Kerala High Court
The Secretary - K. Velayudhan ... vs State Of Kerala on 21 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH
AGRAHAYANA, 1944
WP(C) NO. 35843 OF 2022
PETITIONER:
THE SECRETARY - K. VELAYUDHAN MEMORIAL TRUST
P.B. NO. 13, CHERTHALA,
ALAPPUZHA, KERALA, INDIA , PIN - 688524
BY ADVS.
ASWIN GOPAKUMAR
MAHESH CHANDRAN
ANWIN GOPAKUMAR
ADITYA VENUGOPALAN
NIKITHA SUSAN PAULSON
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF HIGHER EDUCATION - GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 DIRECTOR OF TECHNICAL EDUCATION
PADMA VILASAM ROAD,
EAST FORT, THIRUVANANTHAPURAM , PIN - 695001
3 STATE BOARD OF TECHNICAL EDUCATION
REPRESENTED BY ITS SECRETARY,
FORT P.O., THIRUVANANTHAPURAM, PIN - 695023
4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REPRESENTED BY MEMBER SECRETARY,
NELSON MANDELA MARG,
VASANT KUNJ, NEW DELHI , PIN - 110033
SMT PARVATHY K-GP; SR SAJITHKUMAR .V,SC
W.P (C) No.35843/2022
..2..
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P (C) No.35843/2022
..3..
JUDGMENT
An Educational Agency, said to be running an Engineering
College, impugns Ext.P3 - proceedings of the Director of
Technical Education (Director), issued to them on 22.09.2022,
saying that said Authority cannot grant a No Objection
Certificate (NOC) in their favour to start new diploma courses.
The petitioner points out that, Ext.P3 proceeds on the basis of
Exts.P4 and P5 earlier letters of the Government, in which, it
has been stated that a policy decision had been taken by them
that "NOC cannot be granted to the private self financing
institutions, but NOC can be granted to Government Controlled
institutions run by CAPE where admission is purely on the basis
of merit and to comply the court direction immediately"(sic).
They thus pray that Exts.P3, P4 and P5 be set aside, since it
goes counter to the various judgments of the Hon'ble Supreme
Court and that of this Court.
2. Smt.Nikitha Susan Paulson - learned counsel for the
petitioner, relied upon the judgment of a learned Division
Bench this Court in State of Kerala & Ors v. KMCT
Polytechnic College, Mampara [MANU/KE/1255/2017] and
W.P (C) No.35843/2022
..4..
that of the Hon'ble Supreme Court in Jaya Gokul Educational
Trust v. The Commissioner & Secretary to Government
Higher Education Department, Thriuvananthapuram,
Kerala State and Ors. [(2000) 5 SCC 231], to argue that
Government cannot take a blanket policy decision not to grant
NOC or to refuse to offer their views with respect to
applications seeking affiliation, particularly, when the 4th
respondent - All India Council for Technical Education (AICTE)
has already granted approval. She thus prayed that Exts.P3,P4
and P5 be set aside.
3. Smt.Parvathy Kottol - learned Government Pleader,
submitted that, as evident from Ext.P5, Government has taken
a policy decision that they will not offer NOC to private self
financing institutions. She argued that, therefore, the stand of
the Director in Ext.P3 cannot be found at fault.
4. Sri.Sajith Kumar - learned counsel appearing for the
AICTE, affirmed that his client has already granted approval to
the petitioner to start the diploma courses. He added that it is,
therefore, for the Government to air their views in this regard;
but that it is doubtful whether they can take an omnibus
W.P (C) No.35843/2022
..5..
position that they will not offer it as a policy decision.
5. I have considered the afore submissions and have
also examined the precedents cited by Smt.Nikitha Susan
Paulson.
6. It is indubitable that, in KMCT Polytechnic
College, Mambara (supra), a learned Division Bench of this
Court had taken the view that Government cannot take a
blanket decision to refuse NOC in every case, without even
considering the credentials or merits of the application. This
view has been cemented by the Hon'ble Supreme Court in
Jaya Gokul Educational Trust(supra) also. In paragraph 27
of the said judgment, the Hon'ble Supreme Court has declared
the law luculently as under.
"The so culed 'policy' of the State as mentioned in
the counter ffidavit filed in the High Court was not a
ground for refusing approval. In Thintmuntga Kirnpan and
Variyar Nadu and Ors. MANU/SC/0601/1996 :
{1996}2SCR422, which was a case relating to Medical
Education and which also related to the effect of a Central
Law upon a law made by the State under Entry 25 List III,
it was held that the "essentiality certificate cannot be
withheld by the State Government on any policy
consideration because the policy in the matter of
establishment of a new medical college now vests with
the Central Government alone". Therefore, the Sttae
could not have any "policy" outside the AICTE Act and
indeed it if had a policy, it should have placed the same
before the AICTE and that too before the latter granted
permission. Once that procedure Laid down in the AICTE
W.P (C) No.35843/2022
..6..
Act and regulations had been followed under Regulation
8(4), and the Central Task Force had also given its
favourable recommendations, there was no scope for any
further objection or approval by the State. We may
however add that if thereafter, any fresh facts came to
light after an approval was granted by the AICTE or if the
State felt that some conditions attached to the permission
and required by the AICTE to be complied with, were not
complied with, then the State Government could always
write to the AICTE, to enable the latter to take appropriate
action."
I am, therefore, of the firm view that, the stand of the
Government that they will not consider any application in the
private self financing sector cannot find my favour. However,
this does not mean that they have to always grant NOC on
every application, but that they must consider each application
on its own - on a case to case basis; and then take a decision
as to the response they intent to offer. They cannot refuse
such a response saying that there is a policy decision.
In the afore circumstances, I allow this writ petition and
set aside Ext.P3 and direct the competent Authority of the
Government to reconsider the petitioner's application dehors
Ext.P5 and adverting to the afore said precedents; thus
culminating in an appropriate response to be made by them to
the AICTE. This shall be done as expeditiously as is possible,
but not later than one month from the date of receipt of a copy
W.P (C) No.35843/2022
..7..
of this judgment.
Needless to say, in view of the afore directions, the
interim order granted by this Court on 15.11.2022 will continue
to be in force and the admissions will be regularised by the
AICTE subject to the afore course.
Sd/-
DEVAN RAMACHANDRAN,
JUDGE
ACR
W.P (C) No.35843/2022
..8..
APPENDIX OF WP(C) 35843/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPROVAL LETTER
BEARING NO. F. NO. SOUTH-WEST/1-
10973971733/2022/EOA/CORRIGENDUM-1
DATED 24.08.2022
Exhibit P2 TRUE COPY OF REQUEST LETTER DATED
13.04.2022 SUBMITTED BY THE COLLEGE
Exhibit P3 TRUE COPY OF THE REJECTION LETTER
DATED 22.09.2022 BEARING NO.
L1/1625/22/DTE(III) ISSUED BY
Exhibit P4 A TRUE COPY OF THE GOVERNMENT LETTER
NO. L2/100/2022HEDN DATED 07.05.2022
Exhibit P5 A TRUE COPY OF THE GOVERNMENT LETTER
NO. L2/112/2021HEDN DATED 03.09.2021
ISSUED BY RESPONDENT NO.1
Exhibit P6 A TRUE COPY OF THE PROSPECTUS
Exhibit P7 A TRUE COPY OF THE ANNEXURE I TO THE
PROSPECTUS
