Secretary - K. Velayudhan Memorial Trust v. State of Kerala & Ors

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH ``` ## **`AGRAHAYANA, 1944`** ## **`WP(C) NO. 35843 OF 2022`** ## **`PETITIONER:`** ``` THE SECRETARY - K. VELAYUDHAN MEMORIAL TRUST P.B. NO. 13, CHERTHALA, ALAPPUZHA, KERALA, INDIA , PIN - 688524 BY ADVS. ASWIN GOPAKUMAR MAHESH CHANDRAN ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF HIGHER EDUCATION - GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2DIRECTOR OF TECHNICAL EDUCATION PADMA VILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM , PIN - 695001 3STATE BOARD OF TECHNICAL EDUCATION REPRESENTED BY ITS SECRETARY, FORT P.O., THIRUVANANTHAPURAM, PIN - 695023 4ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REPRESENTED BY MEMBER SECRETARY, NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI , PIN - 110033 ``` ``` SMT PARVATHY K-GP; SR SAJITHKUMAR .V,SC ``` **W.P (C) No.** **`35843/2022`** **==> picture [20 x 9] intentionally omitted <==** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P (C) No.** **`35843/2022`** ..3.. ## **JUDGMENT** An Educational Agency, said to be running an Engineering College, impugns Ext.P3 – proceedings of the Director of Technical Education (Director), issued to them on 22.09.2022, saying that said Authority cannot grant a No Objection Certificate (NOC) in their favour to start new diploma courses. The petitioner points out that, Ext.P3 proceeds on the basis of Exts.P4 and P5 earlier letters of the Government, in which, it has been stated that a policy decision had been taken by them that “ _NOC cannot be granted to the private self financing institutions, but NOC can be granted to Government Controlled institutions run by CAPE where admission is purely on the basis of merit and to comply the court direction immediately_ ”(sic). They thus pray that Exts.P3, P4 and P5 be set aside, since it goes counter to the various judgments of the Hon’ble Supreme Court and that of this Court. 2. Smt.Nikitha Susan Paulson – learned counsel for the petitioner, relied upon the judgment of a learned Division Bench this Court in _**State of Kerala & Ors v. KMCT Polytechnic College, Mampara**_ [MANU/KE/1255/2017] and **W.P (C) No.** **`35843/2022`** ..4.. that of the Hon’ble Supreme Court in _**Jaya Gokul Educational Trust v. The Commissioner & Secretary to Government Higher Education Department, Thriuvananthapuram,**_ _**Kerala State and Ors.**_ [(2000) 5 SCC 231], to argue that Government cannot take a blanket policy decision not to grant NOC or to refuse to offer their views with respect to applications seeking affiliation, particularly, when the 4[th] respondent - All India Council for Technical Education (AICTE) has already granted approval. She thus prayed that Exts.P3,P4 and P5 be set aside. 3. Smt.Parvathy Kottol – learned Government Pleader, submitted that, as evident from Ext.P5, Government has taken a policy decision that they will not offer NOC to private self financing institutions. She argued that, therefore, the stand of the Director in Ext.P3 cannot be found at fault. 4. Sri.Sajith Kumar – learned counsel appearing for the AICTE, affirmed that his client has already granted approval to the petitioner to start the diploma courses. He added that it is, therefore, for the Government to air their views in this regard; but that it is doubtful whether they can take an omnibus **W.P (C) No.** **`35843/2022`** ..5.. position that they will not offer it as a policy decision. 5. I have considered the afore submissions and have also examined the precedents cited by Smt.Nikitha Susan Paulson. 6. It is indubitable that, in **KMCT Polytechnic College, Mambara** ( _supra_ ), a learned Division Bench of this Court had taken the view that Government cannot take a blanket decision to refuse NOC in every case, without even considering the credentials or merits of the application. This view has been cemented by the Hon’ble Supreme Court in **Jaya Gokul Educational Trust** ( _supra_ ) also. In paragraph 27 of the said judgment, the Hon’ble Supreme Court has declared the law luculently as under. “ _The so culed ‘policy’ of the State as mentioned in the counter ffidavit filed in the High Court was not a ground for refusing approval. In Thintmuntga Kirnpan and Variyar Nadu and Ors. MANU/SC/0601/1996 : {1996}2SCR422, which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held that the “essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone”. Therefore, the Sttae could not have any “policy” outside the AICTE Act and indeed it if had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure Laid down in the AICTE_ **W.P (C) No.** **`35843/2022`** ..6.. _Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State Government could always write to the AICTE, to enable the latter to take appropriate action._ ” I am, therefore, of the firm view that, the stand of the Government that they will not consider any application in the private self financing sector cannot find my favour. However, this does not mean that they have to always grant NOC on every application, but that they must consider each application on its own - on a case to case basis; and then take a decision as to the response they intent to offer. They cannot refuse such a response saying that there is a policy decision. In the afore circumstances, I allow this writ petition and set aside Ext.P3 and direct the competent Authority of the Government to reconsider the petitioner’s application _dehors_ Ext.P5 and adverting to the afore said precedents; thus culminating in an appropriate response to be made by them to the AICTE. This shall be done as expeditiously as is possible, but not later than one month from the date of receipt of a copy **W.P (C) No.** **`35843/2022`** **==> picture [20 x 9] intentionally omitted <==** of this judgment. Needless to say, in view of the afore directions, the interim order granted by this Court on 15.11.2022 will continue to be in force and the admissions will be regularised by the AICTE subject to the afore course. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR **W.P (C) No.** **`35843/2022`** ..8.. ## **`APPENDIX OF WP(C) 35843/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPROVAL LETTER BEARING NO. F. NO. SOUTH-WEST/1- 10973971733/2022/EOA/CORRIGENDUM-1 DATED 24.08.2022 ``` ``` Exhibit P2TRUE COPY OF REQUEST LETTER DATED 13.04.2022 SUBMITTED BY THE COLLEGE BEFORE RESPONDENT NO. 2 Exhibit P3TRUE COPY OF THE REJECTION LETTER DATED 22.09.2022 BEARING NO. L1/1625/22/DTE(III) ISSUED BY RESPONDENT NO. 2 ``` ``` Exhibit P4A TRUE COPY OF THE GOVERNMENT LETTER NO. L2/100/2022HEDN DATED 07.05.2022 Exhibit P5A TRUE COPY OF THE GOVERNMENT LETTER NO. L2/112/2021HEDN DATED 03.09.2021 ISSUED BY RESPONDENT NO.1 ``` ``` Exhibit P6A TRUE COPY OF THE PROSPECTUS PUBLISHED BY RESPONDENT NO. 2 Exhibit P7A TRUE COPY OF THE ANNEXURE I TO THE PROSPECTUS ```