Kollengode Educational & Charitable Trust v All India Council for Technical Education (AICTE) & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **WP(C).No. 12157 of 2013 (T)** **----------------------------** ## **PETITIONER:** **KOLLENGODE EDUCATIONAL & CHARITABLE RUST REP.BY ITS ACTING CHAIRMAN, K.UNNIKRISHNAN, S/O. KUNJU 'KAUSTHUBHAM', KATTUKODE, VADAKKENCHERRY PALAKKAD-678 683.** **BY ADV. SHRI KURIAN GEORGE KANNANTHANAM(SR) & ADVS.SRI.NIRMAL. S SMT.VEENA HARI** ## **RESPONDENTS:** **1. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REP.BY MEMBER SECRETARY, 7TH FLOOR CHANDRALOK BUILDING, JANPATH, NEW DELHI-110 001.** **2. THE REGIONAL OFFICER** - **ALL INDIA COUNCIL FOR TECHNICAL EDUCATION SOUTH WESTERN REGIONAL OFFICE BANGALORE UNIVERSITY CAMPUS, P.K.BLOCK, PALACE ROAD BANGALORE-560 009.** **3. THE APPELLATE COMMITTEE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REP.BY MEMBER SECRETARY, 7TH FLOOR CHANDRALOK BUILDING, JANPATH, NEW DELHI-110 001.** **4. THE COMMISSIONER OF ENTRANCE EXAMINATIONS THIRUVANANTHAPURAM, KERALA, PIN-695 001.** **R4 BY GOVERNMENT PLEADER MR. ROSHAN D.ALEXANDER R1 TO 3 BY SRI.S.KRISHNAMURTHY,SC, AICTE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4-7-2013 ALONG WITH W.P.(C)NO.16057/2013, THE COURT ON 18.7.2013 DELIVERED THE FOLLOWING:** ## **WP(C).No. 12157 of 2013 (T)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-------------------------------------** ## **P1 : COPY OF THE JUDGMENT IN WPC NO.29611/12 DTD.5.4.2013.** **P2 : COPY OF MINUTES RECORDING THE RESIGNATION OF THE PREVIOUS CHAIRMAN, DTD.20.3.2013.** ## **P3 : COPY OF THE REJECTION ORDER DTD.10.4.2013.** ## **P4 : COPY OF THE APPEAL DTD.17.4.2013.** **P4(A): COPY OF THE COVERING LETTER ACKNOWLEDGED BY THE REGIONAL OFFICE.** ## **ANNEXURE A1: TRUE COPY OF THE LETTER DATED 1`7.05.2013.** **ANANEXURE A2: TRUE COPY OF THE APPLICATION FOR CONTINUATION OF AFFILIATION SUBMITTED BEFOPRE THE CALICUT UNIVERSITY ALONG WITH PROFORMA TO ACCOMPANY THE REQUEST.** ## **RESPONDENTS' EXHIBITS** **NIL** **ks.** ## **TRUE COPY** ## **P.S. TO JUDGE** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) Nos. 12157 and 16057 of 2013 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 18[th] day of July, 2013 ## **JUDGMENT** The petitioner is the same in both the cases. The prayers raised in the writ petitions are in the following terms: “W.P.(C) No. 12157 of 2013 i To issue a Writ of Mandamus directing the respondents 1 to 3 to grant Extension of Approval (EOA) for the Academic year 2013 - 14 to the petitioner institution. ii. To issue a Writ of Certiorari calling for the records leading to Ext. P3 rejection order dated 10.04.2013 and to quash the original of the same. iii. To issue a Writ of Mandamus directing respondent No. 4 to include the petitioner in the list of institutions/Engineering Colleges to be given allotment for the year 2013 - '14 and also to allot and admit students willing to join the institution for the year 2013 - '14 iv. To issue a Writ of Mandamus directing the respondent No. 3 to hear and dispose of the appeal in the light of the resignation of the former Chairman of the petitioner Trust at the earliest. _W.P.(C) Nos. 12157 and 16057 of 2013_ : 2 : ## W.P.(C) No. 16057 of 2013 i. To issue a Writ of Mandamus directing the 1[st] respondent to facilitate the execution of an agreement so as to enable the 2[nd] respondent to allot students to the petitioner's college. ii. To issue a Writ of Mandamus directing the 1[st] respondent to enter the name of the petitioner's college also among the list of colleges to which allotments are to be made by the 2nd respondent, without waiting for the approval of the Government. iii. To issue a Writ of Mandamus directing the 2nd respondent to provide the Password and login I.D.to the petitioner institution in the Web portal published by the 2nd respondent for the year 2013 - 14. iv. To issue a Writ of Certiorari calling for the records leading to Ext. P9 and to quash the original of the same. v. To issue such other order or direction as this Honourable Court is pleased to pass in the facts and circumstances of this Writ Petition. 2. The sequence of events is as follows [Reference is made to the parties and proceedings as given in W.P.(C) 16057 of 2013] : The petitioner institution was granted Ext. P1 Letter of _W.P.(C) Nos. 12157 and 16057 of 2013_ : 3 : Approval (LOA) by the AICTE on 30.06.2009 with an intake of 240 students in four different disciplines. Extension of Approval (EOA) was given by the AICTE in the next year, but in respect of the academic year 2011-’12, it was refused on the reason that a CBI case was pending against the Chairman of the College. This was challenged by filing W.P.(C) No. 19449 of 2011, which was allowed and extension of approval was ordered to be given in respect of the academic year 2011 –’12 as well, as per judgment dated 07.06.2012. 3. The petitioner applied for extension of approval for the year 2012 – ’13 on time, and in spite of producing copy of the judgment in W.P.(C) 19449 of 2011 in respect of the previous year, it came to be rejected. The reason for rejection for the year 2012 – ’13 was with reference to ' **Clause 3 (1) (d)'** of the Approval Process Handbook (APH), which stipulates that any Institution / Society / Trust / Section 25 Company or a member belonging to these, if charge sheeted, shall not be considered for extension of approval, unless they are acquitted. The petitioner challenged the validity of the said clause as well, before this Court while challenging the order of rejection, by way of W.P. (C) No. 29611 of _W.P.(C) Nos. 12157 and 16057 of 2013_ : 4 : 2012. 4. Admittedly, validity of clause 3 (1) (d) of APH 2012- ’13 was upheld by this Court as per Ext. P3 judgment dated 05.04.2013. There is an observation in paragraph 14 of the said judgment, that the Chairman could have stepped down even before filing of application for extension of approval, to avoid the situation of non-extension of approval by the AICTE, which is heavily relied on in the present round of litigation, in respect of the year 2013 - '14. The petitioner has filed W.A. 650 of 2013 against the said verdict, which is pending. 4. The petitioner filed application for extension of approval for the year 2013 – ’14, which was rejected by the AICTE vide Ext. P4 order dated 10.04.2013 against which an appeal has been filed before the Appellate Committee of the AICTE. W.P.(C) No. 12157 of 2013 came to be filed, placing reliance on the observation made by this Court in Paragraph 14 of the judgment observing that the Chairman could have stepped down to avoid the situation even before filing of the application for extension of approval. It is contended that, the Chairman in fact had stepped down, having resigned from the Trust on 20.03.2013 and since it was thereafter, _W.P.(C) Nos. 12157 and 16057 of 2013_ : 5 : that the application for extension of approval was preferred in respect of the year 2013 – ’14, the petitioner is entitled to have the relief sought for, in view of the observation of this Court as aforesaid. 6. When W.P.(C) No. 12157 came up for consideration before this Court 29.05.2013, the following interim order was passed: The learned Counsel for the petitioner presses for an interim order to direct the 4[th] respondent to include the petitioner in the list of Institutions/Engineering Colleges to be given allotment for the academic year 2013-14, in connection with the allotment of students for the said year. 2. The relief sought for is vehemently opposed from the part of the AICTE stating that the 'Extension of Approval' was never granted in the previous year, in view of registration of a crime by the CBI for various offences including the attempt of the Chairman of the petitioner Trust trying to bribe the authorities of the AICTE. By virtue of Regulation No.3.1(d) of the relevant Regulations, any Institution/Society/Section 24 Company or a Member belonging to any of these, if charge sheeted, shall not be considered for 'Extension of _W.P.(C) Nos. 12157 and 16057 of 2013_ : 6 : Approval' unless they are acquitted. 3. The above Clause and the rejection of the application for 'Extension of Approval' for the academic year 2012-13, stands upheld as per Ext.P1 judgment dated 05.04.2013 in W.P.(C)No. 29611 of 2012. Though it is pending consideration in W.A .650 of 2013, no interim order of stay has been ordered in the writ appeal. 4. The learned Standing Counsel for the AICTE submits that the Chairman of the petitioner Trust, who was proceeded against, has stepped down on the 'eve' of the present academic year, i.e. on 28.02.2013, so as to facilitate somebodyelse to step in, as an attempt to come out of the AICTE Regulations and hence a dubious exercise. In the absence of any 'Extension of Approval' for the previous year, there cannot be any 'Extension of Approval' for the current year and as such, no student can be allotted to the petitioner's institution, submits the learned Standing Counsel. 5. The learned Counsel for the petitioner submits that in the last year, students were admitted and a cheque for Rs. **1,81,000/-** towards amount of tuition fees collected from the students was forwarded to the petitioner, as per letter dated 22.12.2012 issued by the 4[th] respondent. _W.P.(C) Nos. 12157 and 16057 of 2013_ : 7 : 6. The learned Spl. Government Pleader appearing for the 4[th] respondent, submits, on instruction, that the name of the petitioner can be included in the list of Institutions/Engineering Colleges for allotment for the academic year 2013-14, subject to execution of an 'Agreement' with the Government for seat sharing. The said submission is recorded, however without expressing anything on merits. It will be for the 4[th] respondent to take sufficient safeguards/remedial measures by incorporating appropriate terms, to safeguard the interest of the students. Post the matter after completing the pleadings.” But since no agreement was permitted to be executed between the petitioner and the Government, the petitioner was prevented from participating in the Centralized Allotment Process (CAP) so as to have necessary allotment. Hence W.P.(C) No. 16057 of 2013 came to be filed, for directing the first respondent to facilitate execution of 'Agreement' so as to have allotment of students to the petitioner’s Institution and for such other incidental reliefs. 7. The prayer of the petitioner is sought to be resisted by the State (as put forth by the learned Government Pleader) pointing out that the Government was not a party to Ext. P8 interim _W.P.(C) Nos. 12157 and 16057 of 2013_ : 8 : order dated 29.05.2013 (passed in W.P.(C) No. 12157 of 2013). It is also pointed out that, since no extension of approval was granted in respect of the previous year i.e 2012 – ’13, extension of approval cannot be sought for in respect of the current academic year as well. It is stated that no interim order of stay has been granted by the Division Bench in W.A. 650 of 2013 and as on date, and Clause 3 (1) (d) of the APH stands intact, in view of Ext. P3 declaratory judgment. The learned Government Pleader points out that there cannot be any writ of mandamus directing the Government to execute an agreement with the petitioner and that the attempt of the petitioner is to project their profile so as to attract students, proclaiming that they are part of the Centralized Allotment Process (CAP) and that 50 % of the seats are earmarked under the Government quota, based on the Agreement (to be executed between the petitioner and the Government). It is as a matter of 'policy', that the Government has not taken any decision to execute “Agreement” with unapproved colleges, for want of necessary affiliation/extension of approval. 8. Mr. Kurian George Kannanthanam, the learned senior counsel appearing for the petitioner submits that the petitioner is _W.P.(C) Nos. 12157 and 16057 of 2013_ : 9 : entitled to have the relief sought for, in view of the law declared by the Apex Court in **Civil Appeal No. 1145 of 2004 and connected cases** [ **2013 (6) JT 227** (Association of Management of Private Colleges Vs. All India Council for Technical Education and Ors)]. It is pointed out that the Apex Court has held that approval of AICTE is not necessary in respect of the existing institutions and that the exemption available Universities is liable to be extended to the Institutions coming under the Universities. This is sought to be rebutted by the learned Government Pleader pointing out that, extension of approval by the AICTE in respect of the 'Engineering Institutions' was never the subject matter before the Apex Court and that the issue considered by the Apex Court was only with reference to courses like 'MBA & MCA', holding it as outside the purview of the AICTE. 9. After hearing both the sides, this Court finds that the validity of Clause 3 (1) (d) of APH which forms the basis for rejection of extension of approval of the AICTE stands upheld by this Court as per Ext.P3 judgment. Although it is under consideration of the Division Bench in W.A No.650 of 2013, since no interim order of stay has been granted, the verdict stands in tact _W.P.(C) Nos. 12157 and 16057 of 2013_ : 10 : as on date. 10. It cannot, but be said that this Court is not happy with the wordings in Clause 3 (1) (d) of APH, though the object behind the said clause has been highlighted in P3 judgment, as to the necessity to maintain high degree of transparency by the Educational Institutions and the need to avoid corruption. No doubt, Educational Institutions who are to impart learning and develop several traits in the students, moulding their career and person, bringing them up as 'model citizens' of tomorrow, if get indicted in connection with the offence punishable under the relevant provisions of law, it remains a matter to be considered by the competent authority while granting extension of approval. But 'Clause 3 (1) (d)' of APH does not reflect its application to offences involving matters of corruption alone or such other offences like moral turpitude or the like. 'Clause 3 (1) (d)' only refers to filing of a charge sheet which does not say anything with regard to the nature of offence. It could even be for an offence under 'Section 279 of IPC' and if the provision as such is applied in strict terms, without any regard to the offence, it may attract far-reaching consequences without any regard to the scope and intent. Since _W.P.(C) Nos. 12157 and 16057 of 2013_ : 11 : the issue is pending consideration before the Division Bench, this Court does not intend to express anything further in this regard. 11. Confining the scope of scrutiny to be made by this Court in the given set of facts and circumstances, this Court finds that 'Extension of Approval' in respect of the year 2013 – ’14 by the AICTE could be considered, only if there was approval for the previous year, which admittedly was not there, and as such, no relief can be extended to the petitioner. 12. The alleged offence in this case is of course a serious one, attempt to bribe the officers of the AICTE. It is stated that the Chairman has stepped down from the Trust on 20.03.2013 and as such, the offence/insinuating circumstance against the Institution stands purged to the requisite extent; more so in the light of the observation made by the learned Judge of this Court in paragraph 14 of Ext. P3 judgment. The observation made in paragraph 14 of the judgment cannot be read and understood as the law declared by this Court, as it was not an issue projected, argued, considered or decided; but for a passing observation. That apart, even if it is to be considered as a valid proposition, this Court finds it difficult to agree with the same, as it will be easy for _W.P.(C) Nos. 12157 and 16057 of 2013_ : 12 : anybody to get out of Clause 3 (1) (d), by tendering resignation, enabling somebody else of the same team, to take up the position and to seek for extension of approval. 13. It has to be noted, the case registered against the Chairman of the Trust, by the CBI, is with reference to the alleged attempt to bribe the officials of the AICTE in connection with the affairs of the petitioner's Institution. It was an incident, which occurred when the person concerned was representing the Trust and the attempt/advancement, if any, made by the Chairman was not on his personal behalf, but on behalf of the Trust, for the benefit of the Trust/Institution. This being the position, even on stepping down from the office of the Chairmanship or from the Trust, the identity of the 'Trust' remains as it is and merely on once somebody else from the team comes up to occupy the seat, it cannot be said that the insinuation has gone for ever. It is not the purport of the stipulation under Clause 3 (1) (d) of the APH issued by the AICTE. In the said circumstances, this Court finds that the prayer sought for by the petitioner seeking to set aside the rejection of extension of approval as per the order dated 10.04.2013 (Vide Ext. P3 in W.P.(C) No. 12157 of 2013) or to _W.P.(C) Nos. 12157 and 16057 of 2013_ : 13 : issue a writ of mandamus to direct the concerned respondent to grant concurrence of approval for the Academic Year 2013 - '14 is not liable to the entertained; so long as Clause 3 (1) (d) of the 'APH' stands. 14. As mentioned hereinbefore, the prayers in W.P.(C) No. 16057 of 2013 are more for directing the first respondent to cause execution and agreement with the petitioner and to direct the second respondent to make necessary allotment of students to the petitioner's institution and to provide 'password' and 'log in ID' in connection with the admission for the year 2013 - '14. There, cannot be any writ of mandamus to execute an 'Agreement', for the obvious reason that an “Agreement” can be arrived at only at the behest of a valid proposal, subject to acceptance by the otherside, supported by valid consideration. The State has made it clear point blank, that the State does not intend to execute any Agreement with any Institution/Body, who is having no approval, which of course, is a matter of 'policy' of the Government. This being the position, the Government cannot be directed to execute any 'Agreement' with the petitioner, in order to have allotment of students from Centralized Allotment Process (CAP) that is being _W.P.(C) Nos. 12157 and 16057 of 2013_ : 14 : pursued. 15. The remaining question to be considered is the scope of the judgment passed by the Apex Court as per the decision reported in **2013 (6) JT 227** (cited supra), which is sought to be heavily relied on by the petitioner to contend that extension of approval of the AICTE is not required in respect of the petitioner's Institution, having obtained approval already in 2009; which was extended for 2010 - '11 and for 2011 - '12. The factual position discussed by the Apex Court as revealed from paragraph '2' of the judgment shows that the Appellant Colleges in the State of Tamil Nadu were in fact running Arts and Science courses affiliated to Bharathidasan University or Manonmaniam Sundaranar University. It is also revealed that the subject matter of consideration was with reference to MCA/MBA courses and the role of the AICTE with regard to the approval to be given, if any. The specific points raised by the Apex Court in the above background are as given in paragraph '35', which reads as follows : **“35.** On the basis of the factual and rival legal contentions urged on behalf of the parties the following points would arise for consideration of this Court in these civil appeals:-- _W.P.(C) Nos. 12157 and 16057 of 2013_ : 15 : (1) Whether the colleges affiliated to a university comes within the purview of exclusion of the definition of “Technical Institution” as defined under Section 2 (h) of the AICTE Act, 1987? (2) Whether the AICTE has got the control and supervision upon the affiliated colleges of the respective universities of the member colleges of the appellant in C.A. No. 1145/2004 and the appellants in connected appeals ? (3) Whether the MCA course be construed as technical education in terms of definition under section 2 (g) of the AICTE Act ? (4) Whether the Regulation 8 (c) and 8 (iv) by way of amendment in the year 2000 inserting the words “MBA and MCA” before Architecture and Hotel Management courses is applicable to the concerned colleges of the appellants? (5) Whether non placement of the amended Regulations before Houses of the Parliament as required under section 24 of the AICTE Act is vitiated in law ? (6) Whether the law laid down by this Court in **Bharathidasan University's case, Abhiyaman Education and Research Institute case** and **Jaya** _W.P.(C) Nos. 12157 and 16057 of 2013_ : 16 : **Gokul Educational Trust** case is application to fact situation of the concerned colleges of the appellants? The entire discussion in the said case and the observations, were with reference to the factual scenario as mentioned above and in answer to the various questions/issues raised in paragraph 35. This being the position, this Court finds that necessity for extension of approval of the AICTE for the Institutions running 'Engineering Colleges' was not a point which was sought to be considered therein. This Court finds that the said decision does not come to the rescue of the petitioner in respect of extension of approval required for Engineering courses. In the above circumstances, this Court finds that no interference in warranted either in W.P.(C) No. 12157 of 2013 or in W.P.(C) No. 16057 of 2013. However, in view of the submission made by the learned Government Pleader appearing for the respondents that the objection was mainly with regard to alleged right of the petitioner to have an 'Agreement' executed in connection with the Centralized Allotment Process (CAP) for getting the students alloted in the said process, this Court makes it clear that the issue whether the petitioner is entitled to proceed with _W.P.(C) Nos. 12157 and 16057 of 2013_ **==> picture [36 x 10] intentionally omitted <==** admission of students on its own, is left open and this will be subject to the verdict to be passed by the Division Bench of this Court in W.A. 650 of 2013, which is stated as pending consideration before the Division Bench. Interference is declined and both the writ petitions are dismissed accordingly. sd/- **P. R. RAMACHANDRA MENON,** **(JUDGE)** kmd