IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 31492 of 2007(Y) -------------------------- PETITIONER: ------------------ VISWAJYOTHI COLLEGE OF ENGINEERING & TECHNOLOGY REPRESENTED BY ITS MANAGER MSGR THOMAS MALEKUDY VAZHAKULAM, MUVATTUPUZHA ERNAKULAM 686670. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENTS: ----------------------- 1. THE M.G.UNIVERSITY REPRESENTED BY ITS REGISTRAR PRIYADARSINI HILLS KOTTAYAM 686 560. 2. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY HIGHER EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT,TRIVANDRM-1 BY ADV. MR. T.A. SHAJI, SC, MG UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31492 of 2007(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF LETTER DATED 30.1.2007 ISSUED FROM THE 1ST RESPONDENT. EXT.P2 - COPY OF 2 PAGES OF LIST PUBLISHED BY THE AICTE, APPROVED ENGG. INSTITUTIONS FOR THE ACADEMIC YEAR 2007-08 EXT.P3 - COPY OF ORDER DATED 13.7.2006 OF ACADEMIC A. VII SECTION OF THE M.G.UNIVERSITY. EXT.P4 - COPY OF ORDER DATED 28.7.2007 ISSUED FROM THE 2ND RESPONDENT. EXT.P5 - COPY OF NOTIFICATION DATED 31.3.2009 ISSUED FROM THE JOINT REGISTRAR IN CHARGE OF THE CONTROLLER OF EXAMS. EXT.P6 - COPY OF COMMUNICATION DATED 11.7.2007 FROM THE AICTE. EXT.P7 - COPY OF COVERING LETTER DATED 21.2.2008 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT.P8 - COPY OF COMMUNICATION DATED 2.5.2008 ISSUED FROM THE AICTE TO THE PRINCIPAL SECRETARY TO GOVT. EXT.P9 - COPY OF COMMUNICATION DATED 26.8.2008 TO THE AICTE EXT.P10 - COPY OF THE PRINT OUT OF THE RELEVANT PAGE FROM THE WEBSITE. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 31492 of 2009 ................................................. Dated this the 7th day of July, 2009 J U D G M E N T The petitioner is a college of Engineering and Technology. They had A.I.C.T.E. approval and University affiliation for B.Tech courses in Electronics and Communication and Computer Science & Engineering, each for 60 students. While they were conducting those courses, they applied to the A.I.C.T.E. as well as University for the approval of additional intake of 60 more students. That application was for the year 2006-2007. By Ext.P1 dated 30.1.2007, the Registrar of University informed the petitioner that the University has considered the application of the petitioner for additional intake of 60 students and had recommended to the A.I.C.T.E. and the Government of Kerala as per letters dated 31.5.2006. However, A.I.C.T.E. approval was not received for that year, so as to admit the additional students for that year. Subsequently, the A.I.C.T.E. in their website published status of approval for A.I.C.T.E. approved Engineering institutions for the academic year 2007-2008, copy of which is Ext.P2. In the same, as per item 92, the additional intake of 60 more students each in the W.P(C) No. 31492 of 2009 -2- petitioner's college for the two subjects Computer Science & Engineering and Electronics and Communication Engineering was also included. Subsequently, by Ext.P6, A.I.C.T.E. issued formal orders of approval for the additional intake for the year 2007-2008, subject to the condition that all facilities including additional built area and appointment of faculty should be made available before the commencement of the next academic session. According to the petitioner, a copy of Ext.P6 was marked to the Registrar of the University also, requesting to complete the process of affiliation for facilitating admission. In the meantime, by Ext.P4 order dated 28.7.2007, the Government informed the University that the increase in intake is not sanctioned by the Government as it is against the policy followed by the Government. Since the University did not pass orders granting affiliation to the additional intake as sanctioned by the A.I.C.T.E., the petitioner filed this writ petition seeking the following reliefs: “(i) to issue a writ of certiorari or other appropriate order or direction to quash Ext.P4. (ii) to issue a writ of mandamus or other appropriate order or direction to direct the MG University to grant approval to the additional intake sanctioned to the petitioner's college as notified in Ext.P2, ignoring Ext.P4 communication by the Government.” 2. When the writ petition came up before this court earlier, W.P(C) No. 31492 of 2009 -3- the learned counsel for the University submitted before the court that the University has not received a copy of Ext.P6. Therefore by Ext.P7 dated 21.02.2008, the petitioner forwarded a copy of Ext.P6 to the University. Subsequently, by Ext.P8, the A.I.C.T.E. granted approval for additional intake for the years 2008-2010 also subject to the rectification of deficiencies pointed out therein. According to the petitioner, by Ext.P9, the petitioner informed the A.I.C.T.E. about compliance with the rectification of deficiencies as well. Petitioner points out that by Ext.P10, the A.I.C.T.E. published in their website the fact that the approval for the additional intake was granted to the petitioner college for the year 2009-2010 for the above two subjects. According to the petitioner, since the A.I.C.T.E. has granted approval for the additional intake, the University was bound to grant affiliation for the additional intake of students. 3. The University has filed a counter affidavit and an additional counter affidavit contending that without grant of affiliation for the additional intake also, the petitioner could not have admitted additional students to the courses for the year 2007- 2008, despite the grant of approval by the A.I.C.T.E., insofar as the statutes applicable specifically stipulate that students cannot be W.P(C) No. 31492 of 2009 -4- admitted without grant of affiliation. They would also submit that insofar as copy of Ext.P6 have not been received by them and therefore there was no occasion for them to consider the question of affiliation of additional intake for the year 2007-2008. Therefore the action of the petitioner in admitting students without obtaining affiliation is clearly against the provisions of the statutes applicable is the contention raised by the University. Hence, according to the University, the petitioner is not entitled to the reliefs prayed for. 4. I have considered the rival contentions in detail. 5. Before going into the contentions of the parties, I have note certain facts which came into being after the filing of this writ petition. This writ petition was admitted on 2.11.2007 and the standing counsel for the University took notice on behalf of the 1st respondent. On that date, this court passed the following order: “Standing Counsel takes notice for the 1st respondent. Learned Government Pleader takes notice for the 2nd respondent. The evaluation team, inspecting the petitioner's college today will also inspect the facilities that are provided for the additional intake, approved by the AICTE as per Ext.P2 order.” Thereafter, the petitioner submitted I.A. No. 5517 of 2008, seeking a direction to the University to receive applications of all the students appearing for the 1st year B.Tech examinations of W.P(C) No. 31492 of 2009 -5- Electronics and Communication batch of 2007-2008 and to permit those students to appear for the exams, subject to the result of the writ petition. The same came up on 22.2.2008 and this court granted an interim order as prayed for. Later I.A. No. 5590 of 2008 was also filed to correct the name of the subjects as Electronics and Communication and Computer Science, which I.A. was also allowed on 25.4.2008. Again the petitioner filed I.A. No. 13227 of 2008, seeking the following directions. “i) to direct the 1st respondent University to publish the result of the 1st year exam of students who had appeared for the exams, pursuant to the orders dated 22.4.2008 in I.A. No. 5517 of 2008; ii) to direct the University to permit the above students to appear for their ensuing exams, commencing from 30.10.2008 onwards.” This court considered that application and passed the following order on 23.10.2008. “ Heard Mr. Kurian George Kannamathanam and Mr. T.A. Shaji. Taking note of the earlier orders passed by this court, there will be a direction to R1, University, to publish the results of the First Year examination given by the students, who had appeared for the examination pursuant to the order dated 25.4.2008 in I.A. No. 5590/08. University shall permit such among the students, who are otherwise eligible for the third semester examination, scheduled to commence on 30.10.2008 to appear in the said examination. It is made clear that this participation shall be purely provisional and shall not create any equity in favour of the students or in favour of the institution, as W.P(C) No. 31492 of 2009 -6- the case may be and shall be subject to further order to be passed in the writ petition.” Again the petitioner filed I.A. No. 5366 of 2009 seeking a direction to permit the students of the petitioner's Çollege, undergoing their B.Tech courses in (1) Electronics and Communication (2) Computer Science, to appear for their respective exams in the combined Ist and IInd semester exams and the IVth semester exams, as notified by Ext.P5 pending disposal of the writ petition. In that I.A. this court passed the following interim order on 24.4.2009. “Heard. There will be an interim order as prayed for and it is made clear that the appearance will be provided and subject to the outcome in the writ petition. Call on 26.5.2009” Accordingly, the students have written the examinations and their future now hangs on the result of this writ petition, insofar as if this writ petition is dismissed, these students would lose the benefit of the course undergone by them so far and also the benefit of the examinations they have written. 6. The contention of the petitioner is that what is contemplated in the case of additional intake is only an approval by the University and not affiliation and therefore there is nothing wrong in the college admitting students in anticipation of approval for the additional intake by the University. They also relied on W.P(C) No. 31492 of 2009 -7- Ext.P3 order of the University itself, wherein they had granted approval for the increase in intake to colleges mentioned therein wherein the word affiliation is not mentioned at all. The question whether for additional intake what is contemplated is approval or affiliation was considered by me in W.P(C) No. 4585 of 2008 and after considering the provisions of the statutes applicable I had held that what is contemplated by the statutes is affiliation for additional intake also and the prohibition regarding admitting students without obtaining affiliation applies to additional intake also. 7. What I have to next consider is whether the petitioner is entitled to affiliation for the additional intake. As far as Ext.P4 objection of the Government is concerned, I am of opinion that the view of the Government in that regard cannot stand in the way of the University granting affiliation for the additional intake in so far as a Full Bench of this court in Vikarm Sarabhai E. Trust & B.Ed. College v. University of Calicut, 2008(2) KLT 1027 (FB) had categorically held that when the central body grants recognition based on the finding that the college has necessary infrastructural facilities, the University has no power or authority to decline affiliation on the ground of lack of infrastructural W.P(C) No. 31492 of 2009 -8- facilities. If that be so, once A.I.C.T.E. grants approval, in the matter of affiliation by the University, the views of the Government cannot stand in the way. In fact in various other Supreme Court decisions, it has been held that once the Central Body grants recognition, the views of the Government is immaterial. In this case despite a counter affidavit and an additional counter affidavit, University has no case that the petitioner's college does not have infrastructural facilities necessary of imparting instructions for the additional 60 students also. In fact this court had specifically directed the University by order dated 2.11.2007 to inspect the facilities that are provided for the additional intake in the petitioner's college. It is admitted before me by the learned Counsel for the University that, no inspection has been conducted pursuant to that order. Probably, it is because of the same that this court was constrained to pass interim orders subsequently permitting the students to write the examinations. In such circumstances, it would be a travesty of justice, if on the technical ground that the University did not grant affiliations, the admissions of those students are to be cancelled. Although, strictly legally, the petitioner could not have admitted students before obtaining affiliation, in the peculiar facts and circumstances of the case, I am W.P(C) No. 31492 of 2009 -9- of opinion that, that should not stand in the way of the University granting affiliation as per the approval granted by the A.I.C.T.E. retrospectively. The University now contends that Ext.P6 order of approval by A.I.C.T.E. was not received by them. It is seen from Ext.P6 that copy of the same has been marked to the Registrar of the University with a request to complete the process of affiliation for facilitating admissions. In order to ascertain whether the University had received the same, this court would have to embark on the cumbersome process of issuing notice to A.I.C.T.E. and getting them to state as to whether Ext.P6 had been forwarded to the University as seen from Ext.P6. In any event it is not disputed before me that by Ext.P1, the University had informed the petitioner that they had recommended the additional intake for the two subjects to the A.I.C.T.E. as well as Government. Further, by Ext.P7, copy of Ext.P6 was forwarded to the University also. It is not disputed before me by the University that no steps have been taken by the University to consider the question of affiliation of the additional intake even as per Ext.P7, probably because of the pendency of this writ petition. In any event, the University does not have a case now that the petitioner is not entitled to affiliation for the additional intake for the two subjects, in accordance with W.P(C) No. 31492 of 2009 -10- the University statutes. They only stand on the technicality that the petitioner could not have admitted students without first obtaining affiliation. In the facts and circumstances of the case, I am of opinion that the University should grant affiliation for the additional intake retrospectively as per Ext.P6. Accordingly, there would be a direction to the 1st respondent University to grant affiliation to the additional intake for the two subjects as per Ext.P6 approval by the A.I.C.T.E retrospectively. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. In the meanwhile, anticipating such affiliation, the petitioner can make admissions to the course as per Ext.P6 approval by the A.I.C.T.E. and the already admitted students can continue the course and appear for examinations as if they had been validly admitted which shall not be interdicted by the University in any manner. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs