I.L.M. Trust Techno Village, Perumbavoor v. State of Kerala, Commissioner for Entrance Examinations, Admission Supervisory Committee for Professional Colleges in Kerala, and AICTE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938 ## WP(C).No. 29759 of 2016 (T) ## PETITIONER: I.L.M.TRUST TECHNO VILLAGE, METHALA, KEEZHILLAM P.O. PERUMBAVOOR - 683 541, REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.T.R.SADEESAN ## RESPONDENT(S): 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTAHPURAM - 695 001. 2. THE COMMISSIONER FOR ENTRANCE EXAMINATION 5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001 . 3. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C. 15/1553-4, PRASANTHI BUILDING, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY ITS SECRETARY. ## **ADDL.R4 IMPLEADED:** ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE), 7TH FLOOR, CHANDRALOK BUILDING, GANAPATH, NEW DELHI-110 001, REPRESENTED BY ITS DIRECTOR. (ADDL. R4 IMPLEADED AS PER ORDER DATED 09.09.2016 IN I.A. NO. 14571/2016) R BY GOVERNMENT PLEADER R BY SRI.S.KRISHNAMURTHY,SC, AICTE R BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-09-2016, ALONG WITH WPC. 29760 & 29834 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29759 of 2016 (T) --------------------------------- : 2 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: ----------------------------- EXHIBIT P1 COPY O/F/ THE GOVERNMENT ORDER VIDE NO.GO(MS) NO.240/12/H.EDN DATED 28/6/2012 - EXHIBIT P2 COPY OF THE EXTENSION OF APPROVAL GRANTED BY THE AICTE FOR THE ACADEMIC YEAR 2016-17 DATED 25/4/2016 - EXHIBIT P3 COPY OF THE EXTENSION OF AFFILIATION OF TECHNICAL INSTITUTIONS FOR THE ACADEMIC YEAR 2016-17 WITH THE TECHNOLOGICAL UNIVERSITY DATED 14/5/2016 - EXHIBIT P4 COPY OF THE GOVERNMENT ORDER GO(MS) NO.618/2015/H.EDN DATED 16/10/2015 - EXHIBIT P5 COPY OF THE ORDER VIDE NO.ASC100/15/ENGG/ILM DATED 1/12/2015 OF THE 3RD RESPONDENT - EXHIBIT P6 COPY OF THE GOVERNMENT ORDER GO(MS) NO.152/2016/H.EDN DATED 27/6/2016 - EXHIBIT P7 COPY OF THE GOVERNMENT ORDER GO(MS) NO.155/2016/H.EDN DATED 30.06/2016 - EXHIBIT P8 COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION TO ALL KERALA PRIVATE SELF FINANCING AND GOVERNMENT SPONSORED ENGINEERING COLLEGES FOR THE YEAR 2016-17 - EXHIBIT P9 COPY OF THE REQUEST DATED 26/8/2016 SUBMITTED BY THE PETITIONER TRUST BEFORE THE 2ND RESPONDENT - EXHIBIT P10 COPY OF THE REQUEST DATED 25/7/2016 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF EDUCATION - EXHIBIT P11 COPY OF THE REQUEST SUBMITTED BY THE PARENTS OF THE STUDENTS BEFORE THE MINISTER OF EDUCATION ON JULY 2016 - EXHIBIT P12 COPY OF THE RELEVANT OF EXTRACT OF THE BROCHURE OF KARNATAKA EXAMS AUTHORITY ## RESPONDENT(S)' EXHIBITS: NIL ------------------------------ /True Copy/ P.A to Judge. rv ## P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ. ------------------------------------------W.P.(C). Nos. 29759, 29760 & 29834 of 2016 -----------------------------------------Dated this the 28[th] day of September, 2016. ## JUDGMENT ## P.R. Ramachandra Menon,J. Can the Institutions running Engineering Colleges in the State be permitted to admit candidates, without being qualified in the common entrance test, once the list prepared by the Commissioner for Entrance Examinations is exhausted, by admitting persons available from other sources, i.e., the candidates, who are qualified in the qualifying examination ie., plus two level, is the question to be considered in these writ petitions. 2. The petitioners herein are different Trusts/Institutions, who are running Engineering Colleges, as Self- Financing Institutions. The admission in the filed is governed by various verdicts passed by the Supreme Court and also this Court at different points of time. A separate enactment has already been framed by the State as Act 19 of 2006 constituting the 'Admission Supervisory Committee' and 'Fee Regulatory Committee', prescribing wide powers to maintain clarity and transparency in the field of admission, giving paramount importance to 'merit' and to ensure that there is no exploitation, thus satisfying the 'triple tests' W.P.(C.) No. 29759/2016 & batch -2- enunciated by the Supreme Court in Islamic Academy of Education v. State of Karnataka[1] and reiterated in other judgments as well. The factual position has to be examined in the above background. 3. There is no dispute with regard to the fact that the petitioners/ Institutions are in dearth of sufficient candidates to be admitted, filling up all the vacancies available in different disciplines. The contention is that, since sufficient candidates are not allotted by the Commissioner of Entrance Examinations in the 50% 'merit quota' and such other segments, seats are still remaining vacant, which has resulted in serious financial break down in running the Institution effectively, providing necessary infrastructure and better course studies to the students concerned. It is to meet the equilibrium in the said context, that the petitioners have approached this Court seeking for a direction to enable them to fill up the vacant posts, after exhausting the list prepared by the Commissioner for Entrance Examinations, by accommodating candidates, who have qualified the 'plus two' level, in terms of the norms prescribed by the University. Such an attempt by the State was permitted for the last year, based on Ext.P5 order of the Admission Supervisory Committee. But coming to this year, the said procedure (to have the vacancies filled up from prenormalization list) has been taken away by the Government as per Ext.P6 Government Order dated 27.06.2016. This made the petitioners to feel > 1 (2003) 6 SCC 697 W.P.(C.) No. 29759/2016 & batch -3- aggrieved, and hence the challenge. 4. Heard the learned Senior Counsel appearing on behalf of the petitioners, the learned Senior Government Pleader for the State, the learned Standing Counsel appearing for the Committee and also the learned Standing Counsel appearing for the AICTE (who himself happens to be the Standing Counsel for the concerned Technical University, though the University is not brought in the party array, despite the order passed by this Court on 09.09.2016) 5. The question raised in this writ petitions had actually come up for consideration before another Bench of this Court in W.P.(C) No. 23829 of 2016, where the challenge was in respect of the very same Government Order. Pendency of the said matter was referred to in these writ petitions as well. When the matters came up for consideration on the last occasion, it was submitted by the learned Standing Counsel for the Committee that the matter was finally heard and decided on 09.09.2016, whereby all the contentions raised by the petitioner therein i.e., Kerala Self Financing Engineering College Managements' Association, were rejected, holding that there was absolutely no merit in the writ petition. But the learned counsel appearing for the petitioners sought to draw a distinction as to some vital points stated as omitted to be considered, particularly with reference to paragraph 137 of the judgment rendered by the Supreme Court in P.A. W.P.(C.) No. 29759/2016 & batch -4- Inamdar v. State of Maharashtra[2] and hence the learned Senior Counsel addressed the Court in this regard and we heard the matters accordingly. 6. The learned Senior Counsel for the petitioners submits that, keeping the seats vacant in Professional Colleges will not help anybody, and that it will only adversely affect the very existence of the Institution for various reasons. This will affect the students who are pursuing the studies in the Institution, as the Institution will not be in a position to meet the situation because of inadequacy of funds. This is more so, since, there is no other financial source to run the situation, as no grant is obtained, nor is there any other assistance from the part of the Government or other Funding Agencies and the same has to be followed by the Institution itself. The reliance sought to be placed in paragraph 137 of the judgment of the Supreme Court in Inamdar's case made us to hear the matter afresh and at length, despite the fact that the issue stands already covered against the persons like the petitioners. 7. Paragraph 137 of the above verdict of the Supreme Court reads as follows: “Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to nonminority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of > 2 2005 (6) SCC 537 W.P.(C.) No. 29759/2016 & batch -5- being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.” 8. The learned Senior Counsel submits that three different circumstances are possible as termed by the Supreme Court in the said paragraph. There may be a single Institution imparting a particular type of education, which is not being imparted by any other institution. It is also possible that there may be a group/conglomeration of institutions imparting similar courses to be grouped together and to be considered on the feasibility of conducting a Common Entrance Test by the aforesaid Institutions or whether the particular institution was justified to some extent for the purpose of admission as flowing from the observation made by the Supreme Court in paragraph 137 of the aforesaid verdict. This being the position, the Entrance Test conducted by the Commissioner for Entrance Examination by itself cannot be the basis to govern the field of admission, and once the list prepared by the Commissioner for Entrance Examinations is exhausted, there is nothing wrong in permitting the Institution to fill up the vacancies based on the merit of the candidates, who have passed the qualifying examination of plus two level, subject to W.P.(C.) No. 29759/2016 & batch -6- the norms prescribed by the University. To this extent, the matters are to be considered, submits the learned Senior Counsel. 9. We are not much impressed on the said submission for various reasons. Firstly, it is to be noted that the vacancies are resulted, because of the non-supply of/absence of demand/for want of takers for the particular courses. The number of Institutions imparting courses in different disciplines and the availability of seats may be more with reference to the number of qualified candidates, who can afford to pursue such studies satisfying the fees prescribed in this regard. At the same time, it is to be noted that there is nothing wrong on the part of the authorities concerned in prescribing minimum level of merit for securing admission in the Professional Colleges, especially the fields like 'Engineering' or 'Medicine' and such other courses. Mere passing of a qualifying examination may not be sufficient to have the minimum output from the students concerned qualifying in the professional courses. The nicety in this regard need not be explained further by this Court, as this Court is not called upon to decide the reason for fixing the minimum level of qualifying marks in the concerned examinations. Conducting of Common Entrance Test was specified as a method for maintaining transparency by the Apex Court in Inamdar's case. There is no dispute with regard to the paramount importance of 'merit' and this was asserted on many an W.P.(C.) No. 29759/2016 & batch -7- occasion by the Apex Court, holding that the 'Triple tests' have to be satisfied as mentioned herein before. It was in this context, that the conducting of the Common Entrance Examination was stipulated as a tool to identify the eligible candidates. 10. The Apex Court, in paragraph '137' of the said decision, referred a particular Institution who might be or could be permitted to conduct examination of its own. It is to be noted that such circumstances will be available only if such Institution is imparting a particular type of education, which is not being imparted by any other Institution. If other Institutions are also imparting similar courses, they have to be clubbed together to form a group, to be permitted to conduct the examinations. The Engineering Course, which is being conducted by the petitioners herein, being a common one or similar one, the petitioners cannot but form a group; who have gone for the result of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations. There is no dispute in this regard. 11. Yet another circumstance when the seats may be lying vacant is that, the course being conducted by the Institution may not be of that much demand, so as to enable the students concerned to win a job immediately after completion of the course. It is also possible that the infrastructure provided by the Institution may not be requisite enough to impart learning W.P.(C.) No. 29759/2016 & batch -8- as desired by the students, who are aspirants for the admission. The fees structure of the Institution may also be higher, though within the permissible limit. Another circumstance is that, adequate number of students may not be there, who can afford to the financial burden to undergo such course as available in the Institution. Still another circumstance may be there, whereby the faculty, who are teaching the students may not have the requisite calibre and credentials to maintain higher standards in terms of the qualification prescribed by the AICTE or the University to attract the students, thus creating the demand/supply ratio to an appropriate extent. In other words, the comparative study may only show a 'lower graph' in respect of the Institution concerned, which may result in vacant seats. It is also possible that several Institutions may be desirous of starting various courses in professional field and there is chance for the State/such other authorities concerned, including AICTE or the University to grant clearance/NOC, merely subject to satisfaction of the minimum requirements. If the number of Institutions are much more than the demand, it will naturally result in the seats remaining vacant without any takers/aspirants. Mushrooming of such Institutions without providing the best infrastructure and best faculty may affect the survival of the Institution itself. This Court does not find anything further to be dealt with in this regard, as it was for the Institution to plan appropriate course, at W.P.(C.) No. 29759/2016 & batch -9- appropriate level, to the appropriate extent, providing necessary ways and means to attract the students. This being the position, merely for the reason that the seats are lying vacant in an Institution, it is not at all a ground to extend any relief to the persons like the petitioners herein. 12. As mentioned already, this question was dealt with in detail by another Bench of this Court and the relief sought for was declined as per judgment dated 09.09.2016 in W.P.(C) No. 23829 of 2016. It is very relevant to note that the said writ petition was filed by none other than the Association of the Institutions, who represented the petitioners as well. Since the petitioners are admittedly members of the said Management Association, it is not open for the petitioners to turn up again, by filing another writ petition on their individual status, to contend something more. The principles of the 'res judicata' are attracted to the case in hand and the writ petitions are to fail, on this ground as well. 13. The learned Standing Counsel appearing for the AICTE submits that the rules/norms prescribed by the AICTE specifically stipulate that the candidates concerned are required to qualify the 'Entrance Examination' conducted by the competent authority. The sanctity for conducting such a test, to have the proper evaluation of the merit and competence of the students concerned taking the marks of the qualifying examination/'plus two level' and the level attained in the Entrance Examination, thus leading W.P.(C.) No. 29759/2016 & batch -10- to a 'Normalization Procedure' have been dealt with in detail by the Bench while rendering the above judgment. We are in full agreement with the finding and the reasoning therein. We find no reason to take any deviation. There is absolutely no merit in these writ petitions. Interference is declined and all these writ petitions are dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. DAMA SESHADRI NAIDU, JUDGE. _Rv_