IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 WP(C).No. 24884 of 2010(I) --------------------------------------- PETITIONER(S): ------------------------ NOORUL ISLAM TRUST, REG.NO.198/1998, PERUMPILLICHIRA P.O.,THODUPUZHA, IDUKKI DISTRICT-685 605,REPRESETNED BY ITS CHAIRMAN, K.M.MOOSA. BY ADVS. SRI.C.A.MAJEED, SRI.ASIF K.H. RESPONDENT(S): ---------------------------- 1. THE CHAIRMAN, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, 7TH FLOOR,CHANDROLOK BUILDING, JANPATH, NEW DELHI-110 001., REP. BY ITS CHAIRMAN. 2. THE REGIONAL OFFICER, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, SOUTH WEST REGIONAL OFFICE, P.K.BLOCK, PALACE ROAD, BANGALORE-560 009. 3. THE COMMISSIONER OF ENTRANCE EXAMINATION, SHANTINAGAR, TRIVANDRUM-695 001. R1 & R2 BY ADV. SRI.S.KRISHNAMOORTHY, SC, AICTE R3 BY GOVERNMENT PLEADER SRI. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010 ALONG WITH WPC.NO.24956 OF 2010 AND CONNECTED CASES, THE COURT ON 06/10/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.24884/2010 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF APPLICATION SUBMITTED BY THE PETITIONER ON 16/02/2010 ON THE AICTE WEB PORTAL. P2: COPY OF THE REVISED APPROVAL PROCESS HAND BOOK OF ALL INDIA COUNCIL FOR TECHNICAL EDUCATION. P3: COPY OF VERIFICATION REPORT BY THE SCRUTINY COMMITTEE ON 4/05/2010 REFERRED TO IN THE WRIT PETITION (CIVIL). P4: COPY OF REPORT OF VERIFICATION OF PROCESS COPY BY THE SCRUTINY COMMITTEE. P5: COPY OF RERPORT OF THE EXPERT COMMITTEE ON 26/05/2010 REFERRED TO IN THE WRIT PETITION (CIVIL). P6: COPY OF REPORT OF THE REGIONAL COMMITTEE ON 9/06/2010 REFERRED TO IN THE WRIT PETITION (CIVIL). P7: COPY OF ADVERTISEMENT NO.APPROVAL/06(01)/2010 DTD.15/07/2010 BY THE RESPONDENTS REFERRED TO IN THE WRIT PETITION (CIVIL). P8: COPY OF REPORT BY THE APPELLATE COMMITTEE REFERRED TO IN THE WRIT PETITION (CIVIL). P9: COPY OF REPORT BY EXPERT VISITING COMMITTEE, REFERRED TO IN THE WRIT PETITION (CIVIL). P10: COPY OF REPORT BY THE 2ND RESPONDENT REGIONAL OFFICER, REFERRED TO IN THE WRIT PETITION (CIVIL). P11: COPY OF ADVERTISEMENT BY THE PETITIONER IN MALAYALA MANORAMA DAILY DTD. MAY,2010. P12: COPY OF REPORT BY THE REGIONAL COMMITTEE DTD. 23/06/2010 REFERRED TO IN THE WRIT PETITION (CIVIL). Kss ..2/- ..2.... WPC.NO.24884/2010 i P13: COPY OF LETTER NO.NIT-AACET/1/18/AICTE DTD. 30/06/2010 OF THE PETITIONER TO THE 2ND RESPONDENT. P14: COPY OF DETAILS OF TEACHING STAFF OF THE PETITIONER'S INSTITUTE, REFERRED TO IN THE WRIT PETITION (CIVIL). P15: COPY OF PRINT OUT RELEVANT PAGES OF THE RESPONDENTS' WEBSITE, REFERRED TO IN THE WRIT PETITION (CIVIL). P16: COPY OF LETTER NO.2795/10/Ac.VII DTD. 13/07/2010 OF THE MAHATMA GANDHI UNIVERSITY TO THE REGISTRAR. P17: COPY OF ORDER, GO(MS) NO.190/10/H.EDN. DTD. 28/07/2010 OF THE REGISTRAR TO THE MAHATMA GANDHI UNIVERSITY. P18: COPY OF REPRESENTATION VIDE NO.NIT/AICTE/2010-11-313 DTD. 20/07/2010 BY THE PETITIONER TO THE 1ST RESPONDENT. P19: COPY OF LETTER VIDE F.NO.SWRO/2010/1-6093391/NEW DTD. 29/07/2010 BY THE 1ST RESPONDENT TO THE CHAIRMAN, AL-AZHAR COLLEGE OF ENGINEERING & TECHNOLOGY, REFERRED TO IN THE WRIT PETITION (CIVIL). RESPONDENT'S EXHIBITS: R1(A): COPY OF THE RELEVANT PORTION OF THE REPORT OF THE EXPERT COMMITTEE. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 24884/2010-I, 24956/2010-T, 24957/2010-T, 24975/2010-V, 25144/2010-P & 26008/2010-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2010. JUDGMENT All these writ petitions raise common issues and therefore they are being disposed of by a common judgment. 2. These writ petitions have been filed seeking to quash the communications issued by the All India Council for Technical Education (AICTE) declining approval for establishment of new technical institutions, as sought for by the petitioners. In all cases, except in W.P.(C) No.26008/2010, a common interim order was passed by this Court on 16.8.2010 while admitting the writ petitions, to grant provisional approval to the petitioners' institutions. As far as W.P.(C) No.26008/2010 is concerned, when the said writ petition came up for admission learned counsel for the respondents submitted that in W.A. No.1432/2010 filed against the interim orders, the Division Bench has withdrawn similar cases to be heard by the Division Bench and accordingly it was ordered to be posted before the Division Bench. WPC 24884/2010, etc. 2 3. All the writ petitions were thus heard along with W.A. Nos.1432/2010, 1439/2010 and 1435/2010. The impugned orders in each one of the writ petitions were set aside. The Council was directed to communicate to each of the writ petitioners the precise grounds on which the approval in each one of these cases is declined, within a reasonable period of time. It was also directed that 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 necessary approval in all those cases which are found eligible. These writ petitions were posted back for considering the consequential relief of direction compelling the Council to grant necessary approval, in the light of the contention raised by the learned counsel appearing in the cases that in their cases a further inspection or a further assessment as indicated in para 11 of the order is uncalled for, as the applicants complied with all the stipulations necessary for obtaining the approval from the Council. Accordingly, they have been reposted for hearing. WPC 24884/2010, etc. 3 4. On behalf of the respondents, counter affidavits have been filed and the petitioners have also filed reply affidavits. 5. Heard Shri N. Nandakumara Menon, Shri Kurian George Kannanthanam, Shri K.P. Dandapani and Shri George Thomas Mevada, learned Senior Counsel, Shri K. Jaju Babu and Shri K.I. Mayankutty Mather, learned counsel for the petitioners, Shri S. Krishnamoorthy, learned Standing Counsel appearing for the AICTE and learned Govt. Pleader. 6. In all these writ petitions, except in W.P.(C) No.26008/2010 the petitioners are seeking for approval for establishing Engineering Colleges, whereas in W.P.(C) No.26008/2010 the application is for establishing a College for conducting Management Courses. 7. It is the case of the petitioners that all formalities with regard to the application, viz. scrutiny and re-scrutiny by Scrutiny Committee, visit by Expert Committees and revisit by Expert Committees, consideration of appeal by the Appellate Committee and recommendation by the Regional Committee, have all been followed scrupulously in these cases in terms of the stipulations contained in the Approval Process Hand Book. After the recommendations were thus made, they were directed to make Fixed Deposit as specified in the Hand Book, viz. Rs.35 lakhs in the case of WPC 24884/2010, etc. 4 Engineering Colleges and Rs.15 lakhs in the case of the applicant in W.P. (C) No.26008/2010. Their names have found a place in the list of approved institutions published by the AICTE in their Website. Thus, it is pointed out that no deficiencies remain to be complied with by them. 8. Since the arguments mainly centered around the question whether any of the procedural formalities have to be complied with in respect of the applicants, a reference to the procedures prescribed in the Hand Book is relevant. The application is in two parts, viz. Part A and Part B. A time schedule has been prescribed and published by AICTE for submitting applications and other various stages with regard to the processing of the same culminating in the final stage. 9. Para 5.1 relates to the submission of application in Part A. The said application in the prescribed format along with the enclosures including Detailed Project Report in the format prescribed, has to be submitted online at AICTE web-portal. A unique identification number will be allotted to each application for further reference. Importantly, it is mentioned in para 5.1 that “by using this number the applicant Society/Trust will be able to track the status of the application at various stages of processing the application using AICTE web-portal.” The processing fee for various types of institutions varies from Rs.80,000/- to Rs.1,00,000/- WPC 24884/2010, etc. 5 which will have to be paid through E-Banking facility. 10. Para 6.1 provides that a print of the complete application and enclosures as uploaded to the AICTE web-portal, printed thereon, shall be submitted to the following on or before the date as mentioned in the time schedule: (1) Affiliating University; (2) Concerned State Government/UT; and (3) Concerned Regional Office of AICTE. It should be appended by the documents mentioned in sub para (a) to (e) therein. Para 6.2 provides that the State Government/UT and the affiliating university will forward to the concerned Regional Office of the Council by the date as mentioned in the time schedule, their views on the applications. The evaluation of the application is provided in para 7. The detailed procedure provided therein shows the following: (a) The application shall be evaluated by a Scrutiny Committee constituted by the Chairman, Regional Committee by selecting members using automated selection process provided by the AICTE web-portal; (b) The Scrutiny Committee will invite all applicants for presentation of their proposals along with: (i) Originals of all scanned documents 1 to 14 (and 15) of 5.1, and a to e of 6.1; (ii) Proof of submission of copy of application to concerned affiliating WPC 24884/2010, etc. 6 University; (iii) Proof of submission of copy of application to concerned State Government/UT; and (iv) A video CD of all facilities created for new Institutions. Based on the recommendations of the Scrutiny Committee, the Regional Officer concerned will communicate deficiencies, if any, to the applicant Society/Trust by the date as stated in the time schedule. (Para 7.3). © The applicant Society/Trust may rectify the deficiencies and submit compliance by the date as stated in time schedule for reconsideration by the Scrutiny Committee. The list of deficiencies will also be posted in the AICTE web-portal for information. The last date for reconsideration of such applications by the Scrutiny Committee will be as stated in time schedule. (para 7.4). (d) Only in those cases who are found to be in order in all respects by the Scrutiny Committee, the application will be processed further for issuance of Letter of approval. The list of such applications will also be posted in the AICTE web-portal for information. (para 7.5) Thus, the first stage with regard to Part A application will be completed by the conclusion of the above procedures. The applicants who were WPC 24884/2010, etc. 7 recommended by the Scrutiny Committee will get information from the AICTE web-portal from the list published. 11. Para 7.6 onwards is the next stage, viz. submission of Part B application and other steps for processing it. Para 7.6 provides that all applicants recommended by the Scrutiny Committee shall fill Part B of application in the prescribed format and upload the enclosures listed as items (a) to (x) therein on AICTE web-portal, which includes video clip with date and time of shooting indicating the complete physical infrastructure/facilities and highlighting the various aspects provided therein which includes details of the building, internal portions of rooms, etc. and other facilities. If any of the applications are not recommended by the Scrutiny Committee, they will be informed by the Council about the non approval of the proposal (para 7.7.). 12. The next stage is the visit of the Expert committee (para 8.1). They are expected to verify the following: (i) Preparation with respect to Appendix 5, i.e. Computer, Software, Internet, Printers, Laboratory Equipments and Books, Journals, Library facilities for Technical Institution; (ii) preparation with respect to Appendix 6 i.e. Additional Essential and Desired requirements for Technical Institution; and (iii) progress related to appointment of Principal/Director and faculty with respect to the norms, WPC 24884/2010, etc. 8 standards and conditions prescribed by the Council. The dates of their visit are also mentioned in time schedule. They will have access to the report of the Scrutiny Committee. The applicants will have to make available the documents listed in para 8.1 including video CD indicating the complete physical structures and facilities highlighting five items specified which includes the exterior of the entire building and every interior parts, rooms, toilets, cafeteria, entrance lobby, passages, stair cases, etc. etc. with date and time of shooting. They will have to arrange for video recording with date and time of the entire proceedings of the Expert Committee visit which will form part of the Expert Committee report and Laptop/desktop with internet facility. The Expert Committee will have to upload its report in the format prescribed on the web-portal of AICTE on the same day of the visit and the video recording of Expert Committee visit and the attendance sheet in the format prescribed which should be duly signed/digitally authenticated by the Expert Committee members and the representatives of applicant Society/Trust present during the visit. 13. The next stage is evaluation by the Regional Committee (para 9). They will have to evaluate the uploaded report along with the report of the State Government/UT and affiliating University and recommend further for issuance of Letter of Approval or otherwise by the date as mentioned in WPC 24884/2010, etc. 9 time schedule. The Regional Officer thereafter will inform the applicant institution 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. 14. One of the important process to be completed by the Regional Officer is the forwarding of a certificate with regard to the completion of all procedures. It is provided that the Regional Officer concerned, at the time of forwarding the recommendations of the Regional Committee to AICTE's headquarters, for placing before the Executive Committee or Council, shall certify that all the processes and parameters as prescribed in regulations and approval process hand book were followed by the Scrutiny Committee, the Expert Committee and the Regional Committee. In case it is not the case, the Regional officer concerned shall point out the deviations in the process or in the prescribed norms and standards. Para 10 provides for grant of approval by the Council. 15. Herein, one more aspect will have to be pointed out. The respondents had provided a remedy of appeal after the visit of the Expert Committee to the applicants in whose cases deficiencies were noted, evidently to give an opportunity for curing the same and satisfying it before the Appellate Committee. The notification issued by the AICTE in this WPC 24884/2010, etc. 10 regard has been produced as Ext.P7 in W.P.(C) No.24884/2010. The same is dated 15.6.2010. Para 1 is in relation to extension of approval/introduction of new course/s, additional divisions, etc. which is not applicable herein. Paragraphs 2 and 3 are important for the purpose of these cases, which are extracted below: “All institutions must comply/rectify deficiencies and submit the report in the form of hardcopy documents, in the FORMAT available, a AICTE website www.aicte-india.org to the respective Regional Office between 15/06/2010 to 19/06/2010, failing which, it will be presumed that such institution has not been able to rectify deficiencies. Institutions to fill the data are notified in the format available on the web portal. All cases not approved by AICTE of New Institute applicants will have to present themselves before the Appellate Committee with relevant documents based on the deficiencies notified in the Expert Committee Report appended to the respective Institute portal ID strictly as per the Schedule given on the AICTE Web Portal to be conducted on 17/06/2010, 18/06/10 and 19/06/2010.” Going by the facts of these cases, there was a time schedule prescribed for verification by the Scrutiny Committee, re-scrutiny, visit of the Expert Committee and that of the Appellate Committee. In all these cases the scrutinies were over on 18/19-4-2010 and re-scrutiny by 4/5th of May, 2010. The Expert Committee's visits were on 25/26-5-2010. The Appellate WPC 24884/2010, etc. 11 Committee's deliberations were on different dates, viz. from 17/6/2010 to 19/6/2010. After completing all these procedures, the Regional Committee's recommendations were made on 23.6.2010, going by the documents produced. 16. The petitioners made the Fixed Deposits, after they were given information from the web-portal itself that their status has been cleared. In some of the writ petitions, a copy of the same along with other instructions, have been produced. It is also their case that in tune with the instructions, they made appointment of Principal and other faculty members, staff, etc. and have produced documents as required by the instructions and the details along with the documents required, have been forwarded. Ultimately, their names found a place in the list of institutions approved by the AICTE for the academic year 2010-2011, which was published in the web-site and copies of print outs have been produced in all the writ petitions. 17. Thus, the stand taken by the petitioners in all these writ petitions is that all the procedures have been satisfactorily completed by them and all necessary steps have been taken to carry out the instructions with regard to the clearance of Parts A and B applications, deficiencies, furnishing of F.D, appointment of staff and getting approval/NOC from the State Government. It is therefore pointed out that the stand taken by the Council is un- WPC 24884/2010, etc. 12 understandable and without any application of mind and without considering the relevant proceedings of various Committees culminating in the recommendation by the Regional Committee. 18. Importantly, it is also submitted that the same procedures have been adopted, followed and undertaken in respect of the institutions whose names have been published, as approved along with that of petitioners. Thus, it is pointed out that if there was a failure, lapse/inadequacy in respect of any of the steps taken by the different Committees, it would have affected all those institutions. It is therefore submitted that the stand taken against the petitioners is discriminatory. 19. Shri S. Krishnamoorthy, learned Standing Counsel appearing for the AICTE raised the following submissions: It was submitted that the respondents are prepared to issue appropriate communications to the petitioners showing the deficiency to which they can submit objections and the same will be considered by the respondents and thereafter Expert Committee will again be deputed. It is further pointed out by referring to the averments in the counter affidavit that after the visit of the Expert Committee, the deficiencies/defects in full have not been cleared before the Appellate Committee. The deficiencies related to the construction/infrastructure facilities. Under clause 12 of the Approval WPC 24884/2010, etc. 13 Process Hand Book, there is a remedy of appeal also to the applicants. With regard to the publication in the website of the petitioners' institution along with approved institutions, it is stated in the counter affidavit that the same is an inadvertent mistake. 20. Learned Senior Counsel Shri Kurian George Kannanthanam, Shri K.P. Dandapani and Shri N. Nandakumara Menon, submitted that the said stand taken in the counter affidavit and in the arguments really does not reflect the correct picture. It is pointed out that the averments in the counter affidavit that the deficiencies have not been cleared, are belied by the proceedings issued by the Appellate Committee and the Regional Committee. It is pointed out that wherever the Appellate Committee wanted a revisit by the Expert Committee, the same was also ordered, which have also been complied with by the petitioners. It is pointed out that the experts who were included in the first Expert Committee and the re-visit Expert Committee are different. The Appellate Committee was headed by a Vice Chancellor. It is further pointed out that the indication that is made in the counter affidavit that the applicants have not produced all the materials before the Appellate Committee for their consideration, is totally incorrect and contrary to the admitted facts. It is pointed out that the applicants were required by the notification dated 15/6/2010 published by the AICTE itself, WPC 24884/2010, etc. 14 to appear before the Appellate Committee, within the time schedule mentioned therein (Ext.P7 in W.P.(C) No.24884/2010). The notification itself directed the applicants to comply/rectify deficiencies and submit the report in the form of hardcopy documents, in the format available and all cases which are not approved by the AICTE, the applicants/representatives will have to personally present before the Appellate Committee with all relevant documents. It is submitted that these documents are also supported by the photographs and videos which have been uploaded in the web-portal. It is therefore submitted that the stand taken that all details were not produced before the Appellate Committee, is totally misconceived. 21. The above arguments have been reiterated by learned Senior Counsel Shri George Thomas Mevada, and learned counsel Shri Jaju Babu and Shri Mayankutty Mather. 22. It is pointed out that in all these cases after the visit of the first Expert Committee, when the Regional Committee considered their report, they have only noted in their reports that the deficiencies are “minor deficiencies”. It is therefore submitted that the deficiencies pointed out are not of serious nature which were duly rectified by the applicants and the demonstration before the Appellate Committee was therefore to their satisfaction and that is why they have accepted the same. It is submitted WPC 24884/2010, etc. 15 that even after the revisit, the Expert Committee members have duly certified the clearance of deficiencies and have not noted any deficiency as remaining to be cleared in respect of any of these petitioners. Hence, it is pointed out that the stand taken is really unwarranted. 23. Apart from the same, Shri George Thomas Mevada, learned Senior Counsel and learned counsel Shri Mayankutty Mather submitted that in a matter like this, on the basis of minor and trivial defects, the Letter of Approval cannot be denied. It is pointed out that as far as the entitlement of an applicant is concerned, it will have to be decided based on appropriate infrastructure, financial stability, appointment of staff and such factors. It is further submitted that the same is clear from the findings rendered by the Division Bench in para 9 of the order, wherein the Division Bench observed that 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.” 24. It is pointed out that all the institutions have completed the buildings, libraries, laboratories and other facilities by making investment running to crores. They have obtained permission/NOC from the Government and have made available the Fixed Deposit amount also to the WPC 24884/2010, etc. 16 AICTE. Therefore, it is pointed out that by asking to them wait for another year, all these will become waste and will cause acute loss to the applicants and others. These arguments were supported by learned counsel appearing for the other petitioners. It may be mentioned herein that in all these cases, the respective Appellate Committees have heard the petitioners on the deficiencies to be cleared which resulted in ordering a revisit by the Expert Committees, in W.P.(C) Nos.24884/2010, 24956/2010 and 25144/2010, whereas in W.P.(C) Nos.24957/2010, 24975/2010 and 26008/2010 no such revisit has been ordered by the Appellate Committee as they were satisfied about the clearance of deficiencies, by recommending the applications. I will now come to the facts in respect of each individual cases. W.P.(C) No.24884/2010 25. The application is for establishment of an Engineering College in Idukki District. The petitioner appeared before the Scrutiny Committee, viz. in Viswesharayya Engineering College, Bangalore. The report of the Scrutiny Committee is produced as Ext.P3. All the deficiencies noted were cured and the details were re-verified by the Scrutiny Committee which fact is evident from the subsequent report Ext.P4. Thereafter, Part B application was submitted through the website and the Expert Committee visited the campus on 26.5.2010. Ext.P5 is the copy of their report wherein certain WPC