Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1947 OF 2011 [Arising out of SLP [C] No.12624/2010]

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

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  

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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:  

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“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:  

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“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.  

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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 ]

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