Nehru College of Engineering & Research Centre, Pampady, Thiruvilwamala, Thrissur v. State of Kerala, Calicut University, Director of Technical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932** **WP(C).No. 29511 of 2010(L)** **--------------------------------------** **PETITIONER:** **-------------------** **NEHRU COLLEGE OF ENGINEERING & RESEARCH CENTRE, PAMPADY, THIRUVILWAMALA, THRISSUR, REPRESENTED BY ITS SECRETARY-CUM-MANAGER.** **BY ADV. SRI.GEORGE JACOB (JOSE).** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE CALICUT UNIVERSITY, THENHIPALAM, MALAPPURAM DISTRICT, REPRESENTED BY ITS REGISTRAR.** **3. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.** **R1 & R3 BY GOVT. PLEADER SRI. T.K. ARAVINDKUMAR BABU, R2 BY ADV. SRI.P.C.SASIDHARAN, S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON 23/12/2010, DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.29511/2010-:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE JUDGMENT DTD. 06/10/2006 IN W.P.(C).NO.26075/2006.** **EXT.P.2: COPY OF THE INTERIM ORDER DTD. 08/10/2007 IN W.P.(C).25550/2007 OF THIS HON'BLE COURT.** **EXT.P.3: COPY OF THE INTERIM ORDER DTD. 03/09/2008 IN W.P.(C).23437/2008 OF THIS HON'BLE COURT.** ## **EXT.P.4: COPY OF THE INTERIM ORDER IN W.P.(C).NO.20780/2010 OF THIS HON'BLE COURT.** ## **EXT.P.5: COPY OF THE LETTER DTD. 10/04/2009 TO R2 UNIVERSITY SENT BY THE PETITIONER.** **EXT.P.6: COPY OF THE LETTER DTD. 26/06/2009 OF THE PETITIONER TO R2.** **EXT.P.7: COPY OF THE LETTER DTD. 24/06/2009 OF THE PETITIONER TO THE R.2.** **EXT.P.8: COPY OF THE LETTER DTD. 29/09/2009 OF THE PETITIONER TO R3.** **EXT.P.9: COPY OF THE APPLICATION DTD. 15/12/2009 OF THE PETITIONER ADDRESSED TO R.2.** **EXT.P.10: COPY OF THE LETTER DTD. 09/03/2010 OF THE PETITIONER ADDRESSED TO THE R.3.** ## **EXT.P.11: COPY OF THE COMMUNICATION DTD. 29/04/2010 OF R.2. INTIMATING ITS NO OBJECTION FOR GRANTING PROVISIONAL AFFILIATION TO M-TECH COURSES.** **EXT.P.12: COPY OF THE LETTER DTD. 29/04/2010 OF THE PETITIONER ADDRESSED TO R3. REQUESTING FOR THE ISSUE OF N.O.C.** **EXT.P.13: COPY OF THE LETTER DTD. 30/04/2010 THE PETITIONER TO R.2. REQUESTING FOR ISSUE OF NO OBJECTION CERTIFICATE FOR THE ADDITIONAL TWO COURSES.** **EXT.P.14: COPY OF THE G.O. DTD. 07/06/2010 GRANTING N O C TO THE COLLEGE TO CONDUCT TWO M-TECH COURSES.** ## **EXT.P.15: COPY OF THE LETTER DTD. 28/07/2010 OF THE PETITIONER TO THE HON'BLE MINISTER FOR EDUCATION.** ## **EXT.P.16: COPY OF THE LETTER DTD. 29/07/2010 ADDRESSED TO THE R.2, BY THE PETITIONER.** **EXT.P.17: COPY OF THE MEMO DTD. 11/06/2010 OF R.2. RECOMMENDING THE APPLICATION FOR THE PETITIONER.** ## **W.P.(C). NO.29511/2010-L:** ## **EXT.P.18: COPY OF THE COMMUNICATION DTD. 23/08/2010 RECEIVED BY THE PETITIONER FROM THE COUNCIL.** ## **EXT.P.19: COPY OF THE LETTER DTD. 16/08/2010 FROM R.2. TO THE PETITIONER.** **EXT.P.20: COPY OF THE LETTER DTD. 08/09/2010 OF THE PETITIONER TO R.2.** ## **EXT.P.21: COPY OF THE TEMPLATE OF REPORT SUBMITTED TO THE COUNCIL.** **EXT.P.22: COPY OF THE ORDER DTD. 24/06/2009 OF R.1. DIRECTING R.2. THAT AFFILIATION BE GRANTED ONLY TO EXISTING COURSES AND ADDITIONAL COURSES ONLY AFTER NOC OF THE GOVERNMENT.** ## **EXT.P.23: COPY OF THE ORDER DTD. 17/11/2009 ISSUED BY R.1.** **EXT.P.24: COPY OF THE DRAFT OF THE AGREEMENT, AFFIDAVIT & AGREEMENT SIGNED BY THE PETITIONER ON 27/10/2010.** **EXT.P.25: COPY OF THE RELEVANT EXTRACT ORF THE WEBSITE PUBLICATION OF THE A I C T E DTD. NIL. GRANTING APPROVAL TO THE 2 ADDITIONAL M-TECH COURSES.** **EXT.P.26: COPY OF THE ORDER DTD. 05/10/2010 OF THE UNIVERSITY EXTENDING THE AFFILIATION OF THE COURSES IN THE COLLEGE.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 29511 OF 2010** ## **=====================** ## **Dated this the 23[rd] day of December, 2010** ## **J U D G M E N T** The prayers sought in this writ petition are to quash Exts.P22 and P23 orders of the 1[st] respondent and to direct the 2[nd] respondent University to grant affiliation to the M.Tech Courses so as to enable the petitioner to start the courses from the academic year 2010-11. Petitioner also seeks a declaration that the no objection certificate of the State Government is not a pre requisite for the University to grant affiliation for starting the M.Tech Courses sanctioned by the AICTE. 2. Petitioner is a charitable trust with its registered office at Coimbatore. The trust has established colleges in the States of Kerala and Tamilnadu. Among the colleges that the trust has established in Kerala State, in so far as this writ petition is concerned, the issue concern the Nehru College of Engineering and Research Centre, Pampady in Thiruvilwamala, Trichur District. Based on the approval accorded by the AICTE for conducting B.Tech Courses in four disciplines followed by the provisional affiliation granted by the 2[nd] respondent University, this College **WPC No.29511/10** ## **:2 :** started functioning in the academic year 2002-03. Over a period of time, the number of disciplines increased and the petitioner also obtained approval of AICTE and affiliation of the University and also started MBA and MCA courses as well. 3. In this writ petition, the issue raised by the petitioner concerns the refusal of the University in granting affiliation to four M.Tech Courses in (1) Applied Electronics and Communication System (2) Power Electronics and Drives (3) Computer Science and (4) VLS I Design. 4. In so far as M.Tech Courses in Computer Science and VLS I Design are concerned, petitioner sought NOC/sanction from the Government of Kerala for the aforesaid courses by submitting Ext.P10 application. Petitioner also submitted Ext.P13 request to the University stating that they have already submitted application for affiliation and requesting to issue its no objection certificate for commencing the courses after obtaining approval of the AICTE and Government of Kerala for which it had already made its applications. There was no response either from the Government of Kerala or from the University, and therefore, petitioner repeated its requests to Government of Kerala by **WPC No.29511/10** ## **:3 :** submitting Ext.P15 and to the University by submitting Ext.P16. While so, the AICTE issued Ext.P18 order dated 23/8/2010 conveying its approval for the conduct of the courses mentioned therein with the intake of 18 each, indicated in the order, for the academic year 2010-11. This order includes approval for Post Graduate Courses in Computer Science and VLS I Design also, and the intake specified is 18 each. Immediately on the issuance of Ext.P18 order, petitioner submitted Ext.P20 letter to the University enclosing a copy of Ext.P18 and requesting the University to issue order of affiliation immediately for commencing the classes. The University did not respond to these requests. 5. As far as the M.Tech Courses in Power Electronics and Drives and Applied Electronics and Communication System are concerned, which according to the petitioner had been sanctioned as early as on 24/6/09, Ext.P18 order of the AICTE referred to above includes sanction for commencing these courses as well. 6. As far as affiliation of the University for these courses is concerned, Ext.P9 application made by the petitioner includes a request for affiliation of these courses also for the academic year **WPC No.29511/10** **:4 :** 2010-11. Subsequently, based on a report of the Enquiry Committee, the University issued Ext.P11 dated 29/4/2010 stating that it has no objection for granting provisional affiliation to the aforesaid courses during the academic year 2010-11 and 2011-12 with the minimum intake of students subject to the approval of the Government of Kerala and the AICTE. Petitioner also says that thereafter Government of Kerala issued Ext.P14 GO(Rt) No.1099/10/H.Edn. Dated 7/6/2010 according sanction for starting the aforesaid two courses with an intake of 18 each for the academic year 2010-11 subject to the conditions mentioned therein. 7. According to the petitioner, despite all the above, to its repeated requests, University finally responded by issuing Ext.P17 dated 11/6/2010 informing that the University has recommended the application of the petitioner for starting the aforesaid courses and forwarded recommendations to the 1[st] respondent with copies to the 3[rd] respondent for concurrence from the Government. According to the petitioner, in pursuance to the conditions imposed by the Government in Ext.P14, the petitioner also executed Ext.P24 seat sharing agreement with the **WPC No.29511/10** **:5 :** Government on 27/10/2010. It is stated that inspite of the above, affiliation is not granted. According to the petitioner, the only reason for refusal of the University to grant affiliation is Ext.P22 order issued by the 1[st] respondent directing that affiliation shall be granted by the Universities only after NOC was granted by the State Government. Petitioner further states that, again the 1[st] respondent issued Ext.P23 order reiterating what has been stated in Ext.P22. It is in the aforesaid factual background, this writ petition has been filed seeking the reliefs mentioned above. 8. University has filed its counter affidavit. It is admitted that the petitioner sought additional affiliation for M.Tech Courses. It is stated that an Inspection Committee conducted inspection and that the recommendations of the Committee were forwarded to the Higher Education Department, Government of Kerala for concurrence with copy to the 3[rd] respondent and the Director of Collegiate Education. It is stated that the petitioner has not yet produced NOC from the Government and that NOC from the Government and the AICTE are necessary for granting affiliation. It is stated that since NOC was not produced, the application for affiliation was not processed further. It is again stated that the **WPC No.29511/10** ## **:6 :** recommendation of the Inspection Commission for additional affiliation to M.Tech Courses in Applied Electronics and Communication Systems and Power Electronics and Drives was forwarded to the Government for concurrence and that concurrence is yet to be obtained and it is the duty of the petitioner to get concurrence before granting affiliation. It is also stated that in relation to M.Tech Course in Computer Science and VLS I Design, the letter of approval of the AICTE has not been received by the University and the University accuses the petitioner that it has not even produced the same along with this writ petition. It is reiterated that, only on getting approval from the AICTE and the NOC from the State Government and on production of these orders, the University will consider the petitioner's application seeking affiliation and that too following the statutory formalities, since according to the University, affiliation is not an empty formality. 9. A reply affidavit has been filed by the petitioner. It is stated that the M.Tech Programmes in Applied Electronics and Communication System and Power Electronics and Drives were sanctioned by the AICTE and published in its web site and that it **WPC No.29511/10** **:7 :** was thereupon that Ext.P7 letter along with chellans enclosing remittance of requisite fee has been submitted to the University. Petitioner further states that University thereupon issued Ext.P11 NOC and the Government issued Ext.P14 NOC. 10. In so far as the courses in Computer Science and VLS I Design are concerned, the petitioner had addressed Ext.P13 letter to the University requesting for the issue of NOC, after remitting the requisite fees. It was in the meanwhile that Ext.P24 agreement was executed. After Ext.P24 agreement, the Government have agreed to issue NOC subject to production of consent letter from the University and that the University on the one side has agreed to grant provisional affiliation subject to the Government issuing NOC. Therefore, according to the petitioner, neither of them had issued either the NOC or the consent till date. 11. In so far as the alleged non production of the letter of approval of the ACITE is concerned, petitioner reiterates that Ext.P18 is a copy of the letter issued by the AICTE which has been produced by it. Petitioner has also produced Ext.P25, extract of the letter of the AICTE granting approval to the two M.Tech Courses to the College, which was published in its web site. **WPC No.29511/10** ## **:8 :** Petitioner has also produced Ext.P26 order issued by the University according its continuation of affiliation for the courses mentioned therein. Ext.P18 is the order issued by the AICTE granting approval for the courses mentioned in Ext.P26. Therefore, according to the petitioner, the University itself accepted Ext.P18 as a letter of approval issued by the AICTE and on this basis, it is contended that there is no substance in the objection now raised. 12. Thus for granting affiliation for the aforesaid four M.Tech Courses, the objection raised by the University is mainly that as far as M.Tech in Applied Electronics and Communication System and Power Electronics and Drives are concerned, the recommendation of the Inspection Commission has been forwarded to the Government and the Government is yet to issue its concurrence. 13. In so far as the affiliation for M.Tech in Computer Science and VLS I Design is concerned, the objection is that the petitioner has not produced the letter of approval of the AICTE. It is the correctness of these two objections raised by the University, which needs to be considered in this writ petition. **WPC No.29511/10** **:9 :** 14. As far as the first issue whether the concurrence or NOC of the State is a mandatory condition is concerned, in my view, this issue has already been answered by the Apex Court in ## _**Jaya Gokul Educational Trust v. Commissioner & Secretary**_ _**to Government**_ {2000(2) KLT 267 (SC)}, where in para 23, it has been held thus: Thus we hold, in the present case that there was no statutory requirement for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act. The University statute 9(7) merely required that the 'views' of the State Government be obtained before granting affiliation and this did not amount to obtaining 'approval'. If the University statute required 'approval', it would have been repugnant to the AICTE Act. Point I is decided accordingly. This judgment has been followed by the Apex Court in _**State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya**_ {(2006) 9 SCC 1} and a Full Bench of this Court in _**Vikram Sarabhai E. Trust & B.Ed. College v. University of Calicut**_ (2008(2) KLT 1027). 15. Therefore, all that is required is that the University should ascertain the views of the Government and if views of the Government is not forthcoming, the University is not under any obligation to obtain NOC or concurrence of the State Government **WPC No.29511/10** **:10 :** for granting affiliation to an Educational Institution, which has obtained the approval of the AICTE. Therefore, the first objection raised by the University cannot be sustained. 16. Thus, what remains is whether the petitioner has produced the letter of approval of AICTE. As can be seen from Ext.P18, that is an order issued by the AICTE granting its approval for the courses, the affiliation of which is sought for by the petitioner. Petitioner's specific case is that this is the only order issued by the AICTE. In fact, I am inclined to agree with the submission made by the petitioner. This Court has come across several cases involving issue of affiliation of Post Graduate Engineering courses, in all such cases, letters of approval issued by the AICTE, which have been noticed are similar to Ext.P18 and unfortunately, this is the only case where the University has taken a technical objection that Ext.P18 does not amount to an order of approval. At the same time, I would also hold that if the University had any doubt whether this order cannot be treated as a letter of approval, nothing prevented the University from seeking a clarification from the AICTE. Not only that, the University has not even sought a clarification from the petitioner even. On the other **WPC No.29511/10** **:11 :** hand, after receiving this order from the petitioner, University refused to proceed further, assuming to itself that Ext.P18 cannot be treated as an order of the AICTE. Further, the University itself has chosen to rely on Ext.P18, to issue Ext.P26 order of continuing affiliation to the petitioner and therefore, this itself shows there is inconsistency in the case of the University. This was a very irresponsible conduct of the University, and therefore, the stand of the University cannot be upheld and I reject the contention of the standing counsel for the university that with Ext.P18 order, no Court can compell the University to grant affiliation to the petitioner. 17. Therefore, in my view, Ext.P18 should be accepted as an order of affiliation and the University should have granted affiliation to the petitioner. This is all the more so for the reason that the University has no case that there is any infrastructural or instrumental inadequacy on the part of the petitioner. In such circumstances, petitioner is entitled to succeed in this writ petition. 18. True, there is a challenge against Exts.P22 and P23 orders issued by the 1[st] respondent and the 1[st] respondent also **:12 :** ## **WPC No.29511/10** has not chosen to file a counter affidavit justifying its order. In my view, so long as the Apex Court judgments referred to above hold the field, 1[st] respondent Government is bound by the law declared by the Supreme Court. In the teeth of the laws so declared, which binds everyone in this country, this contention can only fall to ground, and therefore, these orders are absolutely unenforcible. Therefore, I dispose of this writ petition directing the 2[nd] respondent University to grant affiliation to the petitioner for the Post Graduate Courses for M.Tech Courses in (1) Applied Electronics and Communication System (2) Power Electronics and Drives (3) Computer Science and (4) VLS I Design as applied for by them. Orders in this behalf shall be issued without insisting on any NOC or concurrence by the State Government at any rate within 4 weeks of production of a copy of this judgment. ## **ANTONY DOMINIC, JUDGE** Rp