MANAGER, MAR BASELIOS COLLEGE OF ENGINEERING & TECHNOLOGY v. UNIVERSITY OF KERALA & ORS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933** **WP(C).No. 28352 of 2011(T) --------------------------** ## **PETITIONER(S):** **--------------** **THE MANAGER, MAR BASELIOS COLLEGE OF ENGINEERING & TECHNOLOGY, BETHANI HILLS, NALANCHIRA, THIRUVANANTHAPURAM-695015.** **BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.JIJI THOMAS SRI.MATHEW K. SIMON** ## **RESPONDENT(S):** - **--------------** **1. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM-695034.** **2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA,THIRUVANANTHAPURAM-695034.** **3. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPT. GOVT. SECRETARIAT, THIRUVANANTHAPURAM-685001.** **ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R1 & 2 SR GOVERNMENT PLEADER SMT.RAJASREE M.J FOR R3 SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. FOR R1-2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2011, ALONG WITH WPC NO. 29075 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.28352/11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 TRUE COPY OF THE COVERING LETTER DATED 30-8-2010 TO THE 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE APPLICATION FOR AFFILIATION FOR STARTING NEW COURSES DT.30-8-2010. EXT.P3 TRUE COPY OF THE LETTER DATED 5-9-2011 TO THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE LETTER DATED 13-9-2011 TO THE PETITIONER. EXT.P5 TRUE COPY OF THE LETTER DATED 15-10-2011 ISSUED BY THE REGISTRAR OF KERALA UNIVERSITY. EXT.P6 TRUE COPY OF THE LETTER OF CONSENT DATED 15-10-2011 ISSUED BY -DO-** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NOs. 28352 & 29075 OF 2011 ==========================** ## **Dated this the 6[th] day of December, 2011** ## **J U D G M E N T** Issues raised in these writ petitions are common and therefore these cases were heard together and are disposed of by this common judgment. 2. For the sake of convenience, facts pleaded in WP(C) No.29075/11 are referred to. 3. Petitioner is an educational agency which has established a Self Financing Engineering College. The college is affiliated to the 1[st] respondent University. For the academic year 2011-12, after obtaining approval from the AICTE, petitioner made application to the University for affiliation for M.Tech courses in the disciplines of Computer Science and Engineering, Civil and Structural Engineering, Electronics and Communication - Signal Processing. On receipt of the application, University issued Ext.P1 communication informing the petitioner that the application was not submitted along with detailed project report and that on considering the application, the application was found to be defective. It is seen that on receipt of Ext.P1, the defects **WPC Nos.28352 & 29075/11** **:2 :** pointed out were answered by the petitioner as per Ext.R1(a) letter and while so, the petitioner also obtained Ext.P2 dated 1/9/11 whereby the AICTE accorded approval for starting M.Tech Computer Science and Engineering for the academic year 201112. 4. On receipt of Ext.P2, petitioner pursued the application which it had already made for affiliation and thereafter the University issued Ext.P3 communication informing the petitioner that an inspection for assessing the infrastructural and instructional facilities would be conducted on 16/9/11. Accordingly inspection was conducted and according to the petitioner, coming to know of the contents of the inspection report, they also submitted Ext.P4 clarification. Here, it should be stated that in the counter affidavit filed by the University, they do have a case that they have not received Ext.P4. Be that as it may, subsequently, the University issued Ext.P5 communication to the petitioner informing that in the inspection, the following deficiencies have been noticed. _“Appointment of atleast one faculty with Ph.D Degree in Computer Science and Engineering._ **WPC Nos.28352 & 29075/11** **:3 :** _More books to be procured in the department library. PG Lab be equipped with sufficient computer and accessories”_ Petitioner was asked to rectify the defects ad submit a compliance report. 5. On 15/10/11, the University also issued a letter of consent stating interalia that they consent to the petitioner proceeding with starting of the courses and that the University will consider grant of affiliation subject, among others to the fulfilment of the conditions specified by the State Government/University. According to the petitioner, on receipt of Ext.P5, they submitted Ext.P7 informing the University that the inadequacies mentioned in Ext.P5 have been rectified and requested the University to grant affiliation for the M.Tech Course. There was no further progress in the mater and therefore the writ petition has been filed with a prayer to direct the University to grant affiliation to the petitioner College for M.Tech in Computer Science and Engineering sanctioned by the AICTE as per Ext.P2. 6. The case of the petitioner is mainly that one of the defects mentioned in Ext.P5 is that the appointment of atleast one **WPC Nos.28352 & 29075/11** **:4 :** faculty with Ph.D in Computer Science should be made by the petitioner. It is contended that in terms of the the relevant provisions of the Kerala University Act and the Statutes, for making an application for affiliation, all that is required is to furnish information, among others, regarding the proposed staff strength. In other words, what is contended is that the actual appointment need be made only for commencing classes and not for either making an application for affiliation or for the University to consider the same. 7. Yet another contention raised by the learned counsel for the petitioner is regarding the specification in Ext.P6 letter of consent issued by the University that the petitioner should fulfil the condition specified by the State Government. Referring to Ext.P8, a communication issued by the Director of Technical Education on 14/10/11, learned senior counsel for the petitioner contended that the University keeps applications for affiliation pending receipt of NOC from the Government and that for the Government to issue the NOC, the Government insists that the management should enter into a seat sharing agreement with the **WPC Nos.28352 & 29075/11** **:5 :** Government whereby the managements should surrender 50% of the seats to be filled up from among candidates sponsored by the Commissioner for Entrance Examination. It is stated that neither the University Act or the statutes framed thereunder, as it presently stands, is there any provision obliging the managements to surrender any seats nor is there any provision enabling the Government or University to compel the Colleges to do so. It was also contended that the University Act or Statutes do not enable the Government to insist that college should fulfill the conditions specified by it as a condition for affiliation. 8. I heard the Standing counsel appearing for the University and the learned Government Pleader appearing for the 3[rd] respondent. According to the learned counsel for the University, it is perfectly within the power of the University to insist on conditions for grant of affiliation. It is stated that this power of the University has been recognized by the Apex court in _**T.M.A.Pai Foundation v. State of Karnataka**_ {(2002) 8 SCC 481}, _**Islamic Academy of Education v. State of Karnataka**_ {(2003) 6 SCC 697} and _**P.A.Inamdar v. State of**_ ## **WPC Nos.28352 & 29075/11** **:6 :** _**Maharashtra**_ {(2005) 6 SCC 537}. It is contended that the affiliated colleges are bound to comply with such conditions which are imposed by the University. It is stated that it was therefore that in Ext.P6, the University insisted that the college should fulfill the conditions specified by the Government. 9. I have considered the submissions made. 10. Section 23 of the Kerala University Act lays down the powers of the Syndicate. This section provides that subject to the provisions of the Act and the Statutes, the executive powers of the University shall be vested in the Syndicate and that subject likewise, the Syndicate shall have the powers enumerated therein, which includes, the power to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in the Act and the Statutes. The relevant provisions of the University Statute are those contained in Chapter 24 of the Kerala University First Statutes 1977, which lays down the procedure to be adopted by the Syndicate in granting affiliation to new colleges and for new courses. Statute 7 lays down the procedure on receipt of the application, Statute 8 deals with local ## **WPC Nos.28352 & 29075/11** **:7 :** enquiry to be conducted and Statute 9 provides for grant of affiliation. Similarly, Statute 12 provides for conditional affiliation. These are the relevant provisions of the Act and the Statutes and none of the provisions contained in either the Act or the Statute, is there any provision enabling the University to insist that a college should fulfill the conditions specified by the Government for grant of affiliation. 11. In so far as the judgment relied on by the learned counsel for the petitioner is concerned, in para 67 of _**T.M.A.Pai Foundation v. State of Karnataka**_ {(2002) 8 SCC 481}, the Apex Court examined the scope of the regulations that can be framed relating to the Private Unaided Professional Institutions. Examining this issue, the Apex Court held that it would be permissible for the University or Government at the time of granting recognition to require a private unaided institution to provide for merit based selection, while at the same time giving the management sufficient discretion in admitting students. The law thus laid down has been reiterated by the Apex Court in the subsequent judgments in _**P.A Inamdar**_ and _**Islamic Academy**_ ## **WPC Nos.28352 & 29075/11** ## **:8 :** (supra). 12. However, as already noticed, what the Apex Court examined in these judgments is the scope of the regulations that can be framed by the University and Government. Therefore, if at all it is permissible, such restrictions can only be in the form of regulations which are to be framed either by the University or by the Government as is permissible in the University Act or the University Statutes. In so far as the case in hand is concerned, even the University has no case that as at present there is any Regulation in that behalf, either in the Act or in the statute enabling the University to require that for grant of affiliation, the College should fulfill the conditions that are specified by the State Government. If that be so, the prescription in Ext.P6 letter of consent dated 15/10/11 to the extent that the University will consider affiliation requested by the petitioner subject to fulfillment of condition specified by the Government is clearly illegal. 13. The next question that was debated at the bar was regarding Ext.P5 where one of the deficiency pointed out was that ## **WPC Nos.28352 & 29075/11** ## **:9 :** the petitioner should make appointment of atleast one faculty in Ph.D Degree in Computer Science and Engineering. In so far as this deficiency is concerned, the contention raised was that for making application for affiliation, what is required is to furnish qualifications,salaries, work of the teachers and details of proposed staff pattern together with a timetable of the work. In other words, what was contended was that the actual appointment is not a specification in the form of application. 14. Statute 2 of Chapter 24 of the University Statute prescribes the form of application for affiliation. Among various matters in respect of which an applicant has to furnish information, one of the specifications reads thus: “ _Clause (e): qualifications, salaries, work of the teachers and details of proposed staff pattern together with a timetable of the work”._ 15. A reading of this provision therefore shows that an application for affiliation can be made by furnishing details of proposed staff pattern. In other words, it is not the requirement of law that the actual appointment of faculty should be made ## **WPC Nos.28352 & 29075/11** **:10 :** before making an application for affiliation. Therefore, the aforesaid defect pointed out in Ext.P5 referred to above runs counter to Statute 2 of Chapter 24. 16. In the light of the above discussion, the University is liable to consider the application made by the petitioner in WP(C) No.29075/11 for affiliation in the light of Ext.P7 reply furnished by the petitioner to Ext.P5. It is directed that the University will consider the application and orders thereon will be passed as expeditiously as possible. 17. In so far as WP(C) No.28352/11 is concerned, the issue raised is similar in all respects. Therefore, this writ petition is also disposed of directing that the University will consider the application made by the petitioner for affiliation for M.Tech in Computer Science sanctioned by the AICTE in the light of the observations herein above. Writ petitions are disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp