Paragraph numbers below are the court’s original numbering, recovered from the source text.
33. The role of AICTE2 in Technical and Management education was emphasized in National Policy of Education, published by the Government of India in 1986, which was noted by this Court in Orissa Lift Irrigation Corporation case5. The concerned Regulations issued by AICTE2 in the year 1994 were also considered under which no course or programme could be introduced by any technical institution except with the approval of AICTE2. Paragraphs 23.2 and 23.3 of the decision had extracted relevant portions of the National Policy of Education and the concerned Regulations of AICTE2 as under:- “23.2. In 1986, National Policy on Education was published by the Government of India, Part VI of which dealt with Technical and Management Education, Paras 6.6, 6.8 and 6.19 of the Policy were:- “6.6. In view of the present rigid entry requirements to formal courses restricting the access of a large segment of people to technical and managerial education, programmes through a distance learning process, including use of the mass media will be offered. Technical and management education programmes, including education in polytechnics, will also be on a flexible modular pattern based on credits, with provision for multi-point entry. A strong guidance and counselling service will be provided. 6.8. Appropriate formal and non-formal programmes of technical education will be devised for the benefit of women, the economically and socially weaker sections, and the physically handicapped. 6.19. The All India Council for Technical Education, which has been given statutory status, will be responsible for planning, formulation and maintenance of norms and standards, accreditation, funding of priority areas, monitoring and evaluation, maintaining parity of certification and awards and INSTITUTION OF MECHANICAL ENGINEERS (INDIA) THR. ITS CHAIRMAN v. STATE OF PUNJAB [UDAY UMESH LALIT, J.] ensuring the coordinated and integrated development of technical and management education. Mandatory periodic evaluation will be carried out by a duly constituted Accreditation Board. The Council will be strengthened and it will function in a decentralised manner with greater involvement of State Governments and technical institutions of good quality.” 23.3. The AICTE (Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Approval of Intake Capacity of Seats for Courses or Programmes) Regulations were issued in 1994 (“the 1994 AICTE Regulations”, for short). Clause 4 of these Regulations was to the following effect: “4.0. Requirement of grant of approval 4.1. After the commencement of these Regulations, (a) No new Technical Institution or University Technical Department shall be started; or (b) No course or programme shall be introduced by any Technical Institution, University including a Deemed University or University Department or College or; (c) No Technical Institution, University or Deemed University or University Department or College shall continue to admit students for Degree or Diploma courses or programmes; (d) No approved intake capacity of seats shall be increased or varied; Except with the approval of the Council.”
34. It was laid down in said decision that AICTE2 is the sole repository of power to lay down parameters or qualitative norms for “technical education” and that it was within the exclusive domain of AICTE2 to consider whether subjects leading to Degrees in Engineering could be taught in distance education mode or not. The issue whether courses leading to degrees in Engineering could be taught through distance education learning was dealt with in extenso. It was laid down that by very nature, practical training would be an essential and integral part of engineering courses and that until and unless a clear policy was laid down by the AICTE2, no courses in engineering could be taught or imparted through distance education mode. It was held that in the absence of any guidelines having been issued by AICTE2 expressly permitting courses leading to Degrees in Engineering through distance education, no such courses could be introduced. The consistent stand taken by the AICTE2 was also noted in said judgment.
35. The point in question was again dealt with in the Order dated 22.01.20187 in paras 23 and 24 and it was stressed that conferral of degrees in Engineering through distance education mode was never approved in principle by AICTE. The appellant does not even claim to be imparting any education through distance education mode and only conducts bi-annual examination and awards certificates to those who qualify such examination. Considered in the light of the decision of this Court in Orissa Lift Irrigation Corporation case5, the learned Amicus Curiae is right in his submission that the case of the appellant would be on a footing lower than the cases of deemed to be Universities as dealt with in that decision.
36. The consistent stand of the appellant has been that it is not covered under any of the Acts viz. the UGC Act, Indira Gandhi National Open University Act, 1985 and the AICTE Act. However, since it offers courses or programmes of technical education, as rightly held by the High Court, the appellant comes within the definition of “technical institution” as defined in the AICTE Act. Neither does the appellant, on its own grant Degrees in Engineering nor does it, in its capacity as an affiliated institution to a recognized University, prepare students in courses leading to Degrees in Engineering. Though it does not impart any instructions either in theory or in practical, it holds an examination, on satisfactory clearance of which it awards Certificates of Membership to candidates. The question is whether such Certificate could, as a matter of law, be recognised as equivalent to a Degree in Mechanical Engineering from a recognised Indian University? Nothing is clear as to under what statutory regime or under which legal provision can such equivalence to the Certificate issued by the appellant be granted or conferred. No statutory provision has been pressed into service or relied upon to suggest that given the particular circumstances and/or, on satisfaction of certain parameters the appellant would be entitled to conferral of such equivalence or status. INSTITUTION OF MECHANICAL ENGINEERS (INDIA) THR. ITS CHAIRMAN v. STATE OF PUNJAB [UDAY UMESH LALIT, J.]
37. In terms of Section 22(1) of the UGC Act, right to confer degrees can be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or by an institution deemed to be a University under Section 3 of the UGC Act or by an institution specially empowered by an Act of Parliament to confer or grant degrees. The idea appearing in Sub-Section (1) of said Section 22 is made emphatically clear by Sub-Section (2) which stipulates: “Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree”. The intent of the Parliament is clear that it is only that body which is referred to in sub-Section (1) of Section 22, that is competent to confer or grant degrees. The appellant does not fall under any of these categories enumerated in Section 22(1) of the UGC Act.
38. In Orissa Lift Irrigation Corporation Case5, it also arose for consideration whether a deemed to be University, without taking appropriate prior permission could start courses leading to degrees in Engineering through open distance learning. That aspect of the matter does not arise in the present case and it is also not the case of the appellant, that it is entitled to award degrees in Engineering. Its submission however is, having been conferred the status of being equivalent to degrees in Engineering in respect of Certificates awarded by it, the appellant is entitled to continue having such benefit or advantage. There is nothing on record either in the form of any statutory provision or any statutory regulations or any scheme under which such equivalence could be granted by the MHRD3. It appears that claims made by various institutions like appellant were considered on case to case basis and equivalence was granted by MHRD3. The first of those communications was of the year 1976 when AICTE2 Act was not in force. If the mandate of Section 22 disentitles any authority or person other than those specified in Section 22 (1) to award degrees, there is no power or authority in any one including MHRD3 to award such equivalence.
39. The principle that what cannot be done directly cannot be achieved indirectly is well settled and was elaborated by this Court in following decisions:- A) In State of Tamil Nadu and Others v. K. Shyam Sunder and Others8 as under:- 8 (2011) 8 SCC 737 “VI. What cannot be done directly—cannot be done indirectly 43. “21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. An authority cannot be permitted to evade a law by ‘shift or contrivance’.” (See Jagir Singh v. Ranbir Singh9, M.C. Mehta v. Kamal Nath10 and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd.11, SCC p. 344, para 21)” B) In Jagir Singh v. Ranbir Singh12 as under-:- “5. In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of as one directed against the order of the Magistrate. We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It is a “well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance” (per Abbot, C.J. in Fox v. Bishop of Chester). “To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.” (Maxwell, 11th Edn., p. 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court’s jurisdiction was invoked to avoid the order ‘of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge’s order.”
40. If a degree can be awarded only by those institutions which satisfy the description given in sub-Section (1) of Section 22 of the UGC 9 (1979) 1 SCC 560 : 1979 SCC (Cri) 348 : AIR 1979 SC 381 10 (2000) 6 SCC 213 : AIR 2000 SC 1997 11 (2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904 : JT (2010) 11 SC 273 12 (1979) 1 SCC 560 INSTITUTION OF MECHANICAL ENGINEERS (INDIA) THR. ITS CHAIRMAN v. STATE OF PUNJAB [UDAY UMESH LALIT, J.] Act, the mandate of a Parliamentary legislation cannot be circumvented or nullified by awarding equivalence to a Certificate issued and awarded by the appellant. What is the value of that certificate will be considered by each employer as and when the occasion arises. The appellant would certainly be entitled to award Certificate of Membership to its Members. What weightage the Certificates must have is for the individual employers to consider in a given case. The concerned employer may attach due importance to such Certificates while considering the worth and ability of the concerned candidates but to say that the Certificates are equivalent to a degree and as such all the candidates who hold such Certificates are entitled to derive the advantages which a degree holder can, is completely a different issue.
41. In the present case, the communication dated 26.05.1976 under which the Certificate issued by the appellant was recognized to be equivalent to a Degree in Mechanical Engineering from a recognized Indian University, does not indicate any statutory provision under which such equivalence could be granted or conferred. This point becomes more crucial, as after the enactment of AICTE Act, the entirety of the field concerning “technical education” is kept in the domain of AICTE by the Parliament. Section 10 of the AICTE Act entitles AICTE not only to lay down norms and standards for courses, curriculum and such other facets of “technical education” but also entitles it under clause (l) to advise the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges etc. Going by the width of the power, after the enactment of AICTE Act, even such privileges could be conferred only after express advice of AICTE and within the confines of various statutory provisions.
42. Consequently, neither can the appellant claim, as a matter of right to be entitled to confer any degree nor can it claim that Certificate awarded by it must be reckoned to be equivalent to a Degree in Mechanical Engineering.
43. The High Court1 was, therefore, right in observing:- “… … the Institute of Mechanical Engineers (India), Mumbai is a registered Society and is thus a Technical Institution and is required to obtain approval from AICTE in respect of its courses in technical subjects. The membership of such institute cannot be treated as equivalent to a degree, as the candidate qualified from such institute cannot be said to be at par with the members of Institution of Engineers established under the Statute. (para 208) … …There is no document produced or alleged that Respondent No.4 has permanent recognition from any Council or Board in respect of its courses. Therefore, the degrees or the membership granted by respondent No.4 cannot be treated as equivalent to Degree in Engineering.” (para 211)
44. However, the fact remains that the equivalence to the Certificates awarded by the appellant was granted by the MHRD3 in consultation with AICTE2 upto 31.05.2013 as is evident from Notification dated 06.12.2012 issued by the Central Government and Public Notice issued by AICTE in August, 2017. These communications also indicate that all those students who were enrolled upto 31.05.2013 would be eligible for consideration in accordance with MHRD office memorandum/ order in course. Though we have laid down that the Certificates issued by the appellant on successful completion of its bi-annual examination to its Members cannot be considered to be equivalent to a Degree, an exception needs to be made in favour of students enrolled up to 31.05.2013 and benefit in terms of the Notification dated 06.12.2012 and Public Notice as aforesaid ought to be extended to such candidates. The candidates had opted to enroll themselves so that they could appear at the examinations conducted by the appellant under a regime which was put in place by the Central Government itself and the course content as well as the curriculum were reviewed by the AICTE. However, the aforementioned Notification and Public Notice were clear that after 01.06.2013 the concerned orders granting equivalence would cease to have any effect.
45. In the circumstances we do make an exception in favour of such candidates enrolled upto 31.05.2013 and declare that the conclusions drawn in the present matter will apply after 01.06.2013. The Certificate awarded by the appellant to such candidates enrolled upto 31.05.2013 shall be considered equivalent to a Degree in Mechanical Engineering for the purpose of employment in Central Government. INSTITUTION OF MECHANICAL ENGINEERS (INDIA) THR. ITS CHAIRMAN v. STATE OF PUNJAB [UDAY UMESH LALIT, J.]
46. In the premises, we do not find any error in the assessment made by the High Court1 in paragraphs 205 to 213 of its judgment. We, therefore, dismiss all the submissions raised by the appellant and reject Miscellaneous Application No. 2367 of 2018. No costs.
47. In the end, we express our sincere gratitude for the assistance rendered by Mr. C.A. Sundaram, learned Amicus Curiae. Divya Pandey Application rejected.