Mangalam College of Engineering v. APJ Abdul Kalam Technological University and AICTE

**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.18270 OF 2020(G)** ## **PETITIONER/S:** **MANGALAM COLLEGE OF ENGINEERING, MANGALAM HILLS, VETTIMUKAL P.O., ETTUMANOOR, KOTTAYAM-686631, REPRESENTED BY ITS SECRETARY, BIJU VARGHESE.** **BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC** ## **RESPONDENT/S:** **1 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS, ENGINEERING COLLEGE POST OFFICE, THIRUVANANTHAPURAM-695016, REPRESENTED BY ITS REGISTRAR. 2 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NELSON MANDELA MARG, VASANT KUNJ POST, VASANT KUNJ, NEW DELHI-110070, REPRESENTED BY ITS CHAIRMAN.** **R2 BY ADV. SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - AICTE** ## **OTHER PRESENT:** ## **SRI ELVIN PETER-STANDING COUNSEL FOR R1** **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. 18270 of 2020 ## **JUDGMENT** The petitioner, which is a college imparting education in MBA Programme and also in the discipline of Engineering at graduation and post graduation levels, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent APJ Abdul Kalam Technological University to grant affiliation to the petitioner College for MBA Programme for the academic year 2020-21 with an annual intake of 120. 2. The grievance of the petitioner is that though the 2[nd] respondent All India Council for Technical Education (AICTE) has granted Ext.P7 approval with annual intake of 120 seats for MBA, the 1[st] respondent University in Ext.P9 order dated 14.08.2020 granted affiliation only for an annual intake of 90. 3. On 07.09.2020, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent University and also the learned Standing Counsel for the 2[nd] respondent AICTE sought time to get instructions. -3- W.P.(C). No. 18270 of 2020 4. During the course of arguments, it is pointed out by the learned counsel on both sides that the issue raised in this writ petition is covered in favour of the writ petitioner by the judgment of a Division Bench of this Court 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]** . Paragraphs 33 to 35 and also the last paragraph of the said decision read thus; "33. We have evaluated the rival submissions and have gone through the written submissions made by the respective counsel, and we are of the considered opinion that in the light of the AICTE Act, 1987, Regulations 2020, and the Approval Process Hand Book, 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. We also will have to legally presume that during the process undertaken by it, the AICTE has adhered to the mandatory exercises as per the provisions of law, especially due to the fact that it is not specifically mentioned and established by the University or the State as to the mandatory procedural failure on the part of the AICTE in carrying out its obligations and -4- W.P.(C). No. 18270 of 2020 duties before grant of the approval. Moreover, the AICTE Act, 1987, the Regulations for the Grant of Approval for Technical Institutions, 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 in the judgements discussed supra. The documents produced along with the writ petitions and the appeals would prove that the AICTE has conducted inspection and drawn reports also and therefore, cannot be said that the AICTE has not adhered to the procedure prescribed for approval of the additional courses. Moreover, Articles 245 and 246 of the Constitution of 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. For convenience, Articles 245 and 246 of the Constitution of India are extracted hereunder: “ **245. Extent of laws made by Parliament and by the Legislatures of States** (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or -5- W.P.(C). No. 18270 of 2020 any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 246. **Subject matter of laws made by Parliament and by the Legislatures of States** (1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh -6- W.P.(C). No. 18270 of 2020 Schedule (in this Constitution referred to as the “State List”) (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.” Admittedly, the subject issue is the domain of the Union Government due to the fact that higher education is included in entry 66 of list I of Schedule VII, dealing with co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. 34. Above all, taking into all those aspects, we find that the University is not entitled to challenge the approval granted by the AICTE to the appellant institutions collaterally in the writ petitions filed by the aggrieved institutions on account of non-consideration of the applications submitted by the institutions for addition of courses in their institutions in accordance with the requirements put forth by the AICTE as per its Regulations and Approval Process Hand Book. 35. Judging so, we are of the opinion that the University and the State did not have any power to incorporate the conditions in the orders in question, and the Syndicate to take the decisions discussed above for consideration of -7- W.P.(C). No. 18270 of 2020 the applications pending before the University seeking affiliation for additional courses. Therefore, we are inclined to interfere with the judgement of the learned single Judge to that extent. Accordingly, we partly set aside the judgement of the learned single Judge in the writ petitions specified above, and direct the Vice Chancellor of the University to consider the applications submitted by the appellants _dehors_ the order of the University dated 10.06.2020 and the decision of the Syndicate dated 24.06.2020 at the earliest, taking into account the fact that the AICTE has extended the last date for the affiliation to 15.09.2020 and we are also informed that though Miscellaneous Application No. 1693/2019 in C.A. No. 9048/2012 was filed before the Apex Court seeking extension of time for grant of affiliation, it was disposed of by the Apex Court as per order dated 21.08.2020 finding that the AICTE has issued a fresh calender. Since all the appeals and the issues raised are similar in nature, if not typical, all writ appeals would stand allowed accordingly. The order of the learned single Judge, setting aside the order of the state Government and consequential directions issued to the University would remain intact, especially due to the fact that neither the State nor the University have preferred appeals against the orders and directions so issued by the learned single Judge. Be that as it may, when the appeals came up for -8- W.P.(C). No. 18270 of 2020 admission, we have noticed that most of the appellants were granted with interim orders for provisional affiliation by the learned single Judge during the pendency of the writ petitions, and thereupon, we have granted interim orders, in such appeals, directing the University that the provisional affiliation granted by the University to the colleges pursuant the interim orders of the learned single Judge shall continue to be in force, as per an order dated 14.08.2020 and by typical subsequent orders. The said orders would continue to be in force for all practical, admission and academic purposes till a decision is taken by the University as directed above.” 5. The learned Standing Counsel for the 1[st] respondent University would submit that the Vice-Chancellor shall reconsider the request made by the petitioner for affiliation to MBA course with an annual intake of 120, for the academic year 2020-21, in terms of Ext.P7 approval granted by AICTE, taking note of the law laid down by the Division Bench in **Jai Bharath College of Management and Engineering Technology v. State of Kerala and others** , in exercise of his powers under sub-section (6) of Section 14 of APJ Abdul Kalam Technological University Act, 2015. -9- ## W.P.(C). No. 18270 of 2020 In such circumstances, this writ petition is disposed of by directing the Vice-Chancellor of the 1[st] respondent University to reconsider the request made by the petitioner for affiliation to MBA course with an annual intake of 120, for the academic year 2020-21, in terms of Ext.P7 approval granted by AICTE, in exercise of his powers under sub-section (6) of Section 14 of APJ Abdul Kalam Technological University Act, 2015, taking note of the law laid down by the Division Bench in the decision referred to supra, as expeditiously as possible, at any rate on or before 15.09.2020. Sd/- **ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 18270 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER OF APPROVAL DATED 07/04/2015 FOR THE YEAR 20152016.** - **EXHIBIT P2 TRUE COPY OF THE LETTER OF APPROVAL DATED 11/05/2016 FOR THE YEAR 20162017.** - **EXHIBIT P3 TRUE COPY OF THE LETTER OF APPROVAL DATED 10/04/2017 FOR THE YEAR 20172018.** - **EXHIBIT P4 TRUE COPY OF THE LETTER OF APPROVAL DATED 10/04/2018 FOR THE YEAR5 20182019.** - **EXHIBIT P5 TRUE COPY OF THE LETTER OF APPROVAL DATED 30/04/2019 FOR THE YEAR 20192020.** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE APPROVAL PROCESS HANDBOOK 2020-21 OF THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE EXTENSION APPROVAL DATED 15/06/2020 FOR THE YEAR 20202021.** - **EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE AFFILIATION APPLICATION REPORT DATED 25/06/2020.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO. KTU/A/456/2015 DATED 14/08/2020 OF THE 1ST RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE REVISED ACADEMIC CALENDER ISSUED BY THE AICTE.**