Jai Bharath College of Management and Engineering Technology v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **WP(C).No.12973 OF 2020(V)** ## **PETITIONER :** **JAI BHARATH COLLEGE OF MANAGEMENT AND ENGINEERING TECHNOLOGY** **REP. BY ITS CHAIRMAN, ARACKAPADY, VENGOLA P.O., PERUMBAVOOR, ERNAKULAM DIST. -683564.** **BY ADVS. SRI.S.KRISHNAMOORTHY SMT.NITHYA SUGUNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF TECHNICAL EDUCATION, PADMA VILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM, PIN-695023.** - **3 STATE BOARD OF TECHNICAL EDUCATION, REP.BY ITS SECRETARY FORT P.O., THIRUVANANTHAPURAM695023.** - **4 STATE INSTITUTE OF TECHNICAL TEACHERS TRAINING AND RESEARCH (SITTR),** **REP. BY JOINT DIRECTOR, DEPARTMENT OF TECHNICAL EDUCATION, GOVERNMENT OF KERALA, HMT JUNCTION, KALAMASSERY P.O., ERNAKULAM-683104.** - **5 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, REPRESENTED BY MEMBER SECRETARY, NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI-110033.** - **R1 TO 4 BY SRI.M.A.ASIF, SPL.GOVT.PLEADER R5 BY ADV. SRI.SAJITH KUMAR V.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12973 OF 2020(V)** **2** ## **JUDGMENT** The petitioner, which is an institution imparting education in Engineering Courses including Diploma Courses, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to grant necessary approval/affiliation to the Diploma Courses approved by All India Council for Technical Education (AICTE) as per Ext.P2 order dated 13.06.2020 issued by the 5[th] respondent for the current academic year 2020-21; a writ of mandamus commanding respondents 2 and 4 to conduct inspection in the petitioner institution and to satisfy all infrastructure facilities to grant provisional affiliation for the new courses namely Automobile Engineering and Architecture Engineering for the current academic year 2020-21 itself; a writ of mandamus commanding respondents 2 and 4 to include the petitioner institution in the centralized process of allotment in the prospectus for admission to the polytechnic in all five Diploma Courses approved by AICTE in Ext.P2 and to allow the petitioner institution to admit the students for those **WP(C).No.12973 OF 2020(V)** **3** Diploma Courses for the current academic year itself; and a declaration that the 2[nd] respondent is bound to issue necessary affiliation for conducting Diploma Courses in petitioner's institution as approved by the 5[th] respondent in Ext.P2. 2. The grievance of the petitioner is that despite the approval granted by AICTE in Ext.P2 for new Diploma Courses in Automobile Engineering and Architecture Engineering, respondents 2 and 3 have not chosen to grant affiliation to those courses for the academic year 2020-21. 3. On 02.07.2020, when this writ petition came up for admission, this Court passed the following order; “Admit. The learned Government Pleader takes notice for respondents 1 to 4. The learned Standing Counsel takes notice for the 5[th] respondent. There will be an interim direction to respondents 2 and 3 to take up the application for extension of approval of the existing courses as well as for approval of new courses as approved by the AICTE in Ext.P2 within a period of one week from the date of receipt of a copy of this order. The professed Government policy decision not to grant approval shall not be taken as a ground for rejection of the approval. In case there is any defect in the application, the petitioner shall be **WP(C).No.12973 OF 2020(V)** **4** informed immediately and given an opportunity to rectify the same and to remit the fees.” 4. The aforesaid interim order was followed by another order dated 15.07.2020, which reads thus; “The petitioners-Educational Institutions had applied for approval of AICTE, to start certain new Diploma Courses. The AICTE granted approval. The petitioners thereupon approached respondents 1 to 4 for Affiliation of the said new courses by the Director of Technical Education/State Board of Technical Education. When the writ petitions were filed, the last date for getting Affiliation as per the academic calendar of the AICTE was 15.07.2020. As the requisite affiliation was not forthcoming, the petitioners filed afore writ petitions. 2. This Court passed interim orders on 02.07.2020 directing respondents 1 to 4 to take up the applications of the petitioners within a period of one week. This Court directed that the professed Government policy decision not to grant approval, shall not be taken as a ground for rejection. This Court further directed that in case there is any defect in the application, the petitioners shall be informed immediately and given an opportunity to rectify the same and remit the fees. 3. In spite of the directions, the respondents have neither pointed out any defect to the petitioners nor have granted affiliation. The writ petitions **WP(C).No.12973 OF 2020(V)** **5** were filed since the scheduled date 15.07.2020 was fast forthcoming. In the meanwhile, by order dated 22.05.2020 in C.A. No.9048/2012, the Hon'ble Apex Court permitted the AICTE to revise draft calendar, according to which the last date for grant of affiliation by the University/Board now stands extended to 15.08.2020. 4. The petitioners contend that in spite of the directions of this Court on 02.07.2020, the respondents have not moved the files and are sitting on it with an intention to defeat the cause of the petitioners. Therefore, the respondents are compellable to issue provisional affiliation to them forthwith. Only after getting provisional affiliation, the petitioners can cause necessary publicity to the proposed new Diploma Courses, before the admission process starts. 5. Opposing the prayer for grant of provisional affiliation, the learned Government Pleader stated that the admission process has not started and the deadline for grant of affiliation by the University is 15[th] August, 2020. Learned Government Pleader submitted that respondents could not pass orders as directed by this Court due to the prevailing pandemic situation, but asserted that the respondents will be able to conduct inspection of the Colleges by 31.07.2020 and take a decision in the matter thereafter. 6. The learned Government Pleader relied on the **WP(C).No.12973 OF 2020(V)** **6** judgment of the Apex Court in Medical Council of India v. N.C. Medical College and Hospital and others to urge that this Court should not pass such interim orders in the matter of admission. Relying on the judgment of the Apex Court in _**Jawaharlal**_ _**Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet and others** [2018 (14) SCALE 575]_ , it was argued that the respondents are competent to identify the educational needs of the locality before granting affiliation. 7. It is discernible from the pleadings that this Court had passed interim orders directing to consider the applications of the petitioners and pass orders within one week, when the deadline was 15.07.2020. In spite of the direction, the respondents have neither acted on the interim orders, nor did challenge the interim orders of this Court. In the case of the petitioners, the AICTE has already processed the application for approval as per the norms and procedures specified in the Approval Process Handbook as notified by the Council, in addition to the existing Central, State and Local laws. The AICTE has granted the approval only after confirming that the petitioners had fulfilled all the norms and standards following the prescribed procedure. ## 8. In _**Jaya Gokul Educational Trust v. Commissioner & Secretary to Government**_ **WP(C).No.12973 OF 2020(V)** **7** ## _**Higher Education Department, Thiruvananthapuram** [(2000) 5 SCC 231]_ , the Apex Court held as follows:- “No doubt the question of affiliation was a different matter and was not covered by the Central Act but in _T.N. case_ it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions ” of the Central Act. (Emphasis supplied) The judgment in Medical Council of India v. N.C. Medical College and Hospital and others relied on by the Government Pleader related to grant of Letter of Permission in respect of a Medical College and the issue was relating to establishment of a new Medical College. The petitioners are existing approved institutions. The judgment in ## _**Jawaharlal Nehru Technological University**_ _**Registrar** (supra)_ was based on Section 20 of the Telangana Education Act, 1982 as per which obtaining NOC was mandatory. Such a statutory provision in support of the contentions of respondents 1 to 4, was not brought to my notice. 9. Furthermore, this Court in identical circumstances passed interim order on 29.06.2020 in WP(C) No.12514/2020 directing the respondents to accept the application fees and to grant provisional affiliation for Diploma Courses of the **WP(C).No.12973 OF 2020(V)** **8** ## petitioner-institution therein. 10. In view of all the above, there will be an interim order in these writ petitions also directing respondents 1 to 4 to accept the application fees and grant provisional affiliation for Diploma Courses of the petitioners, for which approval is granted by the AICTE. There will be a further direction to the respondents to include the name of the petitionerinstitutions in the Centralised Allotment Process for the said Diploma Courses. This order will be provisional and subject to further orders in these writ petitions. It is made clear that the respondents will be at liberty to make inspections, if any, in the meanwhile, and to bring defects/deficiencies, if any, to the notice of the AICTE.” 5. The learned counsel for the petitioner places reliance on the judgment of this Court dated 11.09.2020 in W.P(C).No.18264 of 2020. Paragraphs 6 to 10 and also the operative portion of the said judgment read thus; “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. Sub-clause (a) of Clause 2.9.1 reads thus: “a. The existing Institutions seeking approval to **WP(C).No.12973 OF 2020(V)** **9** 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 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 **WP(C).No.12973 OF 2020(V)** **10** 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 2020-21 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 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 India, in unequivocal terms, specify **WP(C).No.12973 OF 2020(V)** **11** 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 vice-versa, the reasoning of the 2[nd] respondent in Ext.P3 order, in so 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 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 **WP(C).No.12973 OF 2020(V)** **12** expeditiously as possible, at any rate, on or before 15.09.2020.” 6. Having considered the submissions made by the learned counsel on both sides, this Court finds that this writ petition can be disposed of in terms of the law laid down in the judgment of this Court dated 11.09.2020 in W.P(C).No.18264 of 2020. In such circumstances, this writ petition is disposed of by directing respondents 2 and 3 to consider the application for approval/affiliation to the Diploma Courses in Automobile Engineering and Architecture Engineering in the petitioner College for the academic year 2020-21, in terms of the approval granted by the 5[th] respondent AICTE in Ext.P2 and take an appropriate decision, taking note of the law laid down by this Court in W.P(C).No.18264 of 2020, as expeditiously as possible, at any rate, on or before 15.09.2020. The learned Special Government Pleader shall communicate a copy of this judgment to respondents 2 & 3 forthwith. Sd/- **ANIL K.NARENDRAN, JUDGE** AV/14/9 **WP(C).No.12973 OF 2020(V)** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AFFILIATION ORDER DATED 27.9.2019 ISSUED BY 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPROVAL ORDER ISSUED BY THE 5TH RESPONDENT AICTE DATED 13.6.2020.** - **EXHIBIT P3 TRUE COPY OF THE CIRCULAR ISSUED BY 2ND RESPONDENT DATED 10.2.2020.** - **EXHIBIT P4 TRUE COPY OF THE DD IN FAVOUR OF THE 2ND RESPONDENT ISSUED THROUGH UNION BANK DATED 24.2.2020.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 17.6.2020 ISSUED BY 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REQUEST DATED 20.6.2020 ADDRESSED TO THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 22.6.2020 ADDRESSED TO THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21/08/2020 ISSUED BY THE 2ND RESPONDENT REJECTING THE APPLICATION FOR AFFILIATION.** **EXHIBIT P9 TRUE COPY OF THE RELEVANT PORTION OF THE APPROVAL PROCESS HAND BOOK 20202021.**