Nirmala Educational Trust Chalakudy v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938** **WP(C).No. 27153 of 2016 (T)** **----------------------------** **PETITIONER(S): -------------** **NIRMALA EDUCATIONAL TRUST CHALAKUDY, THRISSUR-680307, REPRESENTED BY ITS CHAIRMAN, SRI. SAJEEV VATTOLY** **BY ADVS.SRI.S.RAMESH SRI.NAVEEN.T** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA** **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY CET CAMPUS, MBA BLOCK, THIRUVANANTHAPURAM-695016, REPRESENTED BY ITS REGISTRAR** **3. THE DIRECTOR OF TECHNICAL EDUCTION DIRECTORATE OF TECHNICAL EDUCATION, FORT PO THIRUVANANTHAPURAM-695023** ***Addl. 4. THE ALL INDIA INSTITUTE OF TECHNICAL EDUCATION, REPRESENTED BY ITS MEMBER SECRETARY, 7TH FLOOR, CHANDRALOK BUILDING, JANPATH, NEW DELHI-110001.** - **(*ADDL.R4 IS IMPLEADED AS PER ORDER DATED 9/12/16 IN IA NO.20138/16)** **R1 & 3 BY ADDL.AG MR.K.K.RAVINDRANATH R2 & ADDL.R4 BY ADV. SRI.S.KRISHNAMOORTHY, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1712-2016, THE COURT ON 08-03-2017 DELIVERED THE FOLLOWING:** ## **WP(C).No. 27153 of 2016 (T)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT:P1 TRUE COPY OF THE CERTIFICATE DT. 14/3/16 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** **EXHIBIT:P2 TRUE COPY OF THE RECEIPT DT. 14/3/16 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT:P3 TRUE COPY OF THE ORDER DT. 30/4/16, LETTER OF APPROVAL, ISSUED BY THE AICTE TO THE PETITIONER** **EXHIBIT:P4 TRUE COPY OF THE NOTIFICATION DT. 28/3/16 ISSUED BY THE 2ND RESPONDENT UNIVERSITY** **EXHIBIT:P5 TRUE COPY OF THE RECEIPT FOR AFFILIATION FEE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT:P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE DT. 23/5/16 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT:P7 TRUE COPY OF THE INTERIM ORDER DATED 9.8.2016 IN WP (C) No. 25890/2016 OF THIS HON'BLE COURT.** **EXHIBIT:P8 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT REPORTED IN 2015 (11) SCC 291.** **ADDL.4TH RESPONDENT'S EXHIBITS** **------------------------------** **ANNEXURE R4(a): RELEVANT PORTION OF APPROVAL PROCESS HAND BOOK FOR THE ACADEMIC YEAR 2016-17.** **Rp** ## **//TRUE COPY//** **PS TO JUDGE** ## **A.M. SHAFFIQUE, J.** ## =============== W.P. (C) No. 27153 of 2016 ================== Dated this, the 8[th] day of March, 2017 ## **J U D G M E N T** This writ petition has been filed seeking the following reliefs:- _“(i) issue a writ of mandamus or any other appropriate writ, direction or order directing the 2[nd] respondent to grant affiliation to the Nirmala College of Management Studies within a time frame fixed by this Honourable Court._ _(ii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the law laid down by this Honourable Court in several decisions should be strictly followed once the AICTE has granted approval and the Examining Bodies cannot refuse affiliation imposing the same conditions which is within the jurisdiction of the AICTE._ _(iii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 3 to take a decision on the basis of the formal inspections conducted by them for granting permission to start the Nirmala College of Management Studies within a time frame fixed by this Honourable Court.”_ WP(C) No. 27153/16 -:2:- 2. The short facts involved in the writ petition would disclose that the petitioner intended to start a new MBA College for which purpose, the petitioner submitted online application before the All India Council for Technical Education (AICTE). Ext.A1 certificate had been issued by the Director of Technical Education confirming having received a copy of the online application. The receipt of the application had been confirmed by the University, the 2[nd] respondent herein. The AICTE after conducting necessary inspection granted Ext.P3 letter of approval dated 30/4/2016. The petitioner thereafter remitted the necessary affiliation fee and the payment was effected as evident from Ext.P5. It is submitted that the 2[nd] respondent has issued no objection certificate stating that the affiliation from the University for starting the course was considered only after following rules and regulations. The no objection dated 23/5/2015 has been produced as Ext.P6. It is stated that the 3[rd] respondent conducted another inspection on 24/5/2016 and thereafter on 7/7/2016. According to the petitioner, thereafter no action was taken in the matter. It is submitted that all necessary preparation has been done for starting the college during the year 2016-17 and all WP(C) No. 27153/16 -:3:- necessary inspections as prescribed by the AICTE has been granted. Petitioner had also invested huge amounts for the infrastructural and instrumental facilities for starting the college during the academic year 2016-17. Learned counsel for the petitioner submits that though it may not be possible to start the courses during the current academic year, petitioner's application ought to be considered for the next academic year as well without imposing on the petitioner any additional fee in that regard. The State Government has filed a memo adopting the counter affidavit filed in WP(C) No. 27463/16. In the said case, it is stated that the Government had framed a policy not to permit any new unaided colleges in the State in the Self Financing Sector. In fact, the said Government Order had been quashed by this Court in WP (C) No.24872/2016 and connected cases observing that there cannot be any policy which prevents starting of new colleges/institutions and each application has to be decided on a case to case basis. 3. The University has filed a statement through the counsel wherein it is stated that though the AICTE approval was received, the petitioner made a request belatedly for granting WP(C) No. 27153/16 -:4:- affiliation. It is stated that for all other courses, affiliation was given as early as on 14/5/2016 except for MBA since the no objection certificate is obtained only on 23/5/2016. It is stated that the fee collected as per Ext.P4 is only for affiliation of those courses mentioned therein. Reference is also made to the judgment of the Apex Court in _**Parshvanath Charitable Trust v. AICTE**_ [(2013) 3 SCC 385] by stating that when the last date fixed for granting affiliation is over by 15/5/2015, University cannot take a different stand in the matter. 4. A reply affidavit has been filed by the petitioner _inter alia_ stating that in so far as AICTE approval is granted for a period of two years as evident from Ext.P3, the approval was granted only on 30/4/2016. Inspections were conducted by the 3[rd] respondent only on 24/5/2016 and 7/7/2016. It is submitted that the last date fixed as per Ext.P4 was on 15/4/2016 and the approval Ext.P3 from AICTE was received only on 30/4/2016. It is further indicated that since the approval from AICTE is obtained only on 30/4/2016, and there is no fresh notification fixing any time limit by the 2[nd] respondent, the petitioner had to pay the necessary fee as per Ext.P5 only on 27/5/2016. It is contended WP(C) No. 27153/16 -:5:- that after paying the necessary fee, inspections were conducted by the 3[rd] respondent and no report has been submitted by the 3[rd] respondent. Hence the University issued Ext.P6 stating that no objection certificate is granted subject to rules and regulations. It is contended that once approval has been granted by AICTE, there was no reason by which further inspection is to be conducted by other authorities. 5. A statement has been filed by the additional 4[th] respondent in which it is stated that in Ext.P3 it is clear that the letter of approval for the Institute is for the year 2016-17. The approval is valid for two years from the date of issue of the letter for getting affiliation with the respective University/Board of Technical Education and Board of Technical Education and Training as applicable and fulfilling the State Government requirement for admission. If the institution is unable to start in the academic year 2016-17, the institution will have to apply online on in th next academic session for continuation of approval. It is also stated that the institution can also apply for online after remitting the necessary fee for extension of approval and without getting such approval, no technical institute can WP(C) No. 27153/16 ## -:6:- function for the next academic session. Reference is also made to Ext.R4(a) Approval Process Hand Book for the academic year 2016-17 in support of the above contention. To the statement filed by the 4[th] respondent, a reply affidavit has been filed where the petitioner again contends that it was not on account on any fault on the part of the petitioner that they could not start the course during the present academic year and there is no basis for the contention that the petitioner has to obtain further extension for approval of affiliation. 6. The learned counsel for the petitioner submits that on account of the delay on the part of the respondents, petitioner was unable to start the course for the present academic year and therefore, direction should be issued to permit the petitioner to start the course during the next academic year without insisting for any further fee in that regard. In fact, while granting approval by the AICTE, as per order dated 30/4/2016, (Ext.P3), in the note it is stated that the approval is valid for two years from the date of issue of the letter for getting affiliation with respect to University/Board of Technical Education etc, and fulfilling State Government requirements for admission. It is further stated that if WP(C) No. 27153/16 -:7:- the Institution is unable to start in that academic session 2016-17, the Institution will have to apply on-line on AICTE web portal in the next academic session for continuation of approval. It is therefore rather clear that though the approval is for a period of two years from the date of issue, if the Institution was unable to start the academic session during the academic year 2016-17, on account of the fact that the affiliation of the University is not obtained, or they could not fulfill State Government requirements for admission, they have to apply on-line in the AICTE web portal in the next academic session also. Therefore, continuation of approval is required since the petitioner was unable to start the course during 2016-17. 7. Petitioner has a case that it was on account of the delay on the part of the respective authorities that they could not start the course during the academic year 2016-17. But the fact remains that when AICTE had clearly indicated in their letter of approval that the courses are permitted to be conducted for the academic year 2016-17, necessarily, a continuation of approval is required. But, learned counsel for the petitioner submits that again the petitioner will have to pay the requisite fee. Fee is a WP(C) No. 27153/16 -:8:- matter which is required to be paid as per the Regulations or the procedure prescribed by AICTE. Merely for the reason that there had been delay on the part of the authorities in not granting affiliation/permission within the time specified for conduct of courses, it does not indicate that the procedure can be departed with nor can this Court direct that the fee to be paid should be waived. Under such circumstances, I do not think that the petitioner is entitled for any relief in so far as the petitioner will have to apply for continuation of the approval as per the procedure prescribed. As far as the reliefs prayed for are concerned, on account of the fact that the approval has already been granted by the competent authorities, nothing further survives to be issued in the matter. With the above observation, writ petition is closed. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp //TRUE COPY// PS TO JUDGE