All India Council for Technical Education v. DM Educational & Research Foundation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR.JUSTICE K.T.SANKARAN** **FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938** **WA. No.1622 of 2016 IN WP(C). No.22519/2016 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) NO.22519/2016 OF HIGH COURT OF KERALA DATED 08-08-2016.** ## **APPELLANT(S)/3RD RESPONDENT:** **---------------------------** **ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, 7TH FLOOR, CHADRALOK BUILDING, JANPATH NEW DELHI 110 001, REPRESENTED BY ITS DIRECTOR.** **BY ADV. SRI.S.KRISHNAMURTHY,SC, AICTE** **RESPONDENT(S)/PETITIONER & RESPONDENT NOS.1 AND 2: -----------------------------------------------** **1.DM EDUCATIONAL & RESEARCH FOUNDATION, (A CHARITABLE & EDUCATIONAL TRUST HAVING ITS REGD.OFFICE AT NASEERA NAGAR, MEPPADI P.O, WAYANAD DISTRICT KERALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY & LAW OFFICER MR.ZALAZIKALLANGODAN.** **2.UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI 110 001** **3.PHARMACY COUNCIL OF INDIA, COMBINED COUNCIL'S BUILDING, TEMPLE LANE, KOTLA ROAD, ALWAN-E-GAHLIB MARG, PB 7020,NEW DELHI-10002.** **R1,R2 BY ADV. SRI.N.NAGARESH, ASG R3 BY ADV.SRI.P.MARTIN JOSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **KRJ** ## **MOHAN M.SHANTANAGOUDAR, AG. CJ & K.T.SANKARAN, J** = = = = = = = = = = = = = = = = = = = = W.A. No.1622 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of August, 2016 ## **JUDGMENT** ## Mohan M.Shantanagoudar, Ag.CJ Being aggrieved by the judgment dated 8.8.2016 passed by the learned Single Judge in W.P(C) No.22519 of 2016 directing the All India Council for Technical Education (for short, the 'AICTE'), the appellant herein, to grant permission sought for by the writ petitioner (DM Educational & Research Foundation), for establishing a Pharmaceutical College in order to commence courses applied for during the current academic year itself, this appeal is preferred. 2. The records reveal that with a view to establish a Pharmaceutical College, the first respondent herein (writ petitioner) submitted its papers to the University as well as the AICTE for approval and affiliation. The AICTE, after conducting spot inspection, rejected the prayer of the first respondent for approval pointing out certain deficiencies. In the meanwhile, it seems that the concerned University granted affiliation to the first respondent institution for establishing the Pharmaceutical College. The first respondent questioned the refusal of approval by the AICTE in W.P(C) No.22519 WA.1622/16 ## **-:2:-** of 2016, which writ petition came to be allowed by the impugned judgment on 8.8.2016 with a specific direction to the AICTE to grant permission for establishing Pharmaceutical College to the first respondent immediately, so as to enable the first respondent to commence the courses during the current academic year itself. 3. The learned advocate appearing on behalf of the AICTE, taking us to the materials of record, submits that an inspection team of the AICTE visited the proposed premises where the Pharmaceutical College is to be located by the first respondent. The inspection team found certain deficiencies and hence, the first respondent was intimated by the AICTE to rectify all the deficiencies in order to get approval. To be more specific, the inspection was conducted by a team of AICTE on 30.3.2016. It is made clear in the report, which is produced as Ext.P5, that the institute has a temporary site made available in the medical college, on the same premises, at the time of Expert Visiting Committee (EVC) and that the land is mortgaged. The Standing Appeal Committee (SAC) by its report dated 15.4.2016 (Exts.P6 & P7) recommended for inspection by EVC once again. However, in the said report, the SAC noted that certain deficiencies are cured. Pursuant to the direction issued by the SAC, EVC visited the premises of the first respondent once again WA.1622/16 ## **-:3:-** and submitted a report on 22.4.2016 stating that the building is not constructed, though other deficiencies were cured. Ultimately, the final letter of rejection by AICTE was issued to the first respondent rejecting their prayer for granting approval to establish Pharmaceutical College, on 30.4.2016 evidenced by Ext.P8. While facts stood thus, the first respondent slept over the matter till 2.7.2016 on which date, the writ petition came to be filed before this Court challenging Ext.P8. During the course of hearing, the learned Single Judge appointed an Advocate Commissioner to visit the premises along with the team of inspection of AICTE to verify as to the fulfillment of deficiencies relating to infrastructural facilities. The Advocate Commissioner along with the inspection team of AICTE visited the premises on 5.8.2016 and gave the report on 8.8.2016 clarifying that the institution has complied with all the deficiencies relating to infrastructure. On the basis of the said report, the impugned judgment is passed on 8.8.2016 directing the AICTE to grant approval/permission as sought for by the first respondent for establishing the Pharmaceutical College. 4. The learned advocate for the appellant submits that the judgment passed by the learned Single Judge runs contrary to the dictum laid down by the Apex Court in the case of **Parshvanath** WA.1622/16 ## **-:4:-** **Charitable Trust and others** v. **All India Council for Technical Education and others** [(2013) 3 SCC 385] wherein, the Apex Court has prescribed the time schedule and that therefore, approval cannot be granted by the AICTE contrary to the dictum laid down therein. He further submits that merely because the institution has rectified the deficiencies subsequent to the cut off date prescribed by the Supreme Court, no leniency can be shown by the courts of law in the light of the judgment of the Supreme Court mentioned supra. 5. _Per contra_ , the learned Senior Advocate appearing on behalf of the institution which proposes to run the Pharmaceutical College submits that the fault lies on the AICTE in not granting approval at an early date i.e. prior to the cut off date in as much as the institution had complied with all the deficiencies pointed out by the inspection team of AICTE. Since the AICTE has committed wrong in not performing its duties as required under law within the reasonable period, it cannot take disadvantage of its own fault to oppose the writ petition seeking grant of approval. He relies on the judgment of the Apex Court in the case of **Kusheshwar Prasad Singh** v. **State of Bihar and Others** [(2007) 11 SCC 447] wherein the Apex Court has observed that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain WA.1622/16 ## **-:5:-** favourable interpretation of law; that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”. 6. There cannot be any dispute that the wrongdoer cannot take benefit of his own wrong. However, in the matter on hand, the facts are different. As mentioned supra, in the order of rejection Ext.P8 dated 30.4.2016, it is clearly mentioned that the deficiencies are not fully cured in as much as the building for running the Pharmaceutical College was not constructed by them. The facts on hand clearly reveal that all the defects were stated to have been cured only on 8.8.2016 i.e., the date on which the Advocate Commissioner visited the premises along with the inspection team of AICTE. Till such time, there is no record to show that the deficiencies pointed out by the AICTE were cured by the first respondent. Curiously, the learned Single Judge has passed the impugned judgment directing the AICTE to grant approval forthwith i.e. after 8.8.2016, based on such report filed by the Advocate Commissioner on 8.8.2016. Such order is impermissible in law in as much as the same directly contradicts the order passed by the Apex Court in the case of _**Parshvanath Charitable Trust**_ (cited supra). WA.1622/16 ## **-:6:-** The Apex Court has provided the time schedule which needs to be followed in letter and spirit by the AICTE. The time schedule prescribed by the Apex Court reads thus: |Event|Schedule| |---|---| |Conduct of Entrance Examination<br>(AIEEE/State CET/Mgt. Quota exams etc.|In the month of May| |Declaration of Result of Qualifying<br>Examination (12thExam or similar) and<br>Entrance Examination|On or before 5thJune| |1stround of counselling/admission for<br>allotment of seats|To be completed on or before 30th<br>June| |2ndround of counselling for allotment of<br>seats|To be completed on or before 10th<br>July| |Last round of counselling for allotment of<br>seats|To be completed on or before 20th<br>July| |Last date for admitting candidates in seats<br>other than allotted above|30thJuly<br>However, any number of rounds for<br>counselling could be conducted<br>depending on local requirements,<br>but all the rounds shall be<br>completed before 30thJuly.| |Commencement of academic session|1stAugust| |Last date up to which students can be<br>admitted against vacancies arising due to<br>any reason (no student should be admitted<br>in any institution after the last date under<br>any quota)|15thAugust| |Last date of granting or refusing approval<br>by AICTE|30thApril<br>(amended as per order in SLP(C)<br>No.7277 of 2014)| |Last date of granting or refusing approval<br>by University/State Government|10thJune<br>(amended as per order in I.A No.92/2016<br>in Civil Appeal No.9048/2012)| WA.1622/16 ## **-:7:-** 7. From the aforementioned time schedule, it is clear that the first round of counselling/admission for allotment of seats needs to be completed on or before 30[th] of June every year, the second round of counselling for allotment of seats shall be completed on or before 10[th] of July, the last round of counselling for allotment of seats shall be completed on or before 20[th] of July, the last date for admitting the students in seats other than allotted on merit is on 30[th] of July, the commencement of academic session will be on 1[st] August, the last date upto which students can be admitted against vacancies arising due to any reason is on 15[th] of August and the last date prescribed by the Apex Court for granting or refusing approval is on 30[th] of April. From the above, it is clear that the AICTE cannot grant approval after 30[th] of April of any academic year. The last date for admitting the students against any vacancies arising for any reason is 15[th] of August every year. The courses will commence from 1[st] September every year. 8. Since the date prescribed for commencement of academic session was 1[st] August, the learned Single Judge ought not have directed the AICTE to grant approval for running the Pharmaceutical College. In the matter on hand, as mentioned supra, the prayer of the first respondent for granting approval is rejected by the AICTE WA.1622/16 **-:8:-** only on 30[th] April, which complies with the time schedule prescribed by the Supreme Court. Though the Apex Court has ordered that the last date for granting approval by the University is 10[th] June, the Kerala University of Health Sciences has granted affiliation to the college only on 12.8.2016. In view of the same, it is clear that the affiliation granted by the University is also not in accordance with law. 9. It is relevant to note the observations of the Apex Court made in paragraph 43 in the case of _**Parshvanath Charitable Trust**_ (cited supra), which read thus: “We find that the above Schedule is in conformity with the affiliation/recognition schedule above-noticed. They both can co-exist. Thus, we approve these admission dates and declare it to be the law which shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. Certainty in this field is bound to serve the ends of fair, transparent and judicious method of grant of admission and commencement of the technical courses.” 10. Thus, it is clear from the aforementioned observations that the admission dates prescribed by the Supreme Court need to be treated as law and hence, they shall have to be strictly adhered to WA.1622/16 ## **-:9:-** by all the concerned and none of the authorities shall have the power or jurisdiction to vary those dates of admission. It is relevant to note the following observations made by the Apex Court in the said judgment, which read thus: “If the appellate authority decides the matter prior to 30[th] April of the year concerned and grants approval to a college, then alone such institution will be permitted to be included in the list of colleges to which admissions were to be made and not otherwise. In other words, even if the appellant authority grants approval after 30[th] April, it will not be operative for the current academic year. All colleges which have been granted approval/ affiliation by 10[th] or 30[th] April, as the case may be, shall alone be included in the brochure/ advertisement/website for the purpose of admission and none thereafter.” From the aforementioned observations, it is clear that all colleges, which have been granted approval or affiliation by 30[th] April, 2016, shall only, be included in the brochure/advertisement/ website for the purpose of admission and none thereafter. 11. In view of the clear dictum laid down by the Apex Court in _**Parshvanath Charitable Trust**_ (cited supra), the judgment of the learned Single Judge is liable to be set aside. 12. It is further submitted by the learned Senior Advocate WA.1622/16 **-:10:-** appearing for the first respondent that pursuant to the final affiliation granted by the University, already 50 students are admitted to the college. Even assuming that the college has admitted 50 students based on the affiliation of the University, this Court cannot come to the aid of those students, who were illegally admitted by the institution without the approval of the AICTE. Accordingly, this appeal is allowed and the judgment of the learned Single Judge in W.P(C) No.22519 of 2016 is set aside. Sd/Mohan M. Shantanagoudar Acting Chief Justice Sd/K.T.Sankaran, Judge krj.20/8/16 //true copy// P.A to judge