Kerala High Court
Pattayil Kunjukunju Memorial ... vs State Of Kerala on 6 October, 2021
WP(C) NO. 17341 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
WP(C) NO. 17341 OF 2021
PETITIONER:
PATTAYIL KUNJUKUNJU MEMORIAL CHARITABLE TRUST
AMBADIYIL SHOPPING COMPLEX, REVENUE TOWER ROAD,
ADOOR, PATHANAMTHITTA-691 523, REP.BY ITS MANAGING
DIRECTOR, ABYIN A.S.
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
SUZANNE KURIAN
CIMIL CHERIAN KOTTALIL
RESPONDENTS:
1 STATE OF KERALA
REP.BY THE SECRETARY, TECHNICAL EDUCATION
DEPARTMENT., GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 THE DIRECTOR OF TECHNICAL EDUCATION
PADMAVILASOM STREET, FORT P.O., THIRUVANANTHAPURAM
695 023
3 STATE BOARD OF TECHNICAL EDUCATION
REP.BY ITS MEMBER OF SECRETARY, DIRECTORATE OF
TECHNICAL EDUCATION, THIRUVANANTHAPURAM- 695 001
4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REP.BY ITS MEMBER SECRETARY, NELSON MANDELA, MARG
VASANT KUNJ, NEW DELHI-110 070
5 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REP.BY ITS REGISTRAR, CET CAMPUS, THIRUVANANTHAPURAM
-695 016
BY ADVS.
WP(C) NO. 17341 OF 2021 2
SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION - AICTE
ELVIN PETER P.J.
SRI KB RAMANAND, SPL GP TO ADDL AG
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 17341 OF 2021 3
JUDGMENT
The petitioner is a registered charitable society which conducts an
Engineering College by the name "Sree Narayana Institute of Technology"
(SNIT) at Adoor. The aforesaid College is affiliated under the 5th respondent,
the APJ Abdul Kalam Technological University. The petitioner is aggrieved by
Exts.P5 and P7 orders, by which, the request submitted by the petitioner for
commencing new Diploma Courses in the existing College stands rejected by
the respondents 1 and 2 on the ground that the policy of the Government is
not to grant NOC to self-financing private institutions for starting new courses
in the year 2020-2021.
2. The facts which are required to be noticed for deciding this petition
are as under:
The petitioner contends that the Sree Narayana Institute of Technology
(SNIT) is a premier self financing college which has been conducting several
Engineering courses at Graduate and Postgraduate Levels with affiliation from
the 5th respondent. The said courses have been approved by the 4th
respondent as well. While so, the All India Council for Technical Education
(AICTE), the 4th respondent herein, invited applications for granting additional
diploma courses in engineering College premises. In the said circumstances,
the SNIT approached the 4th respondent and sought approval to start five new
level Diploma programmes in emerging areas in the institution for the
academic year 2021-2022 with an annual intake of 60 students each. The
petitioner was initially informed by the 4th respondent that NOC/approval from
the Director of Technical Education, the 2nd respondent herein, was required
to process the application for affiliation. In the said circumstances, Ext.P1
application was submitted before the 2nd respondent.
3. While so, the 4th respondent granted approval to the petitioner for
conducting five new level Diploma programmes by Ext.P3 letter. Immediately
thereafter, the petitioner approached the 2nd respondent and presented the
letter issued by the 4th respondent sanctioning the courses and requested for
issuance of NOC/Approval. The petitioner contends that they were later
informed that the 1st respondent has taken a policy decision not to grant
NOC/Approval to self-financing private institutions for starting new courses in
the year 2020-21. This fact is evident from Ext.P5 letter issued by the 2nd
respondent. Later, a series of writ petitions were preferred before this Court
and those writ petitions had to be withdrawn, either because the relief sought
for had become infructuous or for the fact that filing of the earlier writ petition
had not been disclosed in the subsequent writ petition. The petitioner
contends that the 2nd respondent by Ext.P7 letter reiterated their earlier stand
and informed the petitioner that their request for grant of affiliation for the five
new diploma courses cannot be granted. According to the petitioner, Ext.P5
and P7 are illegal and cannot be sustained as the State authorities cannot
usurp the powers granted to a statutory authority constituted under a Central
Act and as the NOC sought for cannot be denied by way of a policy decision.
4. The petitioner contends that though they are conducting an
Engineering College within the same campus, none of the facilities and
infrastructure provided for the Engineering College is being shared for the
Diploma courses. This aspect was found and verified by the 4th respondent.
The petitioner contends that the 5th respondent vide Ext.P8 letter was
informed of the approval granted by the 4th respondent and approval was also
sought for commencing five new diploma courses. The petitioner contends
that on earlier occasions, when the 2nd respondent had refused to grant NOC
for starting additional technical courses citing the policy decision of the
Government, those orders were challenged before this court and by Exts.P9
and P10 judgments, this Court had emphatically held that policy decision of the
State Government cannot be a ground to deny grant of NOC for commencing
new technical courses within the State of Kerala especially when sanction has
been granted by the 4th respondent. The petitioner contends that for the
academic year 2021-2022, when the request of a few of the Engineering
Colleges in the State to grant approval for starting new level diploma courses
were rejected, the same was challenged before this Court. Their Lordships of
the Division Bench by Ext.P11 judgment dated 13.8.2021, in
W.A.No.1060/2021 has ordered the 5th respondent to carry out an inspection
and also to consider the request for approval for starting new level diploma
courses. It is in the afore circumstances that the petitioner is before this Court
seeking the following reliefs:
i. Issue an appropriate writ, order or direction calling for the
records leading to Ext.P5 & P7 and to quash the same.
ii. Issue a writ of mandamus or other appropriate writ, order or
direction directing the 2nd respondent to grant an
approval/permission/NOC to conduct the diploma courses
mentioned in Ext.P4, for the academic year 2021-22.
iii. Issue a writ in the nature of declaration, declaring that an
approval/permission/NOC is not required from the 5th
respondent for conducting new diploma courses within the
same educational institution once approval has been
granted by the 4th respondent.
iv. Issue a writ of mandamus or other appropriate writ, order or
direction directing the 5th respondent to consider and pass
orders on Ext.P8 as expeditiously as possible.
5. This Court by order dated 27.8.2021, taking note of the
submissions of the learned counsel appearing for the petitioner that Ext.P8
representation submitted by them before the 5th respondent had not been
taken up or considered, directed the 5th respondent to take a decision on
Ext.P8 after conducting an inspection within a week. The 5th respondent was
directed to forward a copy of the report to the 2nd respondent immediately
thereafter.
6. A counter affidavit has been filed by the 5th respondent wherein it
is stated that the committee had conducted an inspection on 6.9.2021 and
Ext.R5 report has been submitted before the Registrar. It is also stated that
the Registrar has forwarded a copy of the report to the Director of Technical
Education on 10.9.2021. It is stated that, from the report it is clear that the
degree and postgraduate courses being conducted in the petitioner institution
would be adversely affected if diploma courses are allowed to be commenced
by the petitioner. In the said circumstances, the University is not in a position
to recommend the conduct of Diploma courses in the buildings earmarked by
the University for the purpose of affiliation and conduct of B.Tech, M.Tech and
MBA courses. It is also stated that sanctioning of diploma courses is within the
exclusive domain of the Government and the Director of Technical Education.
It is contended that the University has no legal mandate to grant NOC to the
institution for starting diploma programmes and therefore, the University
cannot grant NOC/Approval to the petitioner to conduct diploma courses in
the building ear marked by the institute for the conduct of courses affiliated to
the University.
7. A statement has been filed by the learned standing counsel
appearing for the 4th respondent wherein it is stated that the SNIT had
applied for extension of approval for existing courses and for approval of five
new diploma courses in the emerging area for the academic year 2021-2022.
The AICTE has conducted scrutiny and re-scrutiny of the application and noted
certain deficiencies. The Standing Appellate Committee (SAC) held a meeting
on 26.6.2021 and recommended a letter of approval. The Expert Visit
Committee (EVC) conducted on 28.6.2021 reported 'Nil Deficiency' and based
on such reports, Extension Of Approval (EOA) for existing courses with
approval for new diploma courses was issued by the AICTE for the academic
year 2021-2022. It is further stated that as per the revised academic calendar
issued by the AICTE, the 2nd respondent is responsible to grant affiliation/NOC
by 10th August, 2021 and the AICTE has no further role.
8. A statement has been filed by the 2nd respondent wherein it is
stated that the report of the Committee constituted by the University was
communicated to the 2nd respondent. In the said report, it is stated that the
proposed courses are to be conducted in the 5th floor of the main building of
which the ground plus 5 floors are currently being used for running B.Tech,
M.Tech and MBA courses. It is also stated in the report that the institution has
not earmarked any separate space for workshop for students admitted to the
diploma courses and hence, the conduct of diploma courses in the said
building may overlap with the smooth function of the B.Tech courses. Since
the 5th respondent has not recommended for starting the diploma courses, the
2nd respondent has rejected the proposal submitted by the petitioner, vide
Ext.R2(a) order dated 16.9.2021 for the academic year 2021-2022.
9. I have heard Sri. Rony Jose, the learned counsel appearing for the
petitioner, Sri. V. Sajith Kumar, the learned standing counsel appearing for the
AICTE , Sri. Elvin Peter, the learned standing counsel appearing for the
University and Sri. Ramanand, the learned Senior Government pleader.
10. Sri. Rony Jose, the learned counsel submitted that Exts.P5 and P7
are per se illegal. According to the learned counsel, once the Central Council
has granted approval, respondents 1 to 3 are bereft of any powers to refuse
the grant of sanction for the Diploma courses. According to the learned
counsel, a policy decision by the State not to grant sanction for new courses
would clearly be in the teeth of the provisions of the Central Act. Reliance is
placed on a judgment of this Court in the State of Kerala and Ors. v. KMCT
Polytechnic College, Mampara [MANU/KE/1255/2017] to contend that the
State has no authority to withhold permission to start new Diploma courses
based on any policy decision of the Government. It is further submitted that
the college run by the petitioner possesses both the technical and
infrastructural expertise to conduct the Diploma courses within the existing
college. It is further submitted that during the pendency of the writ petition,
the 2nd respondent without taking note of the facts and circumstances and
placing absolute reliance on the report submitted by the University had
rejected the application on the ground that the conduct of the Diploma courses
in the institution may interfere with the smooth functioning of the Degree and
PG course. According to the learned counsel, before issuing such an order, the
DTE ought to have heard the petitioner after conducting a physical inspection
of the infrastructure and ascertain whether there is any sharing of resources.
11. Sri. Ramanand, the learned Senior Government Pleader submitted
that it was pursuant to orders issued by this Court that inspection was
conducted by a team of officers of the University and their report and
conclusions were forwarded to the 2nd respondent. The report clearly reveals
that there is sharing of infrastructure. It is based on the said report that Exhibit
R2(a) rejection order was issued. The learned Government Pleader however
admits that the petitioner was not heard before passing such an order.
12. Sri. V. Sajith Kumar, the learned standing counsel appearing for
the AICTE submitted that the AICTE has considered all relevant aspects while
issuing Ext.P3 extension of approval.
13. Sri. Elvin Peter, the learned counsel submitted that the petitioners
are bound by the Approval Process Handbook of the AICTE, the University Act
and the First Statute to obtain the concurrence of the University before starting
Diploma courses in the affiliated institution. According to the learned counsel,
affiliation for conducting engineering courses was granted after a detailed
inspection by the University for ascertaining whether the amenities and
infrastructural facilities and staff in the college were sufficient to impart
education as per the norms fixed by the examining body. Though the
Universities cannot dilute standards prescribed by the AICTE, the power of
Universities to prescribe enhanced norms and standards has been upheld by
the Apex Court. It is contended that it would be the students who would suffer
if the facilities in the College is below par. The learned counsel would also
point out that it is doubtful whether a site inspection was carried out by the
AICTE before granting an extension of approval, and relying on the judgment
of the Apex Court in A.P.J. Abdul Kalam Technological University v. Jai
Bharath College of Mngt. & Engg. Technology, [(2021) 2 SCC 564], it is
submitted that the Apex Court had severely deprecated the AICTE for granting
approval without conducting a proper physical inspection of the college and
purely based on self-disclosure. The learned counsel would urge that
ultimately, it is the universities that are obliged to issue degrees and whose
reputation is inextricably intertwined with the fate and performance of the
students and hence their role cannot be belittled.
14. I have considered the submissions advanced.
15. Two questions arise for consideration in this case. The first
question is whether the State can have a policy decision not to permit private
self-financing institutions from starting diploma courses. The next question is
whether an institution affiliated with the APJ Abdul Kalam Technological
University is required to obtain approval/NOC from the Director of Technical
Education before commencing new courses and whether the DTE is required to
obtain the views of the University before granting such approval/recognition.
16. In so far as the first issue is concerned, the question is no longer
res integra. In State of Kerala v. M.G.M. College of Arts and Science
[2017 (3) KLT 779], the question which arose for consideration was concerning
a policy decision taken by the State Government that no new colleges and
courses would be allowed in the self-financing sector in the higher education
field in the State. Paragraph Nos.4 to 10 are extracted below for convenience.
"4. First, we may refer to the source of power of the State to take
such a decision. It is too late in the day now to contend that right to
education is not a part of fundamental rights, for, at last Article 21A of
the Constitution has been brought in, but in a limited sense only.
Notwithstanding that, can anyone consider life and liberty dehors
education? Can anyone consider trade, commerce and business
without education? Can anyone consider a livelihood without
education? That being the foundation, then the right to provide
education would also form a part thereof. If that be so, then that can
only be taken away by law and not by mere executive fiat. Therefore,
one must look for the source of authority so far as the Government
order aforesaid is concerned.
5. We are not dealing with higher education given by technical
institutions. We are dealing with Arts and Science Colleges in general.
The establishment of such colleges is regulated by various State
University Acts and one of them is Mahatma Gandhi University Act,
1985 (the 'Act', for short) enacted by the Kerala State legislature. This
is an enactment pursuant to Entry 25 List III of the Constitution, in
relation to Education and Universities. If we refer to the scheme of the
Act, the Act clearly provides that no college or institution can impart
any education for the purpose of grant of degree except upon due
affiliation granted by a University within the jurisdiction of which, such
institution falls.
6. For grant of affiliation, there are statutes framed under the Act by
virtue of Section 35. The statutes concerning the Mahatma Gandhi
University are known as Mahatma Gandhi University Statutes, 1997
(the 'First Statutes', for short). Chapter 23 of the First Statutes deals
with affiliation of colleges. If we refer to this chapter, we would see
that any institution that requires affiliation, would have to first set up
the institution, then make an application to the University for grant of
affiliation. The University, after scrutinizing the application, may call
for further information and then, may appoint a commission to inspect
the new college, after physical verification, and submit a report.
Clause 9 of the Statutes in Chapter 23 reads as follows:
"9. Grant of Affiliation: (1) The University may appoint a
Commission to inspect the proposed site of a new college or to
make a physical verification of the facilities that may exist for
starting the new college/course, if the application is considered
favourably by the University. The Commission shall inspect the
suitability of the proposed site, verify the title deeds as regards
the proprietary right of the management over the land (and
buildings, if any) offered, building accommodation provided, if
any, assets of the Management, constitution of the registered
body and all other relevant matters. Further action on the
application shall be taken on receipt of the report of the
Commission.
(2) The grant of affiliation shall depend upon the fulfillment by
the Management of all the conditions for the satisfactory
establishment and maintenance of the proposed
institution/courses of studies and on the reports on inspection by
the commission or commissions which the University may appoint
for the purpose.
(3) Unless all the conditions are fulfilled, before the
commencement of the academic year, no new college/or
additional courses shall be permitted to be started during that
year.
(4) Educational agency/Management, the Principal or any other
person or persons on their behalf shall neither demand nor
accept donations from candidates for appointment to the staff
and from students for admission to the college.
(5) The management shall be prepared to abide by such
conditions and instructions as regards staff, equipment, library,
reading room, playgrounds, hostels etc., as the University may,
from time to time, impose or issue in relation to the college.
(6) The educational agency/Management shall give an
undertaking to the University to carry out faithfully, the provisions
of the Act, Statutes, Ordinances and Regulations and the
directions issued by the University, from time to time, in so far as
they are related to the college. The undertaking shall be
endorsed by the Principal of the College.
(7) After considering the report of the Commission and the
report of the local enquiry, if any, and after making such further
enquiry as it may deem necessary, the Syndicate shall decide,
after ascertaining the views of the Government also, whether the
affiliation be granted or refused, either in whole or part. In case
affiliation is granted, the fact shall be reported to the Senate at
its next meeting."
7. If we refer to the scheme as contained in the Statutes and then
to Clause 9(7), we will find that Government's interference is only at
the end. Why we have referred to the scheme is that an institution
decides to set up a college. Having taken that decision, they create
the infrastructure, both in terms of building and in terms of
manpower. They then apply to the University for affiliation. University
conducts rounds of enquiries and inspections. When it finds
everything in order and the condition right for grant of affiliation, it
has, at that stage, to "ascertain the views of the Government". Can it
be expected of the Government to advice the University to refuse
grant affiliation. We think not unless there are some cogent
deficiencies in the institution, for, it will be travesty of justice to give
the power to the Government, at this stage, where a person may have
invested crores of rupees, spent several years in establishing an
institution, in recruiting people, construction of building, only to be
told no by the Government. Surely, that is not the power of the
Government as contemplated under Clause 9(7) of the Statutes. The
power is for the Government to recommend proper compliance of the
Statutes, and in so far as improvement of infrastructure is concerned,
it is for the University to see, whether the standards are met. Now,
once the University approves of the standards that are to be met, in
our view, the Government would have no say to advice the University
to reject affiliation. If it does, it would be arbitrary unless good reason
is shown by the State.
8. Now, we come to the facts of the present case where, after the
institutions were set up and inspections were conducted and change
of Government, suddenly the Government order was issued on
22.08.2016 putting a complete ban on self-financing colleges. All
colleges that had already been set up and were awaiting affiliation
thus, virtually became redundant. All investments went down the
drain. Rightly, the learned single Judge has disapproved of such a
policy decision.
9. Once power has been conferred on the authorities under the
University Statute and the Statutes as such, the Government cannot
override the discretion of the University, because such a policy makes
the entire statute dealing with affiliation redundant. This takes away
the right of parties to establish institutions even in the unaided sector.
Surely, this right is not exercised by the Government in terms of
Clause 9(7) of the Statutes. A policy decision of this nature cannot be
valid, even otherwise.
10. Even otherwise, for, it affects the fundamental rights of parties
to receive education and to impart education. Education, as noticed in
the beginning, is an integral part of life and liberty. Such a right can
be restricted not by a policy decision, but only by a law and law
means law made by the competent legislature and not by an
executive fiat. Further, a policy decision like this fetters future
discretion. Such fetters cannot be put. This policy puts a complete
embargo for all times that no such self financing institution can be
allowed to be established. Such policy restricting future discretion is
not reasonable, in any manner. (emphasis supplied)
17. After holding that the fundamental rights of parties to receive
education and to impart education cannot be restricted by a policy decision,
but only by a law enacted by a competent legislature and not by executive fiat,
it was unequivocally held that such policy restricting future discretion is
arbitrary and cannot withstand the test of reasonableness.
18. In State of Kerala v KMCT Polytechnic College Mampara
MANU/KE/1255/2017, a Division Bench of this Court had occasion to consider
the embargo placed by the State Government by a policy decision in not
granting sanction for commencing new unaided colleges in the self-financing
sector. After considering the conspectus of the enactments as well as the
principles laid down by the Apex Court it was held that the right to establish an
educational institution like the polytechnic is no more the prerogative of the
State nor a privilege to be conferred by the statute, for this matter has been
settled by the Apex court in TMA Pai Foundation and Ors. V. State of
Karnataka and Ors. [(2002) 8 SCC 481] wherein it was held that setting up
of educational institution comes within the expression 'occupation' as
contemplated under Article 19(1)(g) of the Constitution and it is part of a
fundamental right. It was further held that a fundamental right cannot be
abrogated by a State much less by a simple policy decision. It was also held
that any policy of the State in such matters would be repugnant to the
authority of the Central Council under the Central Act and would be void. In
that view of the matter, I am of the considered opinion that the policy decision
taken by the State to interdict self-financing institutions from commencing new
courses in the State cannot stand legal scrutiny and cannot be sustained.
19. The next question is whether an institution affiliated with the APJ
Abdul Kalam Technological University is required to obtain approval/NOC from
the Director of Technical Education before commencing new courses and
whether the DTE is required to obtain the views of the University while
considering the said request.
20. Ext.P3 would reveal that the institution is running B.Tech and PG
courses in various disciplines after obtaining affiliation from APJ Abdul Kalam
Technological University. Ext.P3 would also reveal that the AICTE has granted
extension of approval for the conduct of 5 Diploma level courses in Artificial
Intelligence and Machine learning, Cyber Forensics and Information Security,
Mechatronics, Automation and Robotics, and Civil and Environmental
Engineering with an intake of 60 seats each. Now if the Approval Process
Handbook issued by the AICTE is perused, it can be seen that paragraph 2.9 of
the APH provides for the procedure to start a new Programme/ Level in the
existing Institutions. It says that to start a new Programme/ Level, the
applicant shall apply on AICTE Web-Portal along with the Extension of
Approval for the existing Programme(s) and Course(s) with the additional
documents as per Appendix 17 of the Approval Process Handbook. In Appendix
17, paragraph 17.3 states that a Non-Objection Certificate from affiliating
University/Board in Format No.2 has to be submitted. Format No.2 contains
various information that is to be supplied and the same has to be signed by
the Registrar/Director of the affiliating University/Board.
21. At this juncture, it needs to be mentioned that the AICTE has not
prohibited the sharing of laboratory resources. Appendix 4 of the Approval
Process Handbook, 2021-22 deals with 'Norms for Land and Built-up Area
requirements of the Technical Institutions'. It details the manner in which
resources are to be shared between Diploma and Degree level courses.
Furthermore, Clause 2.14.1 provides that existing Institutions shall expand
their activities by addition of new/additional Course(s)/Divisions to, among
other reasons, increase the utilization of Infrastructure available in the
Technical Institutions, adhering to requirements of approved student intake. In
other words, AICTE encourages the institution to maximize the utilization of
existing resources. Clause 2.9.1 of the handbook while enumerating
requirements and eligibility of existing institutions seeking affiliation for a new
course, provides for a combined built-up area and emphasises that common
facilities are to cater to the requirements of the total approved intake of
students.
22. Insofar as sanctioning of Diploma courses are concerned, the
same is within the exclusive domain of the Government. It is the Director of
Technical Education, who acts as the affiliating Board. The 5th respondent
University cannot claim that they have anything to do with the grant of
approval for Diploma courses.
23. The records would reveal that it was after obtaining extension of
approval from the AICTE that the petitioner had applied for approval/NOC from
the Board. However, their request was rejected on the sole ground that the
State has taken a policy decision not to grant affiliation for private self-
financing institutions. This Court has already held that the said policy of the
State cannot be sustained under law.
24. It is the contention of the University that they need to be satisfied
that the conduct of new courses would not be detrimental to the interest of
the students pursuing the Engineering course. This contention is put forward
by the University based on the A.P.J. Abdul Kalam Technological University Act,
2015, and the First Statute of the A.P.J. Abdul Kalam Technological University
(hereinafter referred to as "the First Statute" for the sake of brevity) which
came into effect on 7.8.2020.
25. In this context, it would be relevant to note that it was with a view
to regulate technical education in the State that the State of Kerala enacted
the A.P.J. Abdul Kalam Technological University Act, 2015 (hereinafter referred
to as "the University Act"). Section 5 of the Act deals with the objects of the
University. It says that the University is bound to ensure the academic
standards of all colleges and institutions and to improve the learning skills of
students and improve the academic standards of the students who join the
colleges affiliated with the University. Section 8 of the University Act provides
for the power and functions. It says that the University shall among other
things have powers and functions to lay down the norms and standards for the
establishment, maintenance, administration, supervision and recognition of
colleges and centres maintained by the University, to withdraw affiliation of
colleges obtained in violation of Statutes of the University, to confer academic
autonomy to affiliated colleges, institutions or a department of the affiliated
colleges or institutions or a department maintained by the University, to
provide for the inspection of affiliated colleges etc.
26. The First Statute of the A.P.J. Abdul Kalam Technological
University (hereinafter referred to as "the First Statute" for the sake of brevity)
came into force on 7.8.2020. The statute provides for conditions and
procedures for affiliation of colleges and for withdrawing the affiliation of
colleges. Chapter VI clause (3) of the First Statute says that approval of the
Government as well as the AICTE is to be produced if any affiliated institution
requires to commence new courses, to modify existing courses, increase or
decrease seats etc. Clause (5) of Chapter VI specifically interdicts the
institution from commencing new courses in the affiliated college without the
permission of the affiliating University. In view of the above provisions to
which the petitioner is bound, they cannot be heard to contend that they are
entitled to commence new courses in the institution without the concurrence of
the University
27. In APJ Abdul Kalam Technological University and another
v. Jai Bharat College of Management and Engineering Technology and
Ors. [(2021) 2 SCC 564], it was held by the Apex Court that while it is not
open to the Universities to dilute the norms and standards prescribed by the
AICTE, it is always open to the Universities to prescribe enhanced norms. It
was further held by relying on Bharathidasan University and Another v.
All India Council for Technical Education and Ors. [(2001) 8 SCC 676]
that AICTE is not a superpower with a devastating role undermining the status,
authority and autonomous functioning of the Universities in areas and spheres
assigned to them.
28. It is in this context that the objection raised by the University in
commencing new courses in the affiliated institutions assume significance. It
is undisputed that the University had granted affiliation after a detailed
inspection by a team of officers for ascertaining as to whether the amenities,
infrastructural facilities and faculty were sufficient to impart good education as
per the norms fixed by the University for the students pursuing B.Tech degree.
Before permitting the commencement of new courses, it is the duty of the
University as per the provisions of the Act and the Statute to ensure that the
students pursuing the Engineering course are not put to a disadvantage by
sharing the infrastructural resources with the proposed new course. The
University is obliged to issue degrees and its reputation is inextricably
intertwined with the fate and performance of the students . In that view of the
matter, their role cannot be under emphasised. The Universities are ranked
according to the quality of education and the standards maintained by them on
parameters such as a) teaching, learning and resources, b) Research and
professional practice; c) Graduation outcomes; d) Outreach and inclusivity and
Peer perception. The 5th respondent University is therefore bound to ensure
that the students who are pursuing their Engineering Degree in the institution
are not affected by the additional burden placed by the Institution by admitting
new students. If the institution has earmarked separate buildings,
infrastructure, workshops, libraries and labs for their students of the new
course without the facilities of the Engineering Students being affected, the
University cannot possibly contend that approval cannot be granted.
29. I find that it was by Ext.R2(a) order dated 16.09.2021 that the
request for approval for commencing new Diploma courses was rejected by the
2nd respondent. The only reason stated is that an adverse report was
submitted by the University. Furthermore, Ext.R2(a) order does not reveal
that the 2nd respondent had heard the petitioner before passing such an
order. This is clearly in violation of the principles of natural justice. In that view
of the matter, I am of the considered opinion that the 2nd respondent is
bound to reconsider the request made by the petitioner and take a decision
with notice to the petitioner as well as the University. While taking a decision,
the 2nd respondent would be entitled to peruse the inspection report
submitted by the University and their views. If the petitioner is in possession
of the necessary infrastructure in the form of separate buildings, workshops,
labs, libraries and other amenities to provide good quality education to the
students pursuing the degree level as well as diploma level courses, then
neither the University nor the DTE can stand in the way of the petitioner
conducting the said courses. On the other hand, if the petitioner is not in
possession of the necessary infrastructure mentioned above and the faculty to
pursue both the courses simultaneously without causing a strain on the
resources of the Engineering students, the affiliating University will be well
justified in refusing the grant of assent to the DTE. It is for the DTE to
consider the matter in all its perspectives and take a decision with the interest
and welfare of the students in mind and without affecting the right of the
petitioner to impart education and in strict compliance with the relevant rules
and regulations. Before taking a decision the DTE shall also inspect the
institution and its premises.
30. Having considered the entire facts and circumstances, I dispose of
this Writ Petition by issuing the following directions.
a) Ext.P5 and P7 orders issued by respondents 1 and 2 are set aside.
b) There will be a direction to the 2nd respondent to consider the
application for NOC/Approval afresh. Before taking a decision,
the 2nd respondent shall inspect the petitioner institution, take
note of the report of the committee constituted by the 5th
respondent and take a decision as directed above.
c) If the DTE is satisfied that the petitioner is having the
infrastructure and the amenities to conduct both the courses
simultaneously, it is for the said authority to grant approval
without being restricted by any policy decision taken by the
State Government. Appropriate orders shall be passed within
a further period of four weeks from the date of receipt of a
copy of the report from the University as directed above.
Before passing orders, the petitioner as well as the 5th
respondent shall be heard.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
APPENDIX OF WP(C) 17341/2021
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE LETTER DATED 29.3.2021
SUBMITTED BEFORE THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE LETTER NUMBERED AS
SNIT/104/2/DTE/2021 DATED 15.6.2021
SUBMITTED TO THE 2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE LETTER NUMBERED AS
F.NO.SOUTH-WEST/1-9320791846/2021/EOA AND
DATED 15.7.2021 ISSUED BY THE 4TH
RESPONDENT TO THE 1ST RESPONDENT.
Exhibit P4 A TRUE COPY OF THE LETTER NUMBERED AS
SNIT/105/3/DTE/2021 AND DATED 16.7.2021
SUBMITTED TO THE 2ND RESPONDENT.
Exhibit P5 A TRUE COPY OF THE LETTER NUMBERED AS
NO.LI/13638/21/DTE AND DATED 30.6.2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED
29.7.2021 IN W.P.(C) NO.14736/2021 ON THE
FILES OF THIS HON'BLE COURT.
Exhibit P6(A) A TRUE COPY OF THE JUDGMENT DATED
13.8.2021 IN W.P.(C) NO.14892/2021 ON THE
FILES OF THE HON'BLE COURT.
Exhibit P6(B) A TRUE COPY OF THE JUDGMENT DATED
13.8.2021 IN W.P.(C) NO.12559/2021 ON THE
FILES OF THIS HON'BLE COURT.
Exhibit P7 A TRUE COPY OF THE LETTER NUMBERED AS
NO.L1/18540/21/DTE AND DATED 28.7.2021
Exhibit P8 A TRUE COPY OF THE LETTER DATED 27.7.2021
SUBMITTED BY THE PETITIONER BEFORE THE 5TH
RESPONDENT
Exhibit P9 A TRUE COPY OF THE JUDGMENT DATED
26.8.2020 IN W.P.(C) NO.17630 OF 2020 ON
THE FILES OF THIS HON'BLE COURT.
Exhibit P10 A TRUE COPY OF THE JUDGMENT DATED
11.9.2020 IN W.P.(C) NO.18264/2020 ON THE
FILES OF THIS HON'BLE COURT.
Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED
13.8.2021 IN W.A NO.1060/2021 ON THE FILES
OF THIS HON'BLE COURT.
RESPONDENTS' EXHIBITS:
ANNEXURE R2(A) TRUE COPY OF ORDER DATED 16.09.2021
EXHIBIT R5(A) TRUE COPY OF THE REPORT OF INSPECTION
CONDUCTED BY THE INSPECTION COMMITTEE AT
SREE NARAYANA INSTITUTE OF TECHNOLOGY,
ADOOR DATED 06.09.2021
EXHIBIT R5(B) TRUE COPY OF THE LETTER
NO.KTU/ASST10(ADMIN)3594/2021 DATED
10/09/2021 SENT BY THE REGISTRAR OF THE
UNIVERSITY TO THE DIRECTOR OF TECHNICAL
EDUCATION, THIRUVANANTHAPURAM, FORWARDING
EXT.R5(A) REPORT.
