Nirmala Educational Trust v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **WP(C).No.13009 OF 2020(A)** ## **PETITIONER:** ## **NIRMALA EDUCATIONAL TRUST,** **REP. BY ITS CHAIRMAN, KUNNAPILLY P.O MELOOR, THRISSUR DISTRICT 680 311.** **BY ADVS. SRI.S.KRISHNAMOORTHY SMT.NITHYA SUGUNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DIRECTOR OF TECHNICAL EDUCATION, PADMA VILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM 695 023.** - **3 STATE BOARD OF TECHNICAL EDUCTION , REP. BY ITS SECRETARY FORT P.O. THIRUVANANTHAPURAM 695 023.** - **4 STATE INSTITUTE OF TECHNICAL TEACHERS TRAINING AND RESEARCH (SITTTR) REP JOINT DIRECTOR, DEPARTMENT OF TECHNICAL EDUCATION, GOVERNMENT OF KERALA, HMT JUNCTION, KALAMASSERY P.O. ERNAKULAM 683 104.** - **5 ALL INDIA COUNCIL FOR TECHNICAL EDCUATION, REPRESENTED BY MEMBER SECRETARY, NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI 110 033.** - **R1 TO 4 BY SRI.M.A.ASIF, SPL.GOVT.PLEADER R5 BY ADV. SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - AICTE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13009 OF 2020(A)** **2** ## **JUDGMENT** The petitioner, who is running a Polytechnic by name Nirmala Institute of Technology, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to grant necessary approval/affiliation to the Diploma Courses approved by All India Council for Technical Education (AICTE) as per Ext.P5 approval order dated 30.04.2020 issued by the 5[th] respondent AICTE; a writ of mandamus commanding respondents 2 to 4 to conduct inspection in their institution and to satisfy all infrastructure facilities to grant provisional affiliation for the new Diploma Courses, namely, Automobile Engineering; and Electrical and Electronics Engineering for the current academic year 2020-21 itself; a writ of mandamus commanding respondents 2 and 4 to include the petitioner's institution in the centralized process of allotment in the prospectus for admission to the polytechnic in all five Diploma Courses approved by AICTE in Ext.P5 approval order and to allow the petitioner institution to admit the students for those **WP(C).No.13009 OF 2020(A)** **3** Diploma Courses for the current academic year itself; and a declaration that the 2[nd] respondent is bound to issue necessary affiliation for conducting Diploma Courses in the petitioner's institution, as approved by the 5[th] respondent in Ext.P5. 2. On 02.07.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 4 and the learned Standing Counsel took notice for the 5[th] respondent. This Court has granted an interim direction to respondents 2 and 3 to take up the application for extension of approval of the existing courses as well as for approval of new courses, as approved by the AICTE in Ext.P5, within a period of one week from the date of receipt of a copy of that order. It was also ordered that the professed Government Policy decision not to grant approval shall not be taken as a ground for rejection of the approval. In case there is any defect in the application, the petitioner shall be informed immediately and given an opportunity to rectify the same and to remit the fees. **WP(C).No.13009 OF 2020(A)** **4** 3. The aforesaid interim order was followed by another interim order dated 15.07.2020, which reads thus; “The petitioners-Educational Institutions had applied for approval of AICTE, to start certain new Diploma Courses. The AICTE granted approval. The petitioners thereupon approached respondents 1 to 4 for Affiliation of the said new courses by the Director of Technical Education/State Board of Technical Education. When the writ petitions were filed, the last date for getting Affiliation as per the academic calendar of the AICTE was 15.07.2020. As the requisite affiliation was not forthcoming, the petitioners filed afore writ petitions. 2. This Court passed interim orders on 02.07.2020 directing respondents 1 to 4 to take up the applications of the petitioners within a period of one week. This Court directed that the professed Government policy decision not to grant approval, shall not be taken as a ground for rejection. This Court further directed that in case there is any defect in the application, the petitioners shall be informed immediately and given an opportunity to rectify the same and remit the fees. 3. In spite of the directions, the respondents have neither pointed out any defect to the petitioners nor have granted affiliation. The writ **WP(C).No.13009 OF 2020(A)** **5** petitions were filed since the scheduled date 15.07.2020 was fast forthcoming. In the meanwhile, by order dated 22.05.2020 in C.A. No.9048/2012, the Hon'ble Apex Court permitted the AICTE to revise draft calendar, according to which the last date for grant of affiliation by the University/Board now stands extended to 15.08.2020. 4. The petitioners contend that in spite of the directions of this Court on 02.07.2020, the respondents have not moved the files and are sitting on it with an intention to defeat the cause of the petitioners. Therefore, the respondents are compellable to issue provisional affiliation to them forthwith. Only after getting provisional affiliation, the petitioners can cause necessary publicity to the proposed new Diploma Courses, before the admission process starts. 5. Opposing the prayer for grant of provisional affiliation, the learned Government Pleader stated that the admission process has not started and the deadline for grant of affiliation by the University is 15[th] August, 2020. Learned Government Pleader submitted that respondents could not pass orders as directed by this Court due to the prevailing pandemic situation, but asserted that the respondents will be able to conduct inspection of the Colleges by **WP(C).No.13009 OF 2020(A)** **6** 31.07.2020 and take a decision in the matter thereafter. 6. The learned Government Pleader relied on the judgment of the Apex Court in Medical Council of India v. N.C. Medical College and Hospital and others to urge that this Court should not pass such interim orders in the matter of admission. Relying on the judgment of the Apex Court in _**Jawaharlal Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet and others** [2018 (14) SCALE 575]_ , it was argued that the respondents are competent to identify the educational needs of the locality before granting affiliation. 7. It is discernible from the pleadings that this Court had passed interim orders directing to consider the applications of the petitioners and pass orders within one week, when the deadline was 15.07.2020. In spite of the direction, the respondents have neither acted on the interim orders, nor did challenge the interim orders of this Court. In the case of the petitioners, the AICTE has already processed the application for approval as per the norms and procedures specified in the Approval Process Handbook as notified by the Council, in addition to the existing Central, State and Local laws. The AICTE has granted the approval only after **WP(C).No.13009 OF 2020(A)** **7** confirming that the petitioners had fulfilled all the norms and standards following the prescribed procedure. 8. In _**Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram** [(2000) 5 SCC 231]_ , the Apex Court held as follows:- “No doubt the question of affiliation was a different matter and was not covered by the Central Act but in _T.N. case_ it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the ” Central Act. (Emphasis supplied) The judgment in Medical Council of India v. N.C. Medical College and Hospital and others relied on by the Government Pleader related to grant of Letter of Permission in respect of a Medical College and the issue was relating to establishment of a new Medical College. The petitioners are existing approved institutions. The judgment in _**Jawaharlal Nehru Technological University Registrar** (supra)_ was based on Section 20 of the Telangana Education Act, 1982 as per which obtaining NOC was mandatory. Such a statutory provision in **WP(C).No.13009 OF 2020(A)** **8** support of the contentions of respondents 1 to 4, was not brought to my notice. 9. Furthermore, this Court in identical circumstances passed interim order on 29.06.2020 in WP(C) No.12514/2020 directing the respondents to accept the application fees and to grant provisional affiliation for Diploma Courses of the petitioner-institution therein. 10. In view of all the above, there will be an interim order in these writ petitions also directing respondents 1 to 4 to accept the application fees and grant provisional affiliation for Diploma Courses of the petitioners, for which approval is granted by the AICTE. There will be a further direction to the respondents to include the name of the petitioner-institutions in the Centralised Allotment Process for the said Diploma Courses. This order will be provisional and subject to further orders in these writ petitions. It is made clear that the respondents will be at liberty to make inspections, if any, in the meanwhile, and to bring defects/deficiencies, if any, to the notice of the AICTE.” 4. Heard the learned counsel for the petitioner, the learned Special Government Pleader appearing for respondents 1 to 4 and also the learned Standing Counsel for the 5[th] respondent. **WP(C).No.13009 OF 2020(A)** **9** 5. The learned Special Government Pleader, on instructions, would submit that pursuant to the interim order of this Court dated 15.07.2020, the 3[rd] respondent has already granted affiliation to Diploma Courses in Automobile Engineering and Electrical and Electronics Engineering on the strength of Ext.P5 approval granted by the AICTE. 6. The learned counsel for the petitioner would submit that recording the aforesaid submission, this writ petition may be disposed of. In such circumstances, this writ petition is disposed of recording the fact that pursuant to the interim order of this Court dated 15.07.2020, the 3[rd] respondent has already granted affiliation for the Diploma Courses in Automobile Engineering and Electrical and Electronics Engineering on the strength of Ext.P5 approval granted by the AICTE. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/14/9 **WP(C).No.13009 OF 2020(A)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 8.2.2019.** **EXHIBIT P2 TRUE COPY OF THE EXTENSION OF APPROVAL FOR THE YEAR 2019-20 DATED 30.4.2019 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE CIRCULAR DATED 10.02.2020 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 4.3.2020 GIVEN BY THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE APPROVAL ORDER DATED 30.4.2020 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 22.6.2020 GIVEN TO 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF REQUEST DATED 22.6.2020 GIVEN TO 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 22.6.2020 GIVEN TO THE 4TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WA NO. 1239/2017 DATED 22.8.2017 OF THIS HONBLE COURT.**