Kerala Self Financing Polytechnic College Management Association & Others v. State of Kerala & State Board of Technical Education & Director of Technical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** ## **WP(C).No.14668 of 2019** ## **PETITIONERS:** - **1 KERALA SELF FINANCING POLYTECHNIC COLLEGE MANAGEMENT ASSOCIATION, REPRESENTED BY ITS PRESIDENT, BISHOP HOUSE, NOORANI.P.O., PALAKKAD, KERALA-678 004** **2 GREGORIAN INSTITUTE OF TECHNOLOGY, REPRESENTED BY ITS CHAIRMAN,KANJIRAPPARA P.O., KANGAZHA, KOTTAYAM DISTRICT-688 565** - **3 ST.MARY'S POLYTECHNIC COLLEGE, REPRESENTED BY ITS DIRECTOR, VALLIYODE, MUDAPALLOOR P.O., PALAKKAD-678 705** **BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.ALEX GEORGE (CHAMAPPARAYIL) SRI.P.M.SANEER SRI.THOMAS GEORGE SRI.TONY GEORGE KANNANTHANAM** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE STATE BOARD OF TECHNICAL EDUCATION, REPRESENTED BY ITS MEMBER SECRETARY, OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM-695 001** - **3 THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM-695 001** **SRI.M.A.ASIF, SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.6.2019, THE COURT ON 04.07.2019 DELIVERED THE FOLLOWING:** WP(C).No.14668 of 2019 2 ## **J U D G M E N T** This writ petition is filed by a registered association of the Managements of Private Self Financing Polytechnic Colleges and two member managements under the 1[st] petitioner seeking to quash Ext.P5 notification dated 7.5.2019 issued by the Director of Technical Education, Trivandrum inviting applications for affiliation of diploma programmes from various agencies intending to establish new polytechnic colleges or to start new diploma programmes in existing polytechnic colleges and also for the affiliation of existing diploma programmes in the polytechnic colleges to the State Board of Technical Education for the year 2019-2010. The applications are categorised into A to D, which are 1) Initial provisional affiliation to a programme for a period of one academic year, based on LoA from All India Council of Technical Education (AICTE) (Applicable to new programmes), 2.Extension of provisional affiliation for a period of one academic year (Applicable for programmes started in the last years 2017-2018 or 2018-2019). 3) Provisional WP(C).No.14668 of 2019 3 affiliation/extension of provisional affiliation, for a period of three academic years (Applicable to programmes which have successfully renewed annual provisional affiliation for three consecutive years/programmes started in 2016-2017 or earlier and not eligible for permanent affiliation), and 4. Programmes requesting permanent affiliation (Applicable to programmes holding NBA accreditation and for which three consecutive batches of students have completed their academic programme). The applications are regulated _inter alia_ with restriction of last date for submission of applications for category A on 13.5.2019 and last date for submission of applications for category B,C & D on 30.5.2019. As per the Annexure provided to the said notification produced as Ext.P6, an amount of Rs.5,000/- is fixed as application fee and an amount of Rs.30,000/- is fixed as inspection fee for new programmes, which shall not be refundable and shall be remitted along with the application in the manner prescribed thereunder. Inspection fee of Rs.30,000/- for extension of affiliation of existing programmes, provisional affiliation fee of Rs.7,00,000/- for new WP(C).No.14668 of 2019 4 institutions, Rs.2,00,000/- for starting new programmes in existing institutions, Rs.1,00,000/- for annual extension of provisional affiliation of programmes in existing institutions, Rs.1,50,000/- for three year extension of provisional affiliation of programmes in existing institutions, and permanent affiliation fee of Rs.2,00,000/- for category D affiliation. According to the petitioners, the State Board of Technical Education is not vested with powers to issue any such notification and the power is absolutely vested with the State Government, evident from clause 3 of the rules and regulations for Affiliation of Diploma Level Technical Programmes issued by the State Government, which read thus: a) Grant Affiliation to Colleges: The SBTE shall have the power to affiliate any academic programme in any institution within the SBTE area, for admission to the examinations for diploma and other academic distinctions of the SBTE. b) Suspension or Withdrawal of Affiliation: The SBTE shall have the power at any time after adopting such procedures to suspend or withdraw the affiliation granted to an academic programme. WP(C).No.14668 of 2019 5 2. Relying upon the said provision, it is submitted that, the notification is issued by the Member Secretary of the State Board of Technical Education, Kerala i.e., the Director of Technical Education and therefore, the notification cannot be sustained since the power to do so is absolutely vested with the State Board of Technical Education, as per rule 3 specified above. It is also pointed out that, rule 6 thereunder deals with the procedure for grant/withdrawal of affiliation to a programme and therefore, if at all the State Board of Technical Education has intended to bring out any such notification, it should have been done by the State Board itself and there is no power vested with the Director of Technical Education, who is a Member Secretary to issue a notification. It is also apprehended that, by issuing Ext.P5 notification and Ext.P6 Annexure, the existing institutions under the 1[st] petitioner association is being compelled to pay the affiliation fees as per category 'C' i.e., the provisional affiliation/extension of provisional affiliation from the year 2016-2017 or earlier. It is thus seeking appropriate reliefs, this writ petition WP(C).No.14668 of 2019 6 is filed. 3. Second respondent has filed a detailed counter affidavit basically disputing the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, as per the recommendations of the Co-ordinating Committee of the All India Council for Technical Education in its 18[th] meeting held on 15.01.1954, Technical Education Department was constituted in each State for the advancement of Technical Education. In the State of Kerala, in the Higher Education Department, the Technical Education Directorate so constituted stood as a separate unit mainly focusing on the advancement of Technical Institutions. There were Junior Technical Schools, technical institutions functioning under the Directorate of Industries and Commerce and there were Polytechnics and Technological institutions under Universities. In order to co-ordinate the above three departments for imparting technical education, the Technical Education Department was constituted. Thereafter, the Government of India suggested for the creation of State Board of Technical Education, which is now vested with the functions of accreditation and WP(C).No.14668 of 2019 7 affiliation of institutions and courses and curriculum. It was accordingly that the Board was constituted in the year 1957. It was again reconstituted in 2012 as a part of rejuvenating the diploma level education system in the State so as to meet the new challenges, development and modernisation happening in the technical education sector globally. In the meanwhile, the diploma level technical education was also brought under the All India Council of Technical Education and the approval of the said body was made for establishing any polytechnic colleges in the country. 4. Even though in the case of Under Graduate and Post Graduate and such other courses, the Affiliating Body is the University, in the case of diploma level education, the Affiliating Body is the State Board of Technical Education. Therefore, as the Affiliating Body, the State Board of Technical Education is bound to ensure the academic standards in such technical eduction institutions. Therefore, the approval of the AICTE does not mean an unconditional affiliation of the institution by the Affiliating Authority which has ample powers to prescribe higher standards, which is WP(C).No.14668 of 2019 8 made clear as per clause 1.10(h)of the approval handbook of the AICTE, which read thus: _“Validity of letter of approval, if issued, shall be for two academic years from the date of issue of letter of approval, only for obtaining affiliation from the respective University/Board and fulfilling State Government/Union Territory requirements for admission in the current academic year. Even if the institution fails to admit the students in the current academic year due to non-affiliation by the University/Board or non-fulfilment of the State Government/Union Territory requirements , the institution has to apply online on the AICTE web portal for extension of approval for the next academic year.”_ **==> picture [407 x 11] intentionally omitted <==** respondents that, the Central Regulatory Authority only fixes the over all minimum standards and such minimum standards does not automatically result in affiliation of an institution, if such institution is not upto the mark prescribed by the Affiliating Authority. **==> picture [407 x 12] intentionally omitted <==** process was introduced in the State during the academic year 2018-2019 for new institutions. During the current academic year, Ext.P5 notification was WP(C).No.14668 of 2019 9 issued, inviting application for affiliation of new institutions as well as for existing institutions. It is also submitted that, for the purpose of affiliation, all existing institutions are deemed to have provisional affiliation and they need to apply for extension of affiliation alone. It was accordingly that the categorization is made in Ext.P5 notification into A to D and the petitioners come under 'C' category i.e., they are entitled for extension of provisional affiliation for a period of three years at a time. That apart it is contended that, for the process of affiliation the institution has to pay application fee, inspection fee and affiliation fee in accordance with Ext.P6 Annexure and the inspection fee is the fixed amount for each one of the programmes and the institution has to pay fixed inspection fee for all programmes that are being imparted. It is further submitted that, the apprehension of the petitioners that, existing institutions will have to pay the affiliation fee retrospectively from the year of its inception is a misnomer. It is also clear and discernible from Ext.P5 that, existing institutions need to go for extension WP(C).No.14668 of 2019 10 of provisional affiliation alone as they are deemed to be provisionally affiliated and the affiliation fee payable depends upon the type of affiliation they are applying for as mentioned in the notification as well as in Annexure. Yet another contention advanced is that, the State Board of Technical Education has to perform several functions and has to continuously monitor the institutions so as to ensure the quality of education for a period of 3 years in the case of 'C' category and therefore, the fee charged is in accordance with law. 6. That apart during the course of arguments learned Special Government Pleader has produced the Government Order dated 4.6.2019 bearing No.G.O(MS)156/2019/HEDN whereby the Government have examined the proposal and approved the rules and regulations and format for application, _pari materia_ to Ext.P4 and Ext.P6 Annexure for the ensuing year 2019-20 respectively, and also ratifying the action taken by the Director of Technical Education as per the Rules and regulations for the academic year, 20192020. 7. I have heard learned senior counsel for WP(C).No.14668 of 2019 11 petitioners, Sri.Kurian George Kannanthanam, assisted by Adv.P.M.Saneer and learned Special Government Pleader, Sri.M.A.Asif and perused the pleadings and documents on record. 8. The facts and circumstances pointed out above would make it clear that, the main apprehension pointed out by the petitioners is that, the affiliation fee prescribed under Ext.P6 read with Ext.P5 notification is with retrospective effect to the colleges started from 2016. However, it is clear from the notification itself that, it only stipulates the provisional affiliation/extension of provisional affiliation for a period of three academic years to the institutions, which have renewed annual provisional affiliation for consecutive years/programmes started in 2016-2017 or earlier and not eligible for permanent affiliation. So also no further deliberation with respect to the said stipulation is required since in the counter affidavit filed by the 2[nd] respondent it is categorically stated that, the existing institutions need not pay the affiliation fee retrospectively from the year of its inception at all and it is only a misapprehension of WP(C).No.14668 of 2019 12 the petitioners. So far as the second issue is concerned, it is relating to the power of the Director of Technical Education to issue Ext.P5 notification dated 7.5.2019 categorising various programmes and Ext.P6 Annexure, imposing fees to categories A to D. The paramount contention advanced is that, as per rules and regulations for affiliation, only State Board of Technical Education alone is vested with powers, however, the notification is issued by the Director of Technical Education, who is only the Member Secretary of the State Board. 9.The sum and substance of the contention is that, the Member Secretary has usurped the power of the State Board and therefore, Ext.P5 cannot stand the test of law and consequentially Ext.P6 Annexure also is illegal and arbitrary. However, the notification dated 4.6.2019 shows that, Letter No.L1/23498/17/DTE dated 7.5.2019 was forwarded by the Director of Technical Education to the State Board of Technical Education and it was thereafter that, the notification was issued by the State Government ratifying the action of the State Board of Technical Education and approving the rules and regulations for the academic WP(C).No.14668 of 2019 13 year 2019-2020. Therefore, even assuming that the State Board alone is vested with powers for issuing such notification, it is seen that, the notification prepared and communicated by the Director of Technical Education was later evaluated and approved by the Board and if at all the notification had any legal infirmity as contended, on ratification by the State Board, it has become inconsequential and attained all the characteristics of a valid notification in accordance with the Rules. That apart rule 3 deals with powers to grant or withdraw affiliation, and the notification issued by the Director in his status as Member Secretary is only a preparatory action or a prelude to the affiliation. Looking from that angle also as and when ratification of the action is done, whatever adverse consequences the notification had, it is vanished. Which thus also means, the process of the notification has attained finality when the ratification was done by the State Board. It is equally important to note that, the business of the Government is carried out also by ratification which could be an act of formal approval last in the series of action and cannot be said as any action contrary to WP(C).No.14668 of 2019 14 law or the democratic process of law making. Which thus also means there is clear approval and acceptance by the Board. The Apex Court also had occasion to consider this issue in **State vs. Dr.R.C.Anand** [(2004)4 SCC 615). So much so no manner of prejudice is caused to the petitioners solely due to the ratification done by the State Board. Evaluating so, I do not think that, Exts.P5 and P6 are illegal and arbitrary. 10. Therefore, on an appreciation of the entire legal and factual circumstances, it could be clearly seen that, the Member Secretary of the State Board did not finalise anything materially and at the worse it could be said that, the matter was pending before the State Board for approval from 7.5.2019 on wards, and it has come into effect and force from the said date, by ratification on 4.6.2019. So also it is clear that, the fees are charged for the purpose of carrying out periodical inspection by the officers of the Board and it cannot be said to be arbitrary or illegal in any manner, since even in spite of the approval granted by the AICTE, in order to identify the standards maintained and infrastructure provided by the institutions, continuously the State Board is duty WP(C).No.14668 of 2019 15 bound to carry out periodical inspection to protect the interest of the student community, which is a _sine qua non of the approval and affiliation. Therefore, there is clear quid proquo also for the charges imposed._ 11. It is also clear from the contentions advanced and the grounds raised in the writ petition that the petitioners were apprehensive of retrospective levy of the affiliation fees from the year 2016 and the allegations of arbitrariness and illegality seem to be founded on the said contention alone, however, the State Board has stated in unequivocal terms that, it has no such intention. Though no pleadings are raised with respect to arbitrariness on account of different treatment to Government/ Government Aided and Government controlled self financing institutions in the matter of affiliation fee, inspection fee and affiliation fee on the basis of stipulations contained in Ext.P6 Annexure, arguments are advanced by the learned Senior Counsel in that regard. But I am of the considered opinion that, such institutions are a class apart from the self financing institutions in private sector in WP(C).No.14668 of 2019 16 various respects, including in the matter of charging moderate tuition and other fees. So also, such institutions are functioning under the State Government and their activities are substantially controlled and regulated by the Government. Therefore, the classification done so cannot be said to be arbitrary or illegal. 12. Upshot of the above discussion is, Ext.P5 notification and Ext.P6 Annexure cannot be said to be illegal or arbitrary in any manner justifying interference of this court exercising the power of judicial review under Article 226 of the Constitution of India. The order dated 4.6.2019 is made part of this writ petition. Writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** Smv **JUDGE** 28.6.2019 WP(C).No.14668 of 2019 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE LIST OF THE MEMBERS UNDER**| |---|---| ||**THE 1ST PETITIONER**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER DATED 15.1.2018 OF**| ||**THE HIGHER EDUCATION (L) DEPARTMENT, WITH**| ||**ANNEXURE**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER DATED 23.6.2018 OF**| ||**THE HIGHER EDUCATION (L) DEPARTMENT**| |**EXHIBIT P4**|**TRUE COPY OF THE RULES AND REGULATIONS FOR**| ||**AFFILIATION OF DIPLOMA LEVEL TECHNICAL**| ||**PROGRAMMES**| |**EXHIBIT P5**|**TRUE COPY OF THE NOTIFICATION DATED**| ||**7.5.2019 ISSUED BY THE MEMBER SECRETARY,**| ||**SBTE**| |**EXHIBIT P6**|**TRUE COPY OF THE ANNEXURE APPENDED TO**| ||**EXT.P5**| |**EXHIBIT P7**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**10.5.2019 BY THE 1ST PETITIONER**|