IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 36109 of 2010(K) ----------------------------------------- PETITIONER(S): ------------------------ THANGAL KUNJU, MUSALIAR COLLEGE OF ENGINEERING, KOLLAM, REPRESENTED BY THE CHAIRMAN OF THE GOVERNING BODY, SHAHAL H.MUSALIAR. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, THIRUVANANTHAPURAM - 695 001. 2. THE VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM- 695 001. R1 & R2 BY ADV. SRI. M.RAJAGOPALAN NAIR, SC, UNIVERSITY OF KERALA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ANTONY DOMINIC, J. ------------------------------- W.P.(C).No.36109 of 2010 ------------------------------- Dated this the 8th day of December, 2010. J U D G M E N T The main prayers sought in this writ petition are to quash Exts.P23 and P24 and to direct the respondent university to issue order extending the affiliation to M.Tech (Mechanical) Computer Integraded Manufacturing and M.Tech (Electrical and Electronics) Industrial Instrumentation and Control, for the academic year 2010-2012, for which Ext.P18 application was submitted by the petitioner. 2. Petitioner is an aided college, affiliated to the respondent University, with B.Tech and M.Tech courses, with the approval of the AICTE. It is stated that in 2006-07, AICTE granted approval to start two unaided M.Tech Degree courses in the aforesaid disciplines, with an intake of 18 students for each of the courses. 3. However, by Ext.P2 order, affiliation sought was declined by the University, relying on a resolution of the Senate, passed in its meeting held on 30.11.2002, on the ground that, grant of unaided courses in aided colleges will create crisis in the field of 2 W.P.(C).No.36109 of 2010 higher education. According to the petitioner, subsequently, based on Ext.P3 order passed by this court in W.P.(C)No.26554 of 2006, affiliation was granted and thereafter, on the basis of Ext.P27 application, seeking extension of the affiliation, the University issued Ext.P4 order dated 3.1.2007, conveying that the Vice Chancellor has accorded sanction to grant provisional affiliation on an unaided basis during the year 2006-07, without any financial commitment on the part of the government or the University. 4. While so, Ext.P5 show cause notice was issued, calling upon the petitioner to show cause why the provisional affiliation granted to the unaided M.Tech degree courses shall not be withdrawn. Among the other reasons stated in the notice, one of the reason stated is that, the University Inspection team had pointed out the inadequate infrastructural and instructional facilities for the conduct of the unaided courses. The petitioner submitted Ext.P6 reply. It should be stated that although various contentions were raised, the petitioner did not have a case that 3 W.P.(C).No.36109 of 2010 any separate infrastructural or instructional facility was provided for the unaided courses. Thereafter the University issued Ext.P7 order, conveying the Syndicate's decision to suspend the provisional affiliation granted to the two unaided M.Tech courses for the academic year 2007-08. 5. It is stated that at that stage, the petitioner filed W.P.(C) No.8853/08 before this court. Subsequently, a representative of the petitioner was heard and the Syndicate considered the matter again in its meeting held on 27.2.2008 and resolved to suspend affiliation granted to the two unaided M.Tech courses for a period of one year. W.P.(C)No.8853/08, which was then pending, was closed by this court, as per Ext.P9 judgment, dated 10.7.2009, taking note of Ext.P8 order and also the fact that by that time, the period of suspension for 2007-08 as per Exts.P7 and P8 had worked itself out. 6. Seeking continuation of the provisional affiliation for the academic year 2009-10, the petitioner submitted Ext.P10 application and from the submissions made, it is disclosed that, 4 W.P.(C).No.36109 of 2010 without waiting for orders on Ext.P10 application, students were admitted for the aforesaid M.Tech courses. On receipt of Ext.P10 application, the University issued Ext.P11 communication, seeking clarifications with respect to 10 issues, including as to ' whether, any instructional, infrastructural or administrative facilities of the aided stream in the college are being used for the said unaided courses' (emphasis supplied). In reply, the petitioner submitted Ext.P12, in which, in so far as the aforesaid query is concerned, the petitioner did not state that any separate infrastructural, instructional or administrative facility has been provided for the unaided courses. 7. At that stage, complaining that, on account of the delay in finalising the proceedings pursuant to Ext.P11, orders were not passed on Ext.P10 application made by the petitioner for affiliation, W.P.(C) No.8219/10 was filed before this Court. That writ petition was disposed of by Ext.P14 judgment, directing the 5 W.P.(C).No.36109 of 2010 Vice Chancellor to take a final decision in the matter, within the period specified in the said order. In compliance with the aforesaid order, the Vice Chancellor issued Ext.P15 order dated 4.5.2008, the relevant part of which, reads as under :- “ Adverting to the reference cited as (1) above, I am to inform you that the Vice- Chancellor was constrained to accord sanction for granting provisional affiliation to the two unaided M.Tech Degree Courses, restarted by the College, viz., (1) Mechanical Engineering - Computer Integrated Manufacturing (2) Electrical & Electronics Engineering-Industrial Instrumentation and Control for the present batch only, ie., during the academic year 2009-10, which were suspended by the University vide this office letter, cited as (2) above, subject to the remittance of the prescribed fee for the said courses and the approval of the Government. The College shall also obtain express permission from the University for starting the above said programmes in the coming academic years.” (emphasis supplied) 8. On expiry of the period of affiliation, the petitioner again submitted Ext.P18 application, seeking continuation of the affiliation for the year 2010-11. It is important to note that, in this 6 W.P.(C).No.36109 of 2010 application, unlike in the previous applications, which are available on record, the petitioner did not mention whether the courses, in respect of which continued affiliation was sought, were in the aided sector or in the unaided sector. In this context, it should also be mentioned that, it is the specific case of the Standing Counsel for the University, who has also produced the records, that the fee remitted by the petitioner alongwith the application was the fee prescribed, for aided courses and not for unaided courses. Pursuant to Ext.P18 application, the Inspection Commission of the University inspected the premises and submitted Ext.P17 and P17(a) reports, with recommendation for granting affiliation to the petitioner. On that basis, the University issued Ext.P16 letter of consent, to grant affiliation, subject to obtaining recognition by the petitioner from AICTE and fulfillment of the conditions specified by the State Government and the University. It was also specified that, the grant of the letter of consent shall not entitle the institution to make admissions, which shall be made 7 W.P.(C).No.36109 of 2010 only after Provisional affiliation is granted by the University. According to the Standing Counsel for the University, on the basis of the letter of consent, as in the previous year, this year also the petitioner proceeded to make admissions, without awaiting for the order of affiliation from the University. 9. Thereafter, petitioner was issued Ext.P20 show cause notice, under Statute 14 of Chapter 24 of the Kerala University First Statutes 1977, stating that 'the University has noticed that the college is initiating steps to admit students for the aforesaid courses during the academic year 2010-12, by issuing advertisement in newspaper, for which the University had not granted affiliation or permission'. The petitioner submitted Ext.P21 reply, justifying its stand. 10. Once again, the petitioner approached this court by filing W.P.(C)No.33366/10, seeking a direction to the University to issue order extending affiliation for the academic year 2010- 12. In that writ petition, this court passes Ext.P22 order, directing the university to take a decision on Ext.P18 application, made by 8 W.P.(C).No.36109 of 2010 the petitioner for continuation of the affiliation. In pursuance to the above, the Vice Chancellor issued Ext.P23 order, the relevant portion of which, reads as follows :- “ Based on the local enquiry report, the Syndicate at tis meeting held on 25.2.2010 resolved to grant Letter of Consent to start the M.Tech Courses in Mechanical Engineering - Computer Integrated Manufacturing and Electrical & Electronics Engineering-Industrial Instrumentation and Control along with two other Courses ie; B.Tech - Applied Electronics and Instrumentation and B.Tech - Computer Science and Engineering (Part Time) for the academic year 2010-11 on an Aided basis. Accordingly Letter of Consent was issued and the matter was informed to the Government for the views. The Government has not issued NOC for the same on Aided basis. ............ The Syndicate at its meeting held on 19.3.2010 resolved to conduct an inspection in the said College to assess the facilities available in the College for the said Courses. Although the Subject Experts opined that sufficient facilities exist in the College (Ext.P17 in writ appeal), the Syndicate Members Dr.K.A.Andrew and Sri.C.Bhaskaran submitted a Report stating that the policy of the Syndicate does not permit to start self-financing programmes in Aided College. Hence they did not recommend the Courses applied. .............. In view of the above, the Application for Affiliation of new Courses in the TKM College of Engineering Kollam was considered. Since the Report of the Inspection Commission pointed out that the policy of the Syndicate does not permit to start self-financing programmes in aided College and had not recommended 9 W.P.(C).No.36109 of 2010 the sanctioning of the Courses and as the recommendation of the University Inspection team is in accordance with the resolution of the Senate during August 2002 which was reiterated by the senate at its meetings held on 12.1.2007 and 26.3.2008 ie; not to grant unaided courses in aided colleges and the Letter of Consent issued by the University is to start the courses on aided basis for which the State Government had not issued NOC and as the Vice Chancellor has no powers to override the decisions of the Senate which is the supreme decision making body of the University, the request for the grant of provisional affiliation to the M.Tech Degree Courses in Mechanical Engineering - Computer Integrated Manufacturing and Electrical & Electronics Engineering - Industrial Instrumentation and Control on Un-aided basis in the TKM College of Engineering, Kollam cannot be granted.” Enclosing Ext.P23 proceedings, the University issued Ext.P24 communication to the petitioner. It is in these circumstances this writ petition is filed with the prayer noticed above. 11. From Ext.P23 order, what is disclosed is that, Ext.P18 application made by the petitioner was for affiliation on aided course and that, it was on that basis, that Ext.P16 letter of consent was issued to the petitioner, which was also forwarded for ascertaining the views of the Government and that the Government have not issued NOC for the same. It is also evident from this order that, in so far as the claim of the 10 W.P.(C).No.36109 of 2010 petitioner for affiliating the courses on unaided basis is concerned, way back in August 2002, the Senate of the University had already decided, which was reiterated on 12.1.2007 and on 26.3.2008, not to grant unaided courses in aided colleges. Therefore, according to the respondents, as far as aided course is concerned, the Government have not issued NOC and as far as courses on unaided basis is concerned, the Senate decision does not permit the petitioner to establish the college, making use of the infrastructural and other facilities at its aided college. 12. In this factual background, I shall now proceed to examine the legality of Exts.P23 and P24 orders challenged in the writ petition. 13. So far as the non-issuance of NOC by the State Government mentioned in Ext.P23 is concerned, as can be seen from the pleadings, in this writ petition the petitioner is not seeking any direction as against the State Government and has not even impleaded the State Government in this writ petition. 11 W.P.(C).No.36109 of 2010 This issue was not argued also. Therefore, the correctness or otherwise, of that issue does not arise for consideration in this writ petition. 14. As far as affiliation of unaided courses is concerned, stand of the University is that, such courses cannot be permitted in an aided college and that there should be separate, infrastructural, instructional and other facilities. This, the stand of the University is based on, the Senate decision of August 2002 and this decision was reiterated by the Senate in 2007-08. This policy decision of the Senate is also not challenged by the petitioner. 15. It is the case of the petitioner that the affiliation was initially granted and subsequently extended for the unaided M.Tech Courses, for starting such courses in the aided college. However, none of the records produced by the petitioner show that at any point of time the University has consciously granted any such permission, contrary to the decision of its own Senate. On the other hand, Ext.P15 shows that affiliation was extended, 12 W.P.(C).No.36109 of 2010 only to save the students and clarifying that it is only for that academic year. Therefore, so long as the senate decision stands as such the University cannot be expected to permit the petitioner to have unaided courses, without separate infrastructural or instructional facilities. 16. The petitioner has a case that the AICTE has granted permission, as per Ext.P19 and as the AICTE was satisfied with the infrastructural and other facilities, the University can not decline affiliation. However, having regard to the provisions of the Kerala University Act, and Statutes, I am inclined to think that it is open to the University to insist on the infrastructural and such other facilities required and therefore, I do not find any merit in this contention either. It was further argued that, in some aided colleges, unaided courses, utilising their infrastructural or instructional facilities, have been permitted. First of all, apart from making a sweeping statement, petitioner has not disclosed any particulars of this assertion to call upon the respondents to answer the same. That apart, even if it is 13 W.P.(C).No.36109 of 2010 factually correct, so long as the Senate decision remains unchallenged, the affiliation granted is illegal and an illegality committed cannot be claimed as a precedent to be followed in later cases. Therefore, this contention also cannot be accepted. 17. Thus, so long as the decision of the Senate is as above and as the petitioner has no case that they have separate or instructional or infrastructural facilities for starting the M.Tech courses on unaided basis, I do not find any illegality in the stand taken by the University in Ext.P23 order. Writ petition fails and the same is dismissed. ANTONY DOMINIC, Judge. ami/