IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WA.No. 1432 of 2010 --------------------- AGAINST THE ORDER IN WPC.24957/2010 Dated 16/08/2010 .................... APPELLANTS/RESPONDENTS: -------------------------------- 1. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, REP. BY ITS CHAIRMAN 7TH FLOOR, CHANDRALO BUILDING, JANPATH, NEW DELHI-110001. 2. THE EXECUTIVE COMMITTEE, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, REP. BY ITS CHAIRMAN, 7TH FLOOR, CHANDRALOK BUILDING, JANPATH, NEW DELHI-110001. 3. REGIONAL OFFICER, REGIONAL COMMITTEE OF AICTE, (SOUTH WEST REGION) BANGALORE. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT/PETITIONER: ------------------------------ ERNAKULATHAPPAN CHARITABLE EDUCATIONAL TRUST, KRISHNALAYAM, 28/1031, RAMASWAMY IYER COLONY, S.A. ROAD, COCHIN-36, REP. BY ITS CHAIRMAN, DR. VENITRAMAN.P.R. BY ADV. SRI.GEORGE THOMAS MEVADA(SENIOR) SRI.SUSHEEL HOSEPH CYRIAC SRI.MANU GEORGE KURUVILLA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2010, ALONG WITH WA NO.1435 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R. Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos. 1432, 1439 & 1435 of 2010 and W.P.(C) Nos. 24835, 24838, 24884, 24956, 24957, 24975, 25144, 25749 & 26008 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September, 2010 ORDER J.Chelameswar, C.J. This batch of matters, three writ appeals and 9 writ petitions, raise certain common issues and therefore listed before this Court by virtue of an order dated 20.08.2010 in W.A. Nos. 1432, 1439 & 1435 of 2010. The writ appeals were filed by the respondents in the corresponding writ petitions, aggrieved by an interim order passed in each of those writ petitions. 2. The factual background of this litigation is as follows: Each of the writ petitioners is an educational agency intending to establish an educational institution imparting education in various Engineering courses or (in some cases) certain courses in B.Pharm, Business Administration and Management. The establishment of and the standards to be WA No. 1432 of 2010 and connected cases. -:2:- met by such institutions is governed by an enactment known as the “All India Council for Technical Education Act, 1987(for short AICTE Act). Under the scheme of the said Act, a Council known as All India Council for Technical Education is established under Section 3 of the Act. Such a 'Council' is a body corporate with perpetual succession and common seal. 3. Section 10 of the said Act prescribes the functions of the said Council. One of the functions is to lay down norms and standards for courses, curricula, physical and infrastructural facilities, staff pattern, staff qualifications etc. Another function is granting of approval to start new technical institutions or for introduction of new courses or programmes. The Council is also entrusted with the authority to inspect the colleges/institutions imparting technical education. For the purpose of the present order, the further details of the said enactment are not necessary. 4. The norms regulating the grant of necessary permission for the establishment of a new educational institution proposing to impart technical education is prescribed by the policy of the WA No. 1432 of 2010 and connected cases. -:3:- Council from time to time. In exercise of the powers vested in the Council for framing the policy, it published certain instructions which are admittedly applicable in the cases of all those institutions seeking approval with effect from the academic year 2010-11. The policy is contained in a document known as approval process hand-book published by the AICTE which is filed as an exhibit in all these writ petitions. Under Clause 3.1 of the said instructions, without prior approval of the Council no technical institution or an integrated campus offering technical education shall not be established. The expression “technical institution” is defined under Section 2(h) of the Act which reads as follows: “2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx (h) “Technical institution” means an institution, not being a University, which offers courses or programmes of technical education , and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;” Whereas the expression “integrated campus” is defined under the WA No. 1432 of 2010 and connected cases. -:4:- abovementioned scheme under paragraph 2.30 as follows: “2.30. “Integrated Campus” means a campus where Institutes offer Technical Education in two or more different programme in Technical Education.” 5. Paragraph 4 of the hand-book prescribes the eligibility criteria for an application. Paragraph 5 deals with the procedure for making the application. Paragraph 6 deals with the mode of submitting the application. Paragraph 7 deals with the evaluation of the applications. Under paragraph 7.1 it is mentioned that the application should be evaluated by a Scrutiny Committee constituted by the Chairman of the “Regional Committee” established under Section 14 of the Act. It is provided in the subsequent sub-paragraphs of paragraph 7 as to the procedure to be followed by the Scrutiny Committee (details of which may not be necessary for the present purpose). If on such scrutiny any deficiency is noticed by the Scrutiny Committee, the same is required to be communicated to the applicant. Thereafter the applicant is required to rectify the deficiencies and submit a compliance report, upon the receipt of which a further scrutiny is contemplated under paragraph 7.5. In WA No. 1432 of 2010 and connected cases. -:5:- all those cases where it is found that the deficiencies are in fact rectified, the application would be processed further. Under paragraph 8 of the hand-book a visit by a body called 'Expert Committee' to the institution to verify various aspects mentioned in paragraph 8.1 is stipulated. The Expert Committee on such visit after examining the various documents, buildings and other infrastructural facilities is to report its assessment of the various abovementioned factors. Such a report is to be considered by a 'Regional Committee' along with the views of the State Government and also the concerned University. The Regional Committee, if it is satisfied that the applicant fulfills all the norms, makes a recommendation to the Council for the issuance of a letter of approval. Paragraph 9 of the hand-book in this regard reads as follows: “9. Evaluation by the Regional Committee The uploaded report will be made available to the meeting of the Regional Committee, which will consider the report along with views of concerned State Government/UT and affiliating University and recommend further for issuance of Letter of Approval or otherwise by the date as mentioned in time schedule. WA No. 1432 of 2010 and connected cases. -:6:- The Regional Officer will inform the applicant institutions, whose applications are recommended for grant of approval by the Regional Committee by the date as mentioned in time schedule for submission of a Fixed Deposit along with an affidavit in the same respect. Such applicant shall create a Fixed Deposit in a Nationalised Bank or Scheduled commercial Bank recognized by the Reserve Bank of India, for a period of 8 years in favour of Member Secretary, All India Council for Technical Education for an amount as applicable to the category of the Institutions indicated below (Government and Government Aided Institutions are exempted). Amount of FDR Programme Minority Institutions/ Institutes set up exclusively for women/Institutions in Hilly area in North Eastern States All other applicants Engineering & Technology Rs.28.00 Lakhs Rs.35.00 Lakhs Pharmacy Rs.12.00 Lakhs Rs.15.00 Lakhs Architecture/Town Planning Rs.12.00 Lakhs Rs.15.00 Lakhs Applied Arts & Crafts Rs.12.00 Lakhs Rs.15.00 Lakhs MBA/PGDM Rs.12.00 Lakhs Rs.15.00 Lakhs HMCT Rs.12.00 Lakhs Rs.15.00 Lakhs Provided further that, in case of an application for an integrated campus, the total amount of the requisite Fixed Deposit shall be calculated by adding the amounts specified for each programme.” WA No. 1432 of 2010 and connected cases. -:7:- It can be seen from the above extracted portion that while making a recommendation to the Council, the Regional Committee is also required to inform the applicant about the recommendation along with an intimation to furnish a Fixed Deposit of a specified sum which varies depending upon the application. 6. On receipt of the recommendation of the Regional Committee, the Council shall take a decision regarding the grant of approval or otherwise in the case of each of the applicants after examining the entire materials relevant in the context. Paragraph 12 contemplates an appeal to an appellate committee constituted under Section 4 of the Act, in all those cases where an approval is denied to an applicant. Paragraph 12 (1) requires an order denying the approval by the Council to be accompanied by the grounds for such denial. The Appellate Committee by an examination of all the materials placed before it by the applicant as well as the Council shall take a final decision regarding the entitlement of the applicant to secure the approval. It appears from the language of the para 12 that the decision of the WA No. 1432 of 2010 and connected cases. -:8:- appellate committee is binding on the Council. 7. Each one of the writ petitioners is an applicant for the approval by the Council for the establishment of either a technical institution or an integrated campus. Without going into the individual factual details of all these cases we may mention that in all these cases an evaluation of the application followed by a visit of the Expert Committee took place. In each of the cases, certain deficiencies were noticed by the Expert committee. The applicants/writ petitioners in all these cases claim that such deficiencies pointed out by the Expert Committee were subsequently rectified. Thereupon the Regional Committee made an appropriate recommendation to the Council for grant of the approval in some of the cases. In some cases, a communication was also sent to the concerned applicant calling upon the applicant to make a deposit in terms of paragraph 9 of the hand- book. It is also the assertion in some of these writ petitions that subsequent to such deposits, the names of some of these institutions are shown in the website maintained by the Council as institutions which are approved by the Council for the WA No. 1432 of 2010 and connected cases. -:9:- academic year 2010-11. For example, the case of the petitioners in W.P.(C) Nos.24838 and 25144 of 2010. 8. However, each one of these writ petitioners subsequently received a communication dated 29.07.2010 from the Council. The relevant portion of the communication, i.e., in W.P.(C) No.24957 of 2010 reads as follows: “Based on recommendations of scrutiny/rescrutiny committee, an expert committee visit was arranged to verify all the facilities created for the proposed institute. The deficiencies pointed by the expert committee were communicated to you through portal. Further you were given an opportunity to comply the deficiencies before a duly constituted appellate committee. The appellate committee after studying your points of compliance rejected/recommended for revisit of the institution and incase of revisit of the expert visit reports were evaluated by the regional committee and then executive committee. Further, all the recommendations of the appellate committee were considered by the Council. After duly verifying all the points as per the regulations the council did not accord the approval on the following grounds:- 1. Does not qualify for issue of LoA as all the deficiencies noted by the expert visiting team has not been cleared yet. However, a fresh application for the establishment of New Technical Institution for the next academic year may be made.” 9. Each one of these writ petitions came to be filed WA No. 1432 of 2010 and connected cases. -:10:- challenging a similar communication received by each one of the applicants. We have examined all the impugned proceedings. We may state that barring some minor variations in the language, the essence of all the communications is the same and the pattern of the communication is identical. The relevant portion of the communication in the case of W.P.(C) No.24957 of 2010 is already extracted earlier, by way of an illustration of the nature of the communication in all these cases. It can be seen from the above that the communication absolutely lacks clarity without any indication as to what exactly is the deficiency which prompted the Council to reject the application of the applicants. We are of the opinion that the communications such as the one challenged in all these writ petitions do not certainly satisfy the parameters of rationality required to be satisfied in the administrative decision making process. It is well settled that any administrative decision which adversely affects the rights of the subject is required to spell out with certainty the reasons which prompted to such an adverse decision. On that short ground, in our opinion, each one of these writ petitions is WA No. 1432 of 2010 and connected cases. -:11:- required to be allowed, but that does not in any way put an end to the litigation. In each of these writ petitions, the petitioners not only challenge the legality of the communication such as the one extracted above, but also seek a further direction to the Council compelling it to issue a letter of approval to each of these petitioners. Such a further relief, in our opinion, cannot be granted by this Court in the normal course, unless the Court is satisfied that each of the petitioners is undoubtedly entitled under law for the issuance of such a letter of approval. Such an entitlement is required to be decided on the basis of number of factors such as the existence of appropriate infrastructure, availability of competent teaching staff, financial stability of the educational agency to run the institution, etc. In law, such an assessment is required to be done by the Council after following an elaborate procedure. While making such an assessment (in a given case or in a set of cases) if the Council commits an error in following the appropriate procedural forms, such a failure on the part of the Council, in our view, does not automatically entitle the applicant to claim a relief from this Court as the one sought WA No. 1432 of 2010 and connected cases. -:12:- in these writ petitions. 10. The All India Council for Technical Education is a constitutionally recognised and statutorily established body to regulate and monitor the standards of technical education in this country. A mere examination of the composition of the Council specified under sub-section 4 of Section 3 of the Act would reveal the nature of the expertise that is required to go into the composition of a Council. Therefore, without an appropriate assessment by such an expert body and clearance from such an expert body after due assessment of all the relevant factors for granting the approval, such a body cannot be compelled to grant approval/recommendation to any applicant. Such a decision would not only be inconsistent with the requirements of the law but also a disservice to the cause of the technical education in this country. 11. In the circumstances, we are of the opinion that the impugned order in each one of these writ petitions is required to be set aside and in the interests of justice we deem it appropriate to direct the respondent Council to communicate each of these WA No. 1432 of 2010 and connected cases. -:13:- writ petitioners the precise grounds on which the approval in each one of these cases is declined within a reasonable period of time. Upon such communication, it shall be open to each of the applicants to take such measures as they deem appropriate and communicate to the Council seeking a further inspection in order to enable the Council to record its satisfaction of the compliance of all the norms laid down by the Council in the case of each of the applicants. The Council thereafter shall grant the necessary approval in all those cases which are found eligible. The entire exercise, in our opinion, is required to be completed expeditiously, preferably within a period of three weeks from the date of receipt of a copy of this order by the Council. 12. Some of the learned counsel appearing in some of these writ petitions however contended that in their cases a further inspection or a further assessment as indicated above is uncalled for, as the applicants/writ petitioners complied with all the stipulations necessary for obtaining the approval from the Council and therefore prayed that their writ petitions be examined on merits and consequential relief of direction WA No. 1432 of 2010 and connected cases. -:14:- compelling the Council to grant necessary approval be granted. 13. Having heard Sri.S.Krishnamoorthy, the learned counsel appearing for the AICTE, we deem it appropriate that the following writ petitions be listed before an appropriate Bench on 27.09.2010 for an examination of the submission noted above: W.P.(C) Nos. 24838, 24884, 24956, 24957, 24975, 25144 & 26008 of 2010. 14. We are informed by the learned counsel for the AICTE that in some of these cases appropriate counter affidavits have not been filed so far. We permit the respondent to file the counter affidavits in the meanwhile, if they are so advised. The Registry is directed to list these matters on 27.09.2010. J.Chelameswar, Chief Justice. P.R. Ramachandra Menon, Judge. ttb WA No. 1432 of 2010 and connected cases. -:15:-