Kerala High Court
Sreepathy Institute Of ... vs State Of Kerala on 6 October, 2021
WP(C) NO. 15358 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. 15358 OF 2021
PETITIONER:
SREEPATHY INSTITUTE OF MANAGEMENT AND TECHNOLOGY
REP. BY ITS PRINCIPAL, VAVANOOR, KOOTTANAD, PALAKKAD
DISTRICT-679 533.
BY ADVS.
S.KRISHNAMOORTHY
SNEHA ROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF
HIGHER EDUCATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAAM-695 001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
PADMA VILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM,
PIN-695 023.
3 STATE BOARD OF TECHNICAL EDUCATION
REP BY ITS SECRETARY, FORT P.O.,
THIRUVANANTHAPURAM-695 023.
4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
REPRESENTED BY MEMBER SECRETARY, NELSON MANDELA
MARG, VASANT KUNJ, NEW DELHI-110 033.
5 ADDL.R5-APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR CET CAMPUS, TRIVANDRUM
- 695 016
ADDL.R5 IS IMPLEADED AS PER ORDER DATED 7/9/21 IN IA
3/21 IN WP(C) 15358/2021.
BY ADVS.
WP(C) NO. 15358 OF 2021 2
SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION - AICTE
ELVIN PETER P.J.
SRI RAMANAND KB 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. 15358 OF 2021 3
JUDGMENT
The Sreepathy Institute of Management and Technology, the petitioner
herein, has been conducting an Engineering College since the year 2009. They
have approached this Court seeking to quash Ext.P3 letter issued by the 2nd
respondent, as per which the application filed by the petitioner seeking No
Objection Certificate (NOC) for starting Diploma level courses in the College
was refused to be considered on the ground that NOC cannot be granted to
Private Self-financing Institutions. The petitioner also challenges Ext.P4 which
places an interdiction in granting NOC to private self-financing institutions and
limits the same to Government controlled institutions run by CAPE, where
admissions are purely on merit.
2. The facts of the case as borne out from the pleadings and records
are as under:
The petitioner institution is conducting Degree Level Engineering courses
after obtaining affiliation from the APJ Abdul Kalam Technological University,
the additional 5th respondent herein. While so, the All India Council for
Technical Education (AICTE) invited applications for granting additional
Diploma courses in Engineering College premises. After conducting an
inspection, the AICTE granted Ext.P1 approval for conducting courses in
Artificial Intelligence, Automation and Robotics, Civil and Environmental
Engineering for the academic year 2021-2022. As per the Approval Process
Handbook issued by the AICTE, the applicant institution is required to obtain
NOC from the State Government. In the said circumstances, the petitioner
submitted Ext.P2 request, which came to be rejected by Ext.P3 letter on the
ground that the policy of the Government is not to grant NOC to Private Self-
financing Institutions for starting new courses in the academic year 2021-
2022. In Ext.P3, reference is made to Ext.P4 which says that NOC can be
granted only to Government controlled institutions run by CAPE where
admission is purely on merit. The petitioner contends that the stand taken by
the 1st respondent is clearly arbitrary and is violative of the rights guaranteed
under the Constitution. It is in the afore circumstances that the petitioner is
before this Court seeking the following reliefs:
i) to issue a writ of certiorari or other appropriate writ, order or direction
to call for the records leading to Ext.P3 and P4 order issued by the
2nd respondent as well as the 1st respondent and to quash the
same.
ii) to issue a writ of mandamus or other appropriate writ, order or
direction directing the 2nd respondent to issue NOC for starting
new diploma courses approved by AICTE in Exhibit P1 for the
academic year 2021-22.
iii) to issue a writ of mandamus or other appropriate writ, order or
direction directing the 2nd respondent to grant affiliation to the
petitioner institution for conducting diploma courses in Artificial
Intelligence and Machine learning, Automation & Robotics, Civil &
Environmental Engineering in pursuance to Ext.P1 Approval order
issued by the AICTE.
3. Before adverting to the counter affidavits filed by the respondents,
it needs to be mentioned that the prayer of the petitioner for grant of
provisional affiliation at the interlocutory stage was rejected by this Court and
it was the subject matter of an appeal. The sequence of events that led to the
rejection and the orders passed by their Lordships of the Division Bench has
some relevance for adjudicating the issues involved.
4. Originally, the APJ Abdul Kalam Technological University was not
arrayed as a party to this proceeding. When the matter had come up for
admission, the petitioner had sought an interim direction to the respondents 1
and 2 to provisionally grant NOC for all the Diploma courses approved by
AICTE in Ext.P1 and to conduct an inspection, if needed, for granting affiliation
for the current academic year 2021-2022. The petitioner had also sought for
including the petitioner institution in the prospectus for the purpose of allotting
students for the current academic year.
5. The said request was objected to by the APJ Abdul Kalam
Technological University. The University had contended that after having
obtained affiliation from the University, the petitioner was bound by the
Approval Process Handbook, the University Act and the First Statute to obtain
the concurrence of the University before starting Diploma courses in the
affiliated institution. This Court heard the rival sides and rejected the
application for interim directions. This Court took the view that grant of
approval without the knowledge and concurrence of the affiliating University
would imperil the studies of students who are pursuing their Engineering
course.
6. The matter was taken in appeal and the Division Bench of this
Court by judgment dated 13.08.2021 in Writ appeal No. 1060 of 2021 directed
the petitioner to prefer an application before APJ Abdul Kalam Technological
University to cause inspection of their College, and to ascertain as to whether
the B.Tech degree courses can be conducted in separate buildings without
causing any hindrance to the students pursuing their Engineering course. It
was further ordered that on receipt of inspection reports from the University, if
the Director of Technical Education is satisfied that the courses are conducted
in two different places without causing hindrance to the continuance of the
B.Tech degree Engineering course, appropriate orders could be passed.
7. It appears that inspection was conducted and a report has been
forwarded to the Director of Technical Education as ordered by this Court. A
copy of the report has also been placed before this Court by the 5th
respondent. Based on the preliminary report submitted by the Inspection
team, the request for NOC has been rejected by the 2nd respondent.
8. With the above facts in mind, the contentions of the respondents
can be adverted to.
9. In the statement filed by the learned standing counsel for the 4th
respondent, the AICTE, it is stated that the institute was approved by the
AICTE for conducting courses in Engineering and Technology. The AICTE has
also granted subsequent extension of approval to the institute up to the
academic year 2020 - 2021. The petitioner institute applied for three new
diploma courses before the academic year 2021-22 and in terms of the
provisions of the Approval Process Handbook, approval was granted for all the
Diploma courses based on 'Nil deficiency' reported by the Expert Visit
Committee (EVC) along with extension of approval for existing courses for
academic year 2021 - 2022. It is further stated that AICTE has no role to play
in the matter concerning the grant of NOC.
10. During the proceedings the APJ Abdul Kalam Technological
University was impleaded as additional 5th respondent.
11. In the affidavit filed by the additional 5th respondent it is stated
that as directed by this Court an inspection was conducted by a committee and
Exhibit R5(a) report has been prepared. It is borne out from the report of the
committee that the institute is planning to share the infrastructural facilities
and lab facilities for the proposed diploma course which are presently being
used for the existing B.Tech programs. It is further stated that one academic
block of the institute could not be inspected since the said building was being
utilised by the grama panchayat authorities as a Covid first-line treatment
centre as per the direction of the District Collector. It is also stated that steps
are being taken to conduct the inspection of the premises at the earliest.
12. In response, an affidavit has been filed by the principal of the
institution stating that the institution intends to run diploma courses in building
No.06/162B comprised of 4688 m². The said building has been allotted to the
local authority as Covid Domicile care centre. It is also stated that the main
building is divided into three parts and in case Covid centre could not be
vacated before the commencement of the current academic year, the courses
can be started in the main building, which is having an area of more than
12138 m². It is also stated that the institution is having all the infrastructure
facilities for B.Tech courses as well as diploma courses. It is stated that the
inspection team did not care to visit the building which is being used as a
Covid domiciliary centre. It is further stated that without appreciating the facts
a report has been submitted before the DTE by the University and the DTE in
turn has refused NOC by Exhibit P12 order purely based on the report. The
order has been passed on the premise that the report of the respondent has
revealed that the institution is proposing to share the infrastructural and lab
facilities for the proposed diploma course with the existing B Tech program.
Exhibit P13 photographs have been produced to substantiate that there is
sufficient infrastructure to conduct both the courses simultaneously. It is also
stated that for some of the Colleges in the State where engineering courses
are conducted, the DTE has granted approval without NOC from the
University. It is also stated that after the issuance of the rejection order by the
DTE, the University has sent an email communication on 23.9.2021 informing
that they are proposing to visit the institution on 29.9.2021.
13. The University was asked to respond to the assertions made by
the petitioner that other colleges are conducting diploma courses in
engineering Colleges without obtaining permission from the University. In
response, it is stated that the 10 colleges, the details of which have been
mentioned by the petitioner and which are stated to be conducting diploma
courses, had never sought for no objection certificate from the University. It is
also stated that the University has not issued NOC to the said colleges for
conducting diploma courses.
14. I have heard Sri. S. Krishnamoorthy, 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.
15. Sri. Krishnamoorthy submitted that once AICTE 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. The learned counsel would
refer to Exhibit P13 photographs to bring home his point that there is the
required infrastructure and amenities to carry out degree courses and diploma
courses without the students of one course being affected in any manner by
the conduct of the other course. Reliance is also placed on Exhibit P11
Certificate issued by the grama panchayat detailing the area of the buildings
situated in the premises of the institution and it is contended that there are as
many as three separate buildings in an area of about 10.2 acres of land and it
cannot be contended that there is any deficiency in infrastructure. Finally, it is
submitted that after considering an incomplete report, the 2nd respondent has
refused to grant permission to conduct diploma level courses, that too without
seeking any explanation from the petitioner. 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.
16. Sri. Ramanand, the learned Senior Government Pleader submitted
that it was pursuant to the orders issued by the Division bench that the
University had conducted an inspection and forwarded the report to the DTE.
The report clearly reveals that there is sharing of infrastructure. Based on the
said report Exhibit P12 rejection order was issued. It was also contended that
the AICTE Handbook clearly states that the NOC of the affiliating
University/Board is a necessary requisite.
17. Sri. V. Sajith Kumar, the learned standing counsel appearing for
the AICTE submitted that the AICTE has considered all relevant aspects while
issuing Ext.P1 extension of approval.
18. Sri. Elvin Peter, the learned standing counsel appearing for the
affiliating University, submitted that sanctioning of diploma courses is within
the exclusive domain of the Government and the DTE. The University has
nothing to do with the same. However, it is contended that if the intention of
the petitioner is to use the facilities earmarked for the students pursuing the
engineering Course for the proposed new courses, then permission of the
University needs to be obtained. It is submitted by the learned counsel that
the petitioner cannot be heard to contend that the assent from the affiliating
University cannot be insisted as the order passed by this Court holding so has
been confirmed by the Division bench and directions have also been issued to
the University to conduct an inspection. 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 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 are 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.
19. I have considered the submissions advanced.
20. 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 while considering the said request
21. 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)
22. 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.
23. 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.
24. 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.
25. Ext.P1 would reveal that the institution is running B.Tech courses
in various disciplines after obtaining affiliation from APJ Abdul Kalam
Technological University. Ext.P1 would also reveal that the AICTE has granted
extension of approval for the conduct of 3 Diploma level courses in Artificial
Intelligence and Machine learning, 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 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.
26. 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.
27. 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.
28. 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.
29. For all practical purposes, this ought to have been the end of the
matter but for the contentions advanced by the University that their
concurrence is also required as the new diploma level courses are proposed to
be conducted in a college affiliated with the University. 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 force on
7.8.2020.
30. 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.
31. 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 as an affiliated institution, they cannot be heard
to contend that they are entitled to commence new courses in the institution
without the concurrence of the University
32. Sri. Krishnamoorthy, the learned counsel submitted that the AICTE
Act falls under Entry 66 of List I of the Seventh Schedule of the Constitution
and when the Approval Process Handbook does not envisage the institution to
get assent from the University for starting Diploma Level courses, the
University statute which falls under Entry 25 of List III cannot be relied upon
to abridge the Central Statute. The contention forcefully advanced by the
learned counsel does not impress me. As held by the Apex Court in APJ Abdul
Kalam Technological University and another v. Jai Bharat College of
Management and Engineering Technology and Ors. [(2021) 2 SCC 564],
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.
33. 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 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 BTech 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.
34. I am also not impressed with the contention of Sri.Krishnamoorthy
that the University cannot have any say in the matter and that the DTE is not
required to obtain their views while considering the application for
approval/NOC for commencing new courses. It would be pertinent to note
that against the interim order refusing the grant of provisional affiliation, the
petitioner had filed W.A. No. 1060/2021 and their Lordships while disposing of
the Writ Appeal had occasion to observe as follows:
" 8. On the above said aspect, Mr. S. Krishnamoorthy, learned
counsel for the appellant in W. A. No. 1062 of 2021, submitted that
already an application has been submitted to the Registrar, APJ
Abdul Kalam Technological University, to cause inspection, and
submit a report to the affiliating authority, namely, the Director of
Technical Education, Thiruvananthapuram.
10. xxxxxxxxxxxxxxxxxxxxxxxxxxxx
11. Placing on record the submission of the learned counsel for the
appellants, permission is granted to submit necessary applications to
APJ Abdul Kalam Technological University, to cause inspection of the
respective colleges, to ascertain as to whether B. Tech Degree
Courses are conducted in separate buildings, and without causing
any hindrance, Diploma in Engineering courses are conducted in
separate buildings.
12. On receipt of the applications from the respective colleges /
appellants, Registrar, APJ Abdul Kalam Technological University, is
directed to cause inspection, and submit reports to the affiliating
authority, with supporting documents.
13. Though the learned counsel for the appellants sought for a
direction to include the names of the respective colleges, in the list of
colleges maintained for allotment of students, we are not inclined to
grant any such directions as prayed for, nor inclined to direct
provisional affiliation to the Diploma Course, by the Director of
Technical Education, Thiruvananthapuram, pending disposal of the
inspection, submission of reports, and the consequent decision to be
taken by Director of Technical Education, Thiruvananthapuram, the
affiliating authority.
14. At this juncture, at best, we can only direct the Registrar, APJ
Abdul Kalam Technological University, to cause inspection of the
abovesaid institutions, as expeditiously as possible, bearing in mind
the time schedule already prescribed for allotment of the students.
Inspection be caused and reports be submitted to the Director of
Technical Education, Thiruvananthapuram, as expeditiously as
possible.
15. Mr. Elvin Peter P. J., learned counsel for the APJ Abdul Kalam
Technological University, shall instruct the said University, to explore
the possibility of conducting the inspection on 16.08.2021 or
17.08.2021, as the case may be.
16. If on receipt of inspection reports from the University, the
Director of Technical University, Thiruvananthapuram, is satisfied
that the courses are conducted at two different places, without
causing hindrance to the continuance of B. Tech Degree Engineering
course as stated supra, appropriate orders be passed."
35. Their Lordships held that the Director of Technical Education
should be satisfied that the courses are conducted in two different places
without hindrance to the continuance of the B Tech Degree Engineering
Course. It was in pursuance of the aforesaid directions that the inspection
committee of the University had conducted an inspection and Ext.R5(b) report
dated 18.8.2021 was prepared and submitted before the Directorate of
Technical Education. In the said report, it is stated that the University cannot
grant NOC to the College to conduct Diploma programme and other
programmes, in the land or buildings earmarked by the institution for the
conduct of B.Tech courses. It was on the basis of the said report that Ext.P12
order dated 31.8.2021 was issued by the 2nd respondent. However, I find
that later an email has been sent by the Registrar of the Technological
University on 23.9.2021 wherein it is stated that they propose to complete the
inspection of one of the academic blocks which is now being used as the
COVID First-Line Treatment Centre. The petitioner has produced Ext.P14 letter
issued by the Secretary of the Nagalassery Grama Panchayat requesting that
they be permitted to occupy one of the buildings for a further period so that
they can continue to use the auditorium, the workshops, the canteen, the
classrooms etc. as a COVID domiciliary care centre.
36. I find that it was by Ext.P12 order dated 31.8.2021 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. Ext.P16 email sent by the University to the
petitioner reveals that the inspection of the entire blocks had not been
completed. Furthermore, Ext.P12 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.
37. Having considered the entire facts and circumstances, I dispose of
this Writ Petition by issuing the following directions.
a) Ext.P3 and P4 orders issued by the respondents 1 and 2 are set aside.
b) The 5th respondent shall forward a conclusive report after examining
all facilities in the institution and forward the same to the 2nd
respondent within a period of two weeks from 6.10.2021.
c) 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.
d) 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) 15358/2021
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE 4TH
RESPONDENT DATED 15.7.2021
Exhibit P2 TRUE COPY OF THE REQUEST DATED 18.6.2021
FILED BY THE PETITIONER
Exhibit P3 TRUE COPY OF THE LETTER DATED 5.7.2021
ISSUED BY THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF THE LETTER DATED 29.6.2021
ISSUED BY THE 1ST RESPONDENT
Exhibit P5 TRUE COPY OF THE JUDGMENT IN WA NO
1239/2017 DATED 22.8.2017 OF THE HON'BLE
COURT
Exhibit P6 TRUE COPY OF THE INTERIM ORDER IN WP
13009/2020 DATED 2.7.2020 OF THE HON'BLE
COURT
Exhibit P7 TRUE COPY OF THE INTERIM ORDER IN WPC
13009/2020 DATED 15.7.2021 OF THIS HON'BLE
COURT
Exhibit P8 TRUE COPY OF THE RELEVANT PORTION OF THE
PROSPECTUS SHOWING THE DATES
Exhibit P9 IN TRUE COPY OF THE REQUEST BEFORE THE
I.A.NO.4 OF 2021 ADDITIONAL 5TH RESPONDENT DATED
19/07/2021.
Exhibit P9 IN TRUE COPY OF THE JUDGMENT IN WRIT APPEAL
I.A.NO.5 OF 2021 NO.1062/21 DATED 13.8.21.
Exhibit P10 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
NAGALASSERY GRAMA PANCHAYATH DATED
28.6.2021.
Exhibit P11 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
SECRETARY, NAGALASSERY PANCHAYATH.
Exhibit P12 TRUE COPY OF THE REJECTION LETTER DATED
31.8.2021 OF THE 2ND RESPONDENT.
Exhibit P13 TRUE COPY OF THE PHOTOGRAPH OF BUILDINGS
WITH DIFFERENT DIMENSIONS
Exhibit P14 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
NAGALASSERY GRAMA PANCHAYATH DT.6-9-2021
Exhibit P15 RELEVANT PORTION OF THE WEBSITE
PUBLICATION FOR SINGLE WINDOW ADMISSION TO
POLYTECHNIQUE COLLEGES 2021-22 PUBLISHED
BY 2ND RESPONDENT.
Exhibit P16 TRUE COPY OF THE EMAIL COMMUNICATION DATED
23/9/2021 ISSUED BY THE ADDITIONAL 5TH
RESPONDENT.
Exhibit P17 TRUE COPY OF THE RULES AND REGULATIONS FOR
AFFILIATION FOR DIPLOMA LEVEL TECHNICAL
PROGRAMMES ISSUED BY THE 3RD RESPONDENT
RESPONDENTS' EXHIBITS:
Exhibit R5(A) TRUE COPY OF THE INSPECTION REPORT
CONDUCTED AT SREEPATHY INSTITUTE OF
MANAGEMENT AND TECHNOLOGY, KOOTANNAD
EXHIBIT R5(B) TRUE COPY OF THE LETTER
NO.KTU/ASST10(ADMIN)3594/2021 DATED
18/08/2021 SENT BY THE REGISTRAR OF THE
UNIVERSITY TO THE DIRECTOR OF TECHNICAL
EDUCATION, THIRUVANANTHAPURAM ALONG WITH
THE INSPECTION REPORT.
