Indira Charitable Trust v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** ## **WP(C).No.18264 OF 2020(G)** ## **PETITIONER:** **INDIRA CHARITABLE TRUST,** **REPRESENTED BY ITS MANAGING TRUSTEE, RAJADHANI COMPLEX, EAST FORT, TRIVANDRUM-695023. BY ADVS.** **SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SHRI.SIVASHANKAR PANICKER** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, TECHNICAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** **2 THE DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASOM STREET, FORT.P.O., TRIVANDRUM-695023. 3 STATE BOARD OF TECHNICAL EDUCATION, REPRESENTED BY THE MEMBER SECRETARY, THE DIRECTORATE OF TECHNICAL EDUCATION, TRIVANDRUM-695001. 4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI-110070.** **R1-3 BY GOVERNMENT PLEADER** **R4 BY ADV. SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - AICTE SRI KURIAN GEORGE KANNANTHANAM (SR)FOR PETITIONER ; SRI SUNIL NATH -GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 18264 of 2020 ## **JUDGMENT** The petitioner, which is an educational agency, which runs an Engineering College, namely, Rajadhani Institute of Engineering and Technology in Thiruvananthapuram, in SelfFinancing Sector, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 21.03.2020 of the 2[nd] respondent the Director of Educational Education, who is the Member Secretary of the 3[rd] respondent State Board of Technical Education, whereby the application made by the petitioner for grant of provisional affiliation for the Diploma programme in Automobile Engineering, on the strength of Ext.P2 approval granted by the All India Council for Technical Education (AICTE), with an annual intake of 60, stands rejected on the ground that Automotive Engineering course is not conducted in the petitioner's institution at UG level. Therefore, the request for affiliation of the Diploma programme in Automotive Engineering as an additional level cannot be considered. 2. In Ext.P3 order the 2[nd] respondent has referred to -3- W.P.(C). No. 18264 of 2020 Clause 2.9.1 of the Admission Process Handbook 2020-21 of the AICTE. The petitioner obtained Ext.P6 clarification from AICTE, in which it is stated that, an institute is eligible to apply for an additional level - Diploma – provided the institute is already offering the same program in the UG level or viceversa. Thereafter, the petitioner moved this Court in this writ petition, seeking a writ of certiorari to quash Ext.P3 order insofar as it has declined approval for the Diploma programme in Automobile Engineering; and a writ of mandamus commanding respondents 2 and 3 to grant approval/affiliation to Diploma in Automobile Engineering in the petitioner's college, so as to enable it to effect admissions for the academic year 2020-21. 3. On 07.09.2020, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions from respondents 2 and 3 and the learned Standing Counsel for AICTE sought time to get instruction from the 4[th] respondent. 4. The written instructions received from the 2[nd] -4- W.P.(C). No. 18264 of 2020 respondent is placed on record along with a memo filed by the learned Special Government Pleader dated 11.09.2020, in which the provisions under the Rules and Regulations for the Conduct of Diploma Programmes in Engineering/Technology/ Commercial Practice/Management in the Polytechnic Colleges recognised by the State Board of Technical Education, Kerala (Revision-2015) is relied on. As per Clause 1.3 'course' means the study of an individual subject in a particular semester (traditionally referred to as a subject/paper) which shall include, theory, practical, fieldwork, project work, etc. As per Clause 1.10, 'programme' means the entire course of study and examinations (traditionally referred to as course) prescribed for the same leading to the award of Diploma. Relying on Clause 1.10 and 1.3 of the State Regulations, and also Clause 2.9.1 of AICTE Approval Process Hand Book 202021, the 3[rd] respondent took a decision not to grant affiliation to the Automobile Engineering Diploma in the petitioner's college, as there is no such programme in UG level. 5. Heard the learned Senior Counsel for the petitioner, W.P.(C). No. 18264 of 2020 -5- the learned Special Government Pleader for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent AICTE. 6. Clause 2.9 of the All India Council for Technical Education Approval Process Handbook - 2020-21 deals with starting of new programme/level in the existing institutions. Clause 2.9.1 deals with requirements and eligibility. Subclause (a) of Clause 2.9.1 reads thus: “a. The existing Institutions seeking approval to start new Programme/Level shall apply on AICTE Web-Portal along with the Extension of Approval for the existing Progamme(s) and Course(s) with the additional documents as per Appendix 17 of the Approval Process Handbook. However, the Institutions shall be permitted to apply for the same only after one batch of students pass out. New Course(s) in under Graduate Degree in Engineering and Technology shall be permissible in EMERGING AREAS ONLY. Existing Institutions shall be permitted to start Degree/ Diploma Level in Engineering and Technology/Pharmacy Programme, ONLY if the Institution is already conducting Diploma/Degree Level in the same.” 7. Clause 2.21 of the All India Council for Technical -6- W.P.(C). No. 18264 of 2020 Education (Grant of Approval for Technical Institutions) Regulations 2020, defines the term 'course' to mean one of the branches of learning in a Programme such as Civil Engineering, Mechanical Engineering, etc. Clause 2.34 defines the term 'level', to mean Diploma, Post Diploma Certificate, Under Graduate Degree, Post Graduate Diploma and Post Graduate Degree Programmes. Clause 2.40 defines the term 'programme' to mean the field of Technical Education, i.e., Engineering and Technology, Pharmacy, Architecture and Planning, Applied Arts, Crafts and Design, Hotel Management and Catering Technology, MCA, Management (PGCM/PGDM/MBA) and such other Programmes/ areas as notified by AICTE Act, 1987. 8. A combined reading of clauses 2.21, 2.34 and 2.40 of the AICTE Regulations, 2020 and also the provisions in Clause 2.9.1 of the AICTE Approval Process Handbook 202021 would make it explicitly clear that an existing Technical Institution can be permitted to start Diploma level in Engineering and Technology programme, if that institution is -7- W.P.(C). No. 18264 of 2020 already offering Engineering and Technology programme in Degree level. 9. In **Jai Bharath College of Management and Engineering Technology v. State of Kerala and others [Judgment dated 08.09.2020 in W.A.No.1073 of 2020 and connected cases]** a Division Bench of this Court held that in the light of the All India Council for Technical Education Act, 1987, All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations 2020, and the Approval Process Hand Book issued by the AICTE for the period 2020-21, the AICTE was entitled to take a decision in the matter of grant of approval, since it is vested with ample powers under law to do so. The AICTE Act, the AICTE Regulations, 2020 and the Approval Process Hand Book constituted in accordance with the powers conferred under the Regulations are, in all respects, a code by itself for conduct of its to undertake its activities, and they are also superior to the laws of the University in question as is held by the Apex Court. Moreover, Articles 245 and 246 of the Constitution of -8- W.P.(C). No. 18264 of 2020 India, in unequivocal terms, specify that when there is a conflict by and between any legislation of the Union and the State, the laws made by the Union in its absolute domain would be superior in all respects and the State has no power to interfere with the jurisdiction so exercised by the Union. 10. In view of the law laid down by the Division Bench of this Court, I find absolutely no merit in the contention raised by the learned Special Government Pleader, placing reliance on the Rules and Regulations framed by the 3[rd] respondent State Board of Technical Education. In view of the approval granted by AICTE in Ext.P2 and also the clarification issued by the AICTE in Ext.P6 that an institute is eligible to apply for additional level - diploma - provided the institute is already offering the same programme in UG level and viceversa, the reasoning of the 2[nd] respondent in Ext.P3 order, in sor far as rejection of the application made by the petitioner for provisional affiliation to Diploma in Automobile Engineering for the academic year 2020-21 cannot be sustained in law. In the result, this writ petition is disposed of by setting -9- W.P.(C). No. 18264 of 2020 aside Ext.P3 order dated 21.08.2020 of the 2[nd] respondent to the above extent and by directing respondents 2 and 3 to reconsider the request made by the petitioner for grant of approval/affiliation to Diploma in Automobile Engineer in its college for the academic year 2020-21, with an annual intake of 60, in terms of the approval granted by the AICTE in Ext.P2, taking note of the law laid down in this judgment, and take an appropriate decision, as expeditiously as possible, at any rate, on or before 15.09.2020. Sd/- **ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 18264 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 27.9.2019 ISSUED FROM THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 4.7.2020 ISSUED BY THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 21.8.2020 ISSUED FROM THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE NOTIFICATION DATED 4.2.2020 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 25.8.2020 TO THE 4TH RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE E.MAIL DATED 27.8.2020 SENT BY THE REGIONAL OFFICE OF THE AICTE.** **EXHIBIT P7 TRUE COPY OF THE PRINT OUT OF THE E.MAIL 28.8.2020.**