IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 17639 of 2008(Y) ------------------------------------------ PETITIONER(S): ------------------------- THE MANAGER, JYOTHI ENGINEERING COLLEGE, CHERUTHURUTHY, TRICHUR DISTRICT. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): --------------------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENJIPPALAM, MALAPPURAM DISTRICT. 2. THE CONTROLLER OF EXAMINATION, UNIVERSITY OF CALICUT, THENJIPPALAM, MALAPPURAM DISTRICT. ADV. SRI. P.C.SASIDHARAN, SC, UTY OF CALICUT FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2009 ALONG WITH WPC NO. 17643 OF 2008 AND CONNECTED CASES, THE COURT ON 23/01/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.17639/2008 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER DTD. 10/02/2003 OF THE GENERAL AND ACADEMIC BRANCH – 1. EXT.P2: COPY OF ORDER DTD. 1/11/2004 OF GENERAL AND ACADEMIC BRANCH – 1. EXT.P3: COPY OF ORDER DTD. 10/05/06 OF ....DO..... EXT.P4: COPY OF COMMUNICATION DTD. 10/07/07 FROM THE 1ST RESPONDENT. EXT.P5: COPY OF JUDGMENT DTD. 26/07/2007 IN WP(C) NO.22545/07 OF THIS HON.COURT. EXT.P6: COPY OF LETTER DTD. 10/09/2007 TO THE 1ST RESPONDENT. EXT.P7: COPY OF CIRCULAR DTD. 22/02/2008 FROMT THE 1ST RESPONDENT. EXT.P8: COPY OF COMMUNICATION DTD. 3/3/2008 TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. -------------------------------- W.P.(C).Nos. 17639,17643, 31848,31849 33407 & 33420/08 -------------------------------- Dated this the 23rd day of January, 2009. JUDGMENT WP(c).Nos.17639/08 and 31848/08 are filed by the Manager, Jyothi Engineering College, Cheruthuruthy, Thrissur District. WP(c).Nos.17643/08 & 31838/2008 are filed by the Manager, Sahrdaya College of Engineering & Technology. WP(C).No.33407/08 is filed by certain students of Jyothi Engineering College and WP(c). No.33420/2008 is filed by the Students of Sahrdaya College of Engineering & Technology. 2. I shall first deal with WP(C).Nos.17639/08 & 17643/08. For the sake of convenience I shall be referring to the facts as pleaded in WP(c).No.17639/08. Petitioner is a self-financing engineering college affiliated to the University of Calicut. Ext.P1 dated 10.2.2003 is the first Wp(c).Nos.17639/08 & conn. -:2:- order of provisional affiliation that was granted to the College for the year 2002-03. It was specified that the affiliation granted is purely provisional for the year 2002-03, the college has to apply for continuation of provisional affiliation for the ensuing years and that selection and admission of students shall be made as per the norms and rules fixed by the AICTE. Ext.P2 order dated 1.11.2004 is the order of provisional affiliation for the year 2004-05. In this order, it was specified that admission to the next academic year shall be made only after obtaining prior permission from the University. Similarly, Ext.P3 order dated 10.5.2006 is the order granting provisional affiliation for the year 2005-06 which also contained conditions similar to what was incorporated in Exts.P1 and P2. 3. According to the management, they made applications for affiliation for the subsequent years also, but however, orders were not issued by the University. While so, it is alleged that the Government of Kerala started pressurizing the Managements to surrender 50% of the seats and to admit Wp(c).Nos.17639/08 & conn. -:3:- students in that quota at fees applicable to the students in the Government Colleges. This was resisted by the management and they did not enter into a seat sharing or fee sharing agreement. It is stated that provoked by the defiant attitude on the part of the management, acting upon the directions of the Government, the Registrar of the University issued Ext.P4, relevant portion of which, is extracted below for reference. “It is mandatory that selection and admission of students to the course be made from the admission scheduled by the Commissioner for Entrance Examination. In the affidavit cited as 3, the Principal and the Manager of the Educational Agency had agreed to carry out faithfully, the provisions of the University Act, Statute, Ordinances, regulations and directions issued by the University from time to time and they will not indulge in any activity detrimental to the interest of the University as well as the student community. If they have done anything against the interest of the University, the University can proceed with strict action including the withdrawal of affiliation and they will not approach any agency for the redressal of their grievances. As you are violating the directions of the University/Govt and acting against the affidavit executed, I am to inform you that continuation of provisional affiliation for the ensuing years will not be granted.” Wp(c).Nos.17639/08 & conn. -:4:- 4. Ext.P4 order was challenged before this court in WP (C).No.22545/07. That writ petition was disposed of by Ext.P5 judgment taking note of the admission of the University that the Registrar who issued Ext.P4 did not have power to issue such orders. Accordingly, the order was quashed without prejudice to the right of the University to proceed further in accordance with law. 5. The Petitioner submits that, in the meanwhile also there was no response to their applications for affiliation and therefore by Ext.P6 they requested the University to grant affiliation for the academic years 2006-07 and 2007-08 for which they had already made application. While the University continued in its inertia, it issued Ext.P7 circular dated 22.2.2008, directing the managements to submit a copy of the provisional affiliation order/continuation of the provisional affiliation order of the same year/permanent affiliation order as the case may be, along with the application for examinations from March, 2008 examination onwards. As the Wp(c).Nos.17639/08 & conn. -:5:- petitioner also had to present their students for annual examination and as per Ext.P7, the University directed the Management to produce the orders of affiliation along with the applications for examination, the Petitioner again submitted Ext.P8, to the University, requesting to issue orders extending the provisional affiliation for the year 2006-07 and 2007-08. It is stated that there was no response on the part of the University. 6. While the position stood as such, as in the previous years, the petitioner admitted students and they underwent their courses. At the end of the first year, the college applied to the University for the annual examinations and paid fee at the prescribed rates. However, almost at the eve of the examinations, which were to commence on 19.6.2008, the Principal received telephonic message from the University that the first year students, who were admitted in the academic year 2007-08, will not be permitted to appear for the examinations. 7. It is there upon that they filed this writ petition before Wp(c).Nos.17639/08 & conn. -:6:- this court on 12.6.2008 and on 17.6.2008 this court passed an interim order directing the respondents to permit the first year students of the petitioner college to appear for their University examinations provisionally and subject to the result of the writ petition and further directing that their results shall not be published except after attaining orders from this court. Accordingly the students appeared for the examinations. It is stated that long thereafter the University issued a press release on 3.9.2008, which is produced as Ext.R1(a) in the counter affidavit in WP(c).No.31849/08 that the college is not affiliated. 8. The main contention raised by the Senior counsel for the petitioner was that the college having made attempts in time for its continued provisional affiliation, the University had the obligation to pass orders and as the University has not done so, the college is entitled to have continued provisional affiliation for that reason itself. Counsel placed heavy reliance on the judgment of this court in Jubilee Mission Medical College & Research Institute V. University of Calicut Wp(c).Nos.17639/08 & conn. -:7:- (2008(4) KLT 966. On the other hand the stand of the University is that the petitioner was granted provisional affiliation for starting engineering college during the academic year 2002-03 and that the same was conditional. It is stated that a perusal of Exts.P1 to P3 would show that the College could have granted admission to students only after affiliation is obtained. It is stated that the college did not have continued affiliation from the year 2006-07 onwards and therefore admission granted to students is against the order of affiliation and also the provisions of the University Statutes which prohibits admission on an anticipatory basis. Thus the contention raised by the counsel for the University is that the University is justified in its stand that the students are not entitled to appear for the examination for the reason that to present students for examination is a privilege available only to affiliated colleges. 9. In so far as WP(c).No.17643/08 filed by Manager, Sahrdaya College is concerned, the facts are identical. 10. In so far as WP(c).Nos.31848/08 and 31849/08 are Wp(c).Nos.17639/08 & conn. -:8:- concerned these cases are also filed by the Manager, Sahrdaya College of Engineering & Technology and the Manager, Jyothi Engineering College respectively. In these cases, the issue is in relation to the students who were admitted during the academic year 2006-07. In so far as the 4th semester students are concerned, their examination was to start on 29.10.2008 and in so far as the 6th semester students are concerned their examination was to commence on 30.10.2008. On 28.10.2008, the University issued Ext.P14, which is extracted below for reference. “As you know, the 4th and 6th semester B.Tech regular/supplementary examinations are commencing from 29.10.2008 and 30.10.2008 respectively. You have not produced the continuation of Provisional Affiliation orders of the current academic year till date. I am therefore informing you that the Hall Tickets/Question paper for the above said examinations of June 2008 will not be forwarded to your college.” 11. Since the University thus informed that hall tickets will not be issued for the regular/supplementary examination, these writ petitions were filed on 29.10.2008 and this court passed an interim order directing the University to permit the Wp(c).Nos.17639/08 & conn. -:9:- students to participate in the examinations with effect from 30.10.2008 as per the schedule of examination already drawn by the University. It was clarified that their participation in the examination will be provisional. Thus the 4th semester students could not appear in the examination held on 29.10.2008, and the result of all students are yet to be published by the University. 12. In so far as WP(c).No.33407/08 are concerned, the petitioners are the students of Jyothi Engineering College. petitioners 1 to 3, commenced their studies in the academic year 2002-03 and completed in 2006-07. Similarly the petitioners 10 to 25 who commenced their studies in 2004-05 completed their course in 2007-08. 13. In so far as the petitioners in WP(c).No.33420/08 are concerned, they are the students in Sahrdaya College of Engineering & Technology. Petitioners 1 to 9 commenced their studies in 2003-04 and completed in 2006-07. petitioners 10 to 30 also commenced their studies in 2004-05 and completed in 2007-08. Wp(c).Nos.17639/08 & conn. -:10:- 14. All the Petitioners in the aforesaid two cases registered for the 4th semester supplementary examination and they were all issued hall tickets. However, in view of the order dated 28.10.2008, referred to as Ext.P14 in WP(c). No.31848/08, examination was not held on 29.10.2008 and hence they could not appear for the same. However, on the strength of the interim order passed by this court on 29.10.2008 in WP(c).Nos.31848/08 and 31849/08, these petitioners also appeared for the examinations held since 30.10.2008. According to these petitioners at the time when they commenced their course, the college had affiliation and therefore the controversy between the University and the Management, could not have affected their right to appear for the supplementary examination. In these writ petitions the prayer they have made is that the University should be directed to conduct the 4th semester B. Tech and supplementary examinations notified to be held on 29.10.2008 for the candidates who have registered their names showing the aforesaid colleges as their centres for Wp(c).Nos.17639/08 & conn. -:11:- examination and to publish the results along with the results of examination as notified by the University. 15. In these two cases, the defence of the University is that the colleges did not have affiliation. However, during the course of the arguments the counsel for the University took the stand that they had sent hall tickets and it was the responsibility of the college concerned to conduct examination for the petitioners in WP(c).No.33407/08 and WP (c).No.33420/08. According to them, if the petitioners lost the opportunity to appear in any examination, the colleges are responsible and that if a complaint in that behalf is received the University is willing to take action against the college. 16. This submission was strongly refuted by both the students as well as the Managements, mainly relying on the communication dated 28.10.2008( referred as Ext.P14 herein above) where it is stated that the University will not be sending hall tickets/question papers for the regular/supplementary examinations. The management contends that the University did not send the question papers Wp(c).Nos.17639/08 & conn. -:12:- and it was therefore that the students lost their opportunity. In this context a development that took place during the pendency of the writ petition needs to be noticed. The University issued a notification on 5.1.2009 which is extracted below for reference. “In continuation to the notification of even No. dated 13.11.2008, it is notified for the information of all concerned that the B.Tech Fourth Semester Examination (2000 & 2004 admission) scheduled on 29th October 2008 at Sahradaya Engineering College and Jyothi Engineering College is re-scheduled to be conducted on Saturday 17th January 2009 at the respective centres from 9.30 am to 12.30 pm.” 17. From the notification it can be seen that the University has re-scheduled the examination which was scheduled on 29.10.2008 to 17th January, 2009 at the respective centres. It was made clear by the counsel for the University that all students who lost their opportunity to appear in the examination on 29.10.2008 are by this notification permitted to appear for the examination held on 17th January, 2009. 18. As already noticed, except in WP(c).Nos.33407/08 and 33420/08, in the other four cases the Petitioner Wp(c).Nos.17639/08 & conn. -:13:- managements contended that, they having made application for affiliation, it was the duty of the University to have passed orders continuing their affiliation and that University having not passed any orders, the provisional affiliation already granted will continue till orders are passed. On the other hand, the University resists this argument by contending that the Petitioner colleges did not have continued provisional affiliation for the years subsequent to 2006-07. It is the correctness of this contention which needs mainly to be examined. 19. Sri. P.C Sasidharan, during the course of his argument submitted that the academic year has been defined in Chapter 2(1), First Ordinance as commencing on first of June and ending with 31st March of the succeeding year. According to him, going by the admitted case of the Petitioners in WP(c).No.1763/08, the application for affiliation for the academic year 2006-07 was made only on 26.12.2006. He also submitted that the application for the year 2007-08 was made only on 18.7.2007. According to him, the case of Wp(c).Nos.17639/08 & conn. -:14:- the Petitioner in WP(c).No.17643/08 also stands on a similar footing. He contended that the time limit for making an application is specified in statute I Chapter XXIII of the aforesaid Statute and in terms on clause 19(1) of the University Statute the College could not have granted admission in anticipation of affiliation. He contended that the University's obligation to pass orders on application for affiliation before the commencement of the academic year is coupled with a duty on the part of the Managements to make application to the University well ahead of the commencement of the academic year and within the time specified in Chapter XXIII of the Statute. It is on that basis he contended that, the judgment of this court in 2008(4) KLT 966 is inapplicable to the case in question. He therefore proceeded to contend that the colleges did not have the affiliation and the right to present students for examination being a privilege available only to affiliated colleges, the petitioner colleges are not entitled to present their students for examination. Wp(c).Nos.17639/08 & conn. -:15:- 20. It is the correctness of the aforesaid contention of the standing counsel which is to be resolved in this writ petition. Obviously, the colleges in question are recognized by the All India Council for Technical Education constituted under the AICTE Act. In fact, referring to the counter affidavit, the standing counsel for the University even went to the extent of arguing that the Petitioners did not have AICTE recognition and that it was therefore that they are silent on that aspect in the pleadings. In order to dispel that impression, Senior Counsel for the Manager made available copies of the proceedings issued by the AICTE for the period from 2002-08, granting recognition to both the colleges. Once a college is recognized by the AICTE, the time frame incorporated in Chapter XXIII Statute-I is inapplicable to such college. It has been so held by the Apex Court in State of Maharashtra V. Santdnyaneshwar Shikshan Shastra Mahavidyalaya & Ors. (2006(9) SCC Page-1). This position has been reiterated by a Full Bench of this court in Vikram Sarabhai E. Trust & B. Ed College V. University of Calicut (2008(2)KLT 1027). In that Wp(c).Nos.17639/08 & conn. -:16:- case, referring to corresponding provisions in the NCTE Act, the Apex Court held that the provisions of the University Act would not apply to an institution governed under the NCTE Act and that as per the scheme of the said Act, once recognition has been granted by NCTE under Section 14(6) of the Act, every University is obliged to grant affiliation to such institutions. In the light of this binding pronouncement of the Apex Court, I must accept the contention of the petitioners, the time frame incorporated in Statute-I of Chapter XXIII, can have no relevance in so far as the Petitioner colleges are concerned, so long as it enjoys AICTE approval. 21. I shall now proceed to examine whether in the past, the University was insisting on the time frame in respect of the colleges like the petitioner. As already noticed, in terms of the Ist Ordinance, academic year commences on the Ist of June of every year. Ext.P1 is the order of provisional affiliation issued to the Petitioner in WP(c).No.17639/08 for 2002-03. That order is dated 10.2.2003. By Ext.P2, continued provisional affiliation for the year 2004-05 was granted and Wp(c).Nos.17639/08 & conn. -:17:- that order is dated 1.11.2004. Similarly, Ext.P3 order, granting provisional affiliation for the year 2005-06 is issued on 10.5.2006. Similarly in so far as the petitioner in WP(c). No.17643/08 is concerned, Ext.P1 order of provisional affiliation for the year 2002-03 was issued on 10.2.2003. Ext.P3 continuation of provisional affiliation for 2004-05 is dated 4.2.2005 and Ext.P3, for the year 2006-07 is dated 22.11.2006. Along with I.A. No.457/09 in WP(c).No.31849/08 Petitioner produced two other orders as Exts.P14 and P15 therein. Ext.P14 is the order granting provisional affiliation for the year 2006-07, to Vidya Academy of Science and Technology, Trissur for starting MCA course. This order is dated 4.10.2006. Ext.P15 is the order continuing the affiliation for the year 2007-08 and that order is dated 15.1.2008. 22. Evidently, apart from the order of affiliation that was issued for the academic year 2002-03 and all other orders are issued long after the commencement of the academic year. Wp(c).Nos.17639/08 & conn. -:18:- 23. In addition to this it should also be noticed that it was for the first time that the University issued circular dated 22.2.2008 requiring the colleges to enclose orders of provisional affiliation along with the applications for examination from 2008, March onwards. In this circular it is stated inter alia thus, “More over, applications for Continuation of Provisional Affiliation of the course should be submitted at the beginning of every academic year from 2008-09. Colleges which have not applied for Continuation of Provisional Affiliation upto 2007-08 should apply for the same forthwith.” Here again, for the first time, the University was demanding that the applications for continuation of provisional affiliation should be made before the commencement of the academic year. 24. Petitioners also refer to Ext.P16 produced along with I.A.NO.457/09 in WP(c).No.31849/08. This order was issued by the University on 29.4.2008 and is extracted below in full for reference. Wp(c).Nos.17639/08 & conn. -:19:- “Certain affiliated Colleges are not applying for continuation of Provisional Affiliation to the courses for each academic year in time after getting provisional affiliation. The Syndicate considered the matter vide Item No.2008.239(confirmed vide Item No.2008.246 on 3.4.2008) and resolved to impose a fine on the colleges who fail to apply for Continuation of Provisional Affiliation to the courses in time in each academic year. Sanction has, therefore, been accorded by the Vice-Chancellor implementing the decision of the Syndicate imposing fine on the colleges who fail to apply for Continuation of Provisional Affiliation to the courses in time in each academic year as follows: 1) Government and Aided Arts and Science/Oriental title Colleges Rs.1,000/- per Annum. 2) Unaided Arts and Science/Oriental title Colleges Rs.2,000/- per Annum. 3) Professional Colleges Rs.5,000/- per Annum. Orders are issued accordingly. Sd/- (DEPUTY REGISTRAR(G&A I) FOR REGISTRAR TO The Principals of all Affiliated Colleges. (with the request to apply for Continuation of Provisional Affiliation to the Courses before July of every academic year)” Wp(c).Nos.17639/08 & conn. -:20:- 25. From this order, it can be seen that the University has recognized that there are affiliated colleges which were not even applying for continuation of provisional affiliation for each academic year in time. This issue was considered by the Syndicate and instead of taking any action against the colleges, as in these cases, the Syndicate resolved to impose fine on the colleges which failed to apply for continuation of provisional affiliation in time in each academic year. It was in pursuance to that resolution of the Syndicate that Ext.P16 was issued, with a request to the members of the affiliated colleges to apply for continuation of provisional affiliation to the course before July of every academic year, which again is after the commencement of the academic year. 26. Therefore, not only that the University was not issuing orders of affiliation, before the commencement of the academic year, but the University has also accepted that there are colleges which did not apply for continuation of provisional affiliation and decided to levy fine on them for granting continued affiliation. These documents therefore Wp(c).Nos.17639/08 & conn. -:21:- substantiate the contention of the petitioners that the University was never insisting that the affiliated colleges should make applications for continuation of their provisional affiliation before the commencement of the academic year or within the time frame as indicated in Statue-I of Chapter XXIII of the University Statute. 27. These factual positions cannot be disputed and are in fact not disputed. If that be so, the question is whether the University was justified in refusing to admit the students to the examination conducted. In my view, it is not possible for the University to take such drastic and ill-advised step. 28. Thus the situation in these cases is that the colleges have in fact applied for continuation of provisional affiliation and the University has not passed orders thereon. If that be so, that the colleges are entitled to proceed as if they enjoyed continued provisional affiliation. This question has already been considered by a learned single Judge of this court in Jubilee Mission MedicalCollege V.Universityof Calicut)2008(4) KLT 966, where in paragraph 22 and 23 it has been held thus. Wp(c).Nos.17639/08 & conn. -:22:- “22. I have already referred to the cut off date mentioned in the Statute in Chap.XXIII in the matter of application for affiliation and with reference to the date within which the Syndicate will have to take a decision under Cl.6 of Chap.XXIII of the First Statute. Since the currency of affiliation is a sine qua non for the continued legitimacy of the courses being offered and run in any affiliated institution, it is obligatory on the part of the University to take a