less to say that the norms so prescribed shall supersede those prescribed by the State Government in regard to such changes. The parties are left to bear their own costs. --- *** --- .