Kerala High Court
Ukf College Of Engineering & ... vs The State Of Kerala on 21 October, 2021
WP(C)Nos.17933 & 16184 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943
WP(C) NO. 16184 OF 2021
PETITIONER/S:
UKF COLLEGE OF ENGINEERING & TECHNOLOGY,
(REPRESENTED BY ITS DIRECTOR),
PARIPPALLY, KOLLAM DISTRICT-691302.
BY ADVS.
PRAVEEN K. JOY
T.A.JOY
E.S.SANEEJ
M.P.UNNIKRISHNAN
M.K.SAMYUKTHA
N.ABHILASH
DEEPU RAJAGOPAL
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER
EDUCATION DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM-695023.
3 STATE BOARD OF TECHNICAL EDUCATION,
REPRESENTED BY THE DIRECTOR OF TECHNICAL EDUCATION,
OFFICE OF THE DIRECTOR, TECHNICAL EDUCATION,
THIRUVANANTHAPURAM-695023.
4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI-
110070.REPRESENTED BY ITS SECRETARY.
WP(C)Nos.17933 & 16184 OF 2021 2
5 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR, CET CAMPUS,
TRIVANDRUM-695016.
BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN
SAJITH KUMAR V., SC
ELVIN PETER P.J., SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.10.2021, ALONG WITH WP(C).17933/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C)Nos.17933 & 16184 OF 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943
WP(C) NO. 17933 OF 2021
PETITIONER/S:
UKF COLLEGE OF ENGINEERING AND TECHNOLOGY
PARIPPALLY, KOLLAM - 691302, REP. BY ITS DIRECTOR,
AMRITHA BASANTH, AGED 33 YEARS, W/O.DR.PRASOBH
K.PRABHA, RESIDING AT LOVELY HAVEN, CHURCH NAGAR,
FIRST STREET CN-122A, ANGAMALY, ERNAKULAM - 683 572.
BY ADVS.
PRAVEEN K. JOY
E.S.SANEEJ
M.P.UNNIKRISHNAN
M.K.SAMYUKTHA
N.ABHILASH
DEEPU RAJAGOPAL
SANDRA S.KUMAR
ANILKUMAR P.
SWAPNA C.P
T.A.JOY
RESPONDENT/S:
1 THE STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT, HIGHER
EDUCATION DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM - 695 023.
3 STATE BOARD OF TECHNICAL EDUCATION
REP. BY THE DIRECTOR OF TECHNICAL EDUCATION, OFFICE
OF THE DIRECTOR, TECHNICAL EDUCATION,
THIRUVANANTHAPURAM - 695 023.
4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI - 110
070, REP. BY ITS SECRETARY.
WP(C)Nos.17933 & 16184 OF 2021 4
5 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR, CET CAMPUS, TRIVANDRUM
- 695 016.
BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN
SAJITH KUMAR V., SC
ELVIN PETER P.J., SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.10.2021, ALONG WITH WP(C).16184/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C)Nos.17933 & 16184 OF 2021 5
JUDGMENT
The UKF College of Engineering and Technology, the petitioner herein,
has been conducting an Engineering College in the self-financing sector since
the year 2009. They have approached this Court being aggrieved by the
refusal on the part of the official respondents in granting No Objection
Certificate (NOC) for starting Diploma level courses in the College. Since
common issues are involved, both these writ petitioners are taken up together
and are disposed of by a common judgment. For ease and clarity, the
pleadings and Exhibits in W.P.(C) No.17933/2021 shall be referred to in this
judgment.
2. The facts of the case as borne out from the pleadings and records
are as under:
The petitioner states that they are an institution conducting Degree
Level Engineering courses after obtaining affiliation from the APJ Abdul Kalam
Technological University, the 5th respondent herein. It is contended that 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 an order of approval for
conducting courses in Civil and Environmental Engineering, Robotic Process
Automation and Renewable Energy 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 a request for issuance of NOC before
the 2nd respondent. The request was however rejected by Exhibit P8 order.
The reason stated in Exhibit P8 is 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. The petitioner contends that the stand taken by the
2nd respondent is clearly arbitrary and is violative of the rights guaranteed
under the Constitution.
3. Being aggrieved the petitioner approached this Court and filed
W.P.(C)No.16184 of 2021 seeking to quash Ext.P8 and for directions to the
respondents 2 and 3 to grant approval/affiliation to the Diploma Courses
sanctioned to the petitioner's College by the AICTE and for incidental reliefs.
4. The petitioner sought for an interim order seeking directions to
include petitioner's college for centralized allotment for Diploma Courses
provisionally and the same was rejected by this Court vide interim order dated
10.8.2021. The petitioner preferred W.A.No.1060/2021 and the same was
disposed of by a Division Bench of this Court. Paragraph Nos.14 to 17 are
extracted below for easy reference:-
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.
17. I. A. No. 1 of 2021 in W. A. No. 1062 of 2021 is allowed. APJ
Abdul Kalam Technological University, represented by its
Registrar, CET Campus, Trivandrum - 695 016, is impleaded as
additional 5th respondent in W. A. No. 1062 of 2021.
5. In compliance with the directions so issued, the 5th respondent
conducted an inspection and placed its report before the 2nd respondent.
Relying on the report of the University, the 2nd respondent proceeded to
reject the application on the ground that the conduct of the proposed diploma
courses may overlap with the smooth functioning of the B.Tech Courses. The
said order is under challenge in W.P.(C) 17933/2021. The petitioner has also
sought for the issuance of directions to the 2nd respondent to reconsider and
WP(C)Nos.17933 & 16184 OF 2021 8
take appropriate action to conduct diploma courses in the college.
6. I have heard Sri. Praveen K Joy, 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.
7. Sri. Praveen K Joy, the learned counsel would rely on the
extension of approval issued by the AICTE and it is submitted that by the said
order, the petitioner has been permitted to conduct Diploma courses in Civil
and Environmental Engineering, Robotic Process Automation and Renewal
Energy with an intake of 60 seats each. It is contended that once the AICTE
has granted approval, the State or its instrumentalities cannot take a stand
that it is against their policy to grant approval and would clearly offend 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. Reliance is also placed on a
judgment dated 26.8.2020 in W.P.(C) No.17630/2020 of this Court to bring
home his point that the application for NOC cannot be denied on the ground of
any policy decision of the Government.
8. 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.
WP(C)Nos.17933 & 16184 OF 2021 9
The report clearly reveals that there is sharing of infrastructure. Based on the
said report 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.
9. Sri. V. Sajith Kumar, the learned standing counsel appearing for
the AICTE submitted that the AICTE has considered all relevant aspects while
issuing extension of approval.
10. 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 the 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.
11. I have considered the submissions advanced.
12. 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.
13. 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)
14. 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
WP(C)Nos.17933 & 16184 OF 2021 16
arbitrary and cannot withstand the test of reasonableness.
15. 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 institutions come 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.
16. The next question is whether an institution affiliated with the APJ
Abdul Kalam Technological University is required to obtain approval/NOC from
WP(C)Nos.17933 & 16184 OF 2021 17
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.
17. 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
an 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.
18. 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
WP(C)Nos.17933 & 16184 OF 2021 18
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.
19. 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.
20. 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
WP(C)Nos.17933 & 16184 OF 2021 19
State cannot be sustained under law.
21. 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.
22. 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
WP(C)Nos.17933 & 16184 OF 2021 20
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.
23. 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 and 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.
24. Sri. Praveen, 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
WP(C)Nos.17933 & 16184 OF 2021 21
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.
25. 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
WP(C)Nos.17933 & 16184 OF 2021 22
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 underemphasised. 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.
26. I find that it was by Ext.P14 order dated 31.8.2021 in W.P(C)
No.17933/2021 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.P14 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
WP(C)Nos.17933 & 16184 OF 2021 23
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.
27. Having considered the entire facts and circumstances, I dispose of
these Writ Petitions by issuing the following directions.
a) Exhibit P9 order in W.P.(C) No.16184 of 2021 and Exhibit P 14
order in W.P.(C) No.17933 of 2021 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
WP(C)Nos.17933 & 16184 OF 2021 24
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
WP(C)Nos.17933 & 16184 OF 2021 25
APPENDIX OF WP(C) 16184/2021
PETITIONER (S) EXHIBITS:
Exhibit P1 TRUE COPY OF THE CIRCULAR
NO.L1/14874/20/DTE DATED 2-2-2021 ISSUED
BY THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE RELEVANT PORTION OF ORDER
DATED 28-6-2021 IN WP(C)NO.12559/2021 &
12595/2021 OF THIS HON.COURT.
Exhibit P3 TRUE COPY OF THE APPLICATION DATED 20.4.21
TO THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 30-7-
2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER F.NO.SOUTH-WEST/1-
9319056338/2021/EDA DATED 15-7-2021 ISSUED
BY THE ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION.
Exhibit P6 TRUE COPY OF THE APPLICATION DATED 20-7-
2021 ISSUED TO THE 2ND RESPONDENT FROM THE
PETITIONER'S COLLEGE.
Exhibit P7 TRUE COPY OF THE ACADEMIC CALENDAR 2021-22
OF ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION DATED 12-7-2021.
Exhibit P8 COPY OF THE PROSPECTUS FOR ADMISSION TO
POLYTECHNIC COLLEGES ALONG WITH ANNEXURE-I
ISSUED BY THE 2ND RESPONDENT.
Exhibit P9 COPY OF THE ORDER NO.L1/18540/21/DTE DATED
28-7-2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P10 COPY OF THE ORDER NO.173/2016
H.EDN.DEPT.DATED 22-8-2016 ISSUED BY THE
GOVERNMENT.
Exhibit P11 THE TRUE COPY OF THE LETTER SUBMITTED
BEFORE THE 2ND RESPONDENT DATED
20/08/2021.
Exhibit P12 TRUE COPY OF THE REVISED ACADEMIC CALENDAR
2021-22.
WP(C)Nos.17933 & 16184 OF 2021 26
Exhibit P13 THE TRUE COPY OF THE JUDGEMENT IN WA
1060/2021 DATED 13/08/2021.
RESPONDENT (S) EXHIBITS: NIL
WP(C)Nos.17933 & 16184 OF 2021 27
APPENDIX OF WP(C) 17933/2021
PETITIONER (S) EXHIBITS :
Exhibit P1 THE TRUE COPY OF THE CIRCULAR DATED
02/02/2021 ISSUED BY 2ND RESPONDENT.
Exhibit P2 THE TRUE COPY OF THE APPLICATION DATED
20/04/2021 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P3 THE TRUE COPY OF THE COMMUNICATION DATED
30/06/2021 ISSUED BY 2ND RESPONDENT.
Exhibit P4 THE TRUE COPY OF THE ORDER OF EXTENSION OF
APPROVAL DATED 15/07/2021 ISSUED BY THE
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION.
Exhibit P5 THE TRUE COPY OF THE APPLICATION DATED
20/07/2021 BEFORE THE 2ND RESPONDENT.
Exhibit P6 THE TRUE COPY OF THE REVISED ACADEMIC
CALENDAR 2021-22 OF ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION.
Exhibit P7 THE TRUE COPY OF THE RELEVANT PAGE OF THE
PROSPECTUS FOR ADMISSION TO POLYTECHNIC
COLLEGES OF 2ND RESPONDENT.
Exhibit P8 THE TRUE COPY OF THE ORDER DATED
28/07/2021 ISSUED BY 2ND RESPONDENT.
Exhibit P9 THE TRUE COPY OF THE JUDGMENT DATED
13/08/2021 IN WA 1060/2021 AND CONNECTED
CASE.
Exhibit P10 THE TRUE COPY OF THE REVISED ACADEMIC
CALENDAR DATED 13/08/2021 ISSUED BY ALL
INDIA COUNCIL FOR TECHNICAL EDUCATION.
Exhibit P11 THE TRUE COPY OF THE APPLICATION DATED
20/08/2021 BEFORE THE 2ND RESPONDENT.
Exhibit P12 THE TRUE COPY OF THE PHOTOGRAPHS SHOWING
SEPARATE ENTRANCE FOR DIPLOMA COURSE IN
THE PETITION'S COLLEGE.
WP(C)Nos.17933 & 16184 OF 2021 28
Exhibit P13 THE TRUE COPY OF THE INTERIM ORDER DATED
27/08/2021 IN WPC NO.16184/2021.
Exhibit P14 THE TRUE COPY OF THE ORDER DATED
31/08/2021 OF THE 2ND RESPONDENT.
Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 06-10-2021
IN WPC NO.15358/2021 OF THIS HON'BLE
COURT.
Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 06-10-2021
IN WPC NO.17341/2021 OF THIS HON'BLE
COURT.
RESPONDENT (S) ANNEXURES:
ANNEXURE R2 TRUE COPY OF THE REPORT DATED 17.08.2021.
ANNEXURE R5(A) TRUE COPY OF THE LETTER
NO.KTU/ASST10(ADMN)3594/2021 DATED
18.08.2021 SENT BY THE 5TH RESPONDENT
REGISTRAR TO THE DIRECTOR OF TECHNICAL
EDUCATION ALONG WITH THE REPORT.
