Holy Grace Academy of Engineering v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938** **WP(C).No. 20871 of 2016 (H) ---------------------------PETITIONER(S):** **-------------** **HOLY GRACE ACADEMY OF ENGINEERING P.O.KURUVILASSERY, MALA, THRISSUR DISTRICT, REPRESENTED BY ITS CHAIRMAN SANY EDATTUKARAN.** **BY ADVS.SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF SRI.P.E.SAJAL** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA** **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF TECHNICAL EDUCATION OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM - 695 001.** **3. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY CET CAMPUS, THIRUVANANTHAPURAM-695 016, REPRESENTED BY ITS REGISTRAR.** **4. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REPRESENTED BY ITS REGIONAL DIRECTOR, OFFICE OF THE AICTE, CET CAMPUS, THIRUVANANTHAPURAM-695 001.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER** **SMT. SHERIN C.A. R3 & R4 BY ADV. SRI.S.KRISHNAMOORTHY, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 20871 of 2016 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **P1: COPY OF THE APPROVAL GRANTED BY THE AICTE GRANTING APPROVAL FOR COMMENCING 4 DEGREE COURSES IN ENGINEERING DTD.20.8.2010.** - **P2: COPY OF THE APPROVAL GRANTED BY THE UNIVERSITY OF CALICUT.** - **P3: COPY OF THE SANCTION ORDER DTD.26.4.2016.** - **P4: COPY OF THE NO OBJECTION CERTIFICATE DTD.2.3.2016.** - **P5: COPY OF THE NOC DTD.18.5.2016.** **P6: COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION.** - **P7: COPY OF THE AFFIDAVIT DTD.20.5.2016 AGREEING FOR SEAT SHARING AGREEMENT AND THE FEE.** - **P8: COPY OF THE APPLICATION.** - **P9: COPY OF THE ANNEXURE TO THE PROSPECTUS DETAILING THE COLLEGES CONTAINED IN ANNEXURE II(1)(A).** - **P10: COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS.** **RESPONDENT(S)' EXHIBITS :** - **-----------------------** - **EXT.R3(A): COPY OF THE AFFILIATION GRANTED FOR THE OTHER COURSES BY THE R3 UNIVERSITY AT 14/5/2016.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.20871 of 2016 - H** ## **====================== Dated this the 05[th] day of July, 2016** ## **J U D G M E N T** The petitioner is aggrieved with the affiliation denied to a new course in Mechanical Engineering, applied for by the petitioner and approved by the All India Council for Technical Education (A.I.C.T.E) at Ext.P3. 2. The petitioner had been continuing four under graduate courses in Engineering being, (i) Civil Engineering, (ii) Electrical and Electronics Engineering, (iii) Electronics and Communication Engineering and (iv) Computer Science from the academic year 2010-11 onward. As per the norms, the petitioner has to obtain a No Objection Certificate (NOC) from the Government, an approval by the A.I.C.T.E and also affiliation of the University in each of the academic years. **2** W.P.(C) No.20871 of 2016 - H 3. The procedure as explained by the learned Standing Counsel for the respondent University is that a consent has to be obtained from the State Government for starting a new course or for fresh affiliation, in the form of a NOC, and the same has to be forwarded to the A.I.C.T.E., along with the application for approval. The A.I.C.T.E after getting the opinion of the Government and if no opinion is received after two months, then also; would consider the grant of approval. On approval being received from the A.I.C.T.E, the institution has to apply for an affiliation from the University with sanction of the Government. 4. The petitioner had been continuing the under graduate courses in the petitioner's institution and had also applied for fresh approval of an additional under graduate course in Mechanical Engineering before the A.I.C.T.E. Obviously consent was received from the Government for such approval since Ext.P3 indicates that the A.I.C.T.E after **3** W.P.(C) No.20871 of 2016 - H considering the petitioner's request for extension of approval with respect to four under graduate courses and fresh affiliation for the Mechanical Engineering course; approved all the five courses, by Ext.P3 dated 26.04.2016. The petitioner was granted a NOC for affiliation of the said course by the University as per Ext.P5. Even prior to the same, the Government had been communicated the request for approval of the fresh course by the A.I.C.T.E as is indicated at Ext.P6. The petitioner applied for the affiliation as per Ext.P8 notification. 5. Admittedly, the petitioner had submitted an application on 15.04.2016 when the extension of approval or the grant of fresh approval for the fresh course was not received from the A.I.C.T.E. The affiliation for the four under graduate courses could also have been granted only on the approval being extended by A.I.C.T.E, for the current academic year, which was also granted by Ext.P3. Ext.P3; in addition to the petitioner being informed, has been communicated to the **4** W.P.(C) No.20871 of 2016 - H Government as also the Registrar of the University. The contention raised by the University is that the affiliation for the four under graduate courses, were proceeded with and granted as per Ext.R3(a) on 14.05.2016. However, the petitioner failed to produce the sanction of the government and it was in such circumstance the University refuse to consider affiliation of the new undergraduate course. The petitioner having not challenged it before 30.05.2014, a further affiliation made; would go against the prescriptions made by the Hon'ble Supreme Court with respect to approvals, affiliations, admissions etc:. The decision in **Parshvanth Charitable Trust v. All India Council for Technical Education [(2013) 3 SCC 385]** would stand against the petitioner, insofar as the Hon'ble Supreme Court having provided for strict adherence to the cut of date prescribed thereunder. Admittedly, the cut of date for grant of affiliation was 30[th] May; here of 2016. **5** W.P.(C) No.20871 of 2016 - H 6. The petitioner as is seen from the documents produced herein had obtained approval of the A.I.C.T.E for a fresh under graduate course as per Ext.P3. What prevented the University from considering the affiliation for the new under graduate course was only the fact that the Government did not issue a sanction. The Government's objections were called for by the A.I.C.T.E itself as is indicated at Ext.P6. The Government has not objected to the approval of a fresh under graduate course before the A.I.C.T.E. The application before the A.I.C.T.E for approval was also filed with the consent of the Government. Presumably, the sanction was not obtained only since there was a general election to the Legislative Assembly of the State and there was a change in Government. The learned Government Pleader would also submit that steps have been taken to consider the sanction for grant of affiliation. **6** W.P.(C) No.20871 of 2016 - H 7. In such circumstance, it was not due to the petitioner's fault that a sanction was not obtained. True, the petitioner could have approached this Court prior to 30.05.2016. The explanation of the learned Counsel appearing for the petitioner; is that the petitioner was under the impression that sanction could be obtained from the Government only after executing the agreement with the Government; conceding 50% of seats to merit, to be filled from the list prepared at the Common Entrance Examination, conducted by the State. The said agreement, as is evidenced from Ext.P7, was executed only on 20.05.2016. In the circumstances noticed above, this Court is of the opinion that there is no reason why the petitioner should be denied affiliation of the Mechanical Engineering course as of now; only for the reason that the cut of date has been crossed since continued affiliation for the existing four undergraduate courses has been granted prior to the cut-off date and what would be **7** W.P.(C) No.20871 of 2016 - H required is only an affiliation to the new course; related back the date of the other grant. 8. In the present case, it is to be noticed that already an affiliation was granted as per Ext.R3(a) with respect to the four existing under graduate courses, for which also continued approval was granted by the A.I.C.T.E as per Ext.P3 dated 26.04.2016, after the application was made by the petitioner. The continued affiliation for the existing 4 courses also could have been taken up by the University, only after approval by the AICTE was obtained. Obviously the University proceeded on the basis of exhibit P3 itself, to grant approval to the four existing courses. In such circumstance there is no discernible reason as to why the University did not consider the affiliation for the Mechanical Engineering course, which was approved as a fresh course for the coming academic year. In that context, what would be required is only issuance of a corrigendum, by the University insofar as granting affiliation to **8** W.P.(C) No.20871 of 2016 - H the fifth under graduate course also, which was provided for the first time for the academic year 2016-17. In such circumstance, the affiliation would relate back to 14.05.2016 and there would be no violation of the date prescribed by the Hon'ble Supreme Court. The same shall be done at any rate, on or before 10.07.2016 and the petitioner shall be permitted to participate in the second allotment for the additional undergraduate course in Mechanical Engineering. The petitioner shall make application before the appropriate authority for inclusion, in the 2[nd] allotment after getting affiliation from the University. The writ petition would stand allowed. No costs. **Sd/K. VINOD CHANDRAN, JUDGE** // true copy // SB/05/07/2016 P.A to Judge