Disposed

Pattayil Kunjukunju Memorial Charitable Trust v. State of Kerala

Kerala HC6 Oct 2021WP(C)/17341/2021

Case brief

AI extract

What is this about?

Approval for new diploma courses in an existing engineering college was refused on State policy and infrastructure grounds. The court set aside the policy-based orders and directed fresh DTE consideration after inspection and hearing the institution and University, while upholding the University's role in safeguarding existing courses.

What did the court decide?

Exts.P5 and P7 set aside; DTE directed to inspect and reconsider approval after hearing the institution and University, within four weeks of receipt of the University's report.

Pattayil Kunjukunju Memorial Charitable Trust Vs… — Education and Admissions | Kerala HC (2021)

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WP(C) NO. 17341 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 6^TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943

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WP(C) NO. 17341 OF 2021

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PETITIONER:

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PATTAYIL KUNJUKUNJU MEMORIAL CHARITABLE TRUST AMBADIYIL SHOPPING COMPLEX, REVENUE TOWER ROAD, ADOOR, PATHANAMTHITTA-691 523, REP.BY ITS MANAGING DIRECTOR, ABYIN A.S.

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BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE SUZANNE KURIAN CIMIL CHERIAN KOTTALIL

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RESPONDENTS:

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1 STATE OF KERALA REP.BY THE SECRETARY, TECHNICAL EDUCATION DEPARTMENT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.

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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.

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SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - AICTE ELVIN PETER P.J.

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SRI KB RAMANAND, SPL GP TO ADDL AG

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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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.

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The facts which are required to be noticed for deciding this petition are as under:

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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

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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.

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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

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Act and as the NOC sought for cannot be denied by way of a policy decision.

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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

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seeking the following reliefs:

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i. Issue an appropriate writ, order or direction calling for the records leading to Ext.P5 & P7 and to quash the same.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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

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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.

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I have considered the submissions advanced.

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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.

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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.

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“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

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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.

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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.

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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:

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"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

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application shall be taken on receipt of the report of the Commission.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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."

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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

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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.

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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.

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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.

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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

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allowed to be established. Such policy restricting future discretion is not reasonable, in any manner. (emphasis supplied)

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17. After holding that the fundamental rights of parties to receive

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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.

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18. In State of Kerala v KMCT Polytechnic College Mampara

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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

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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.

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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.

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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

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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.

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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.

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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

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University cannot claim that they have anything to do with the grant of approval for Diploma courses.

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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 selffinancing institutions. This Court has already held that the said policy of the State cannot be sustained under law.

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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.

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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

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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.

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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

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In APJ Abdul Kalam Technological University and another

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v. Jai Bharat College of Management and Engineering Technology and

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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.

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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

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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.

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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

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WP(C) NO. 17341 OF 2021

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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.

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Having considered the entire facts and circumstances, I dispose of this Writ Petition by issuing the following directions.

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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.

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c) If the DTE is satisfied that the petitioner is having the

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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.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 17341 OF 2021

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APPENDIX OF WP(C) 17341/2021

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PETITIONER'S EXHIBITS:

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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

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WP(C) NO. 17341 OF 2021

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11.9.2020 IN W.P.(C) NO.18264/2020 ON THE FILES OF THIS HON'BLE COURT.

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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.

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RESPONDENTS' EXHIBITS:

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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

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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.

Pattayil Kunjukunju Memorial Charitable Trust v. State of Kerala

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Pattayil Kunjukunju Memorial Charitable Trust v. State of Kerala

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