IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.09.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.15344 OF 2009 and M.P.Nos.1 and 2 of 2009 M/s.International Maritime Academy rep. By its Managing Director Mr.J.Senthil Kumar. .. Petitioner vs. Indian Maritime University rep. By its Vice Chancellor East Cost Road Uthandi,Chennai 600 119. .. Respondent Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein to call for records pertaining to the impugned order No.IMU/VC/2009 AFFIL dated 17.7.2009 passed by the respondent University and quash the same and direct the respondent University grant provisional affiliation for the Commencement of the 4-year Course in B.Tech (Naval Architecture and Ocean Engineering) by the Petition Academy and fill up the approved seats. For petitioner : Mr.R.Muthukumarasamy,Sr.Counsel for Mr.M.S.Ramesh For respondent : Mr.A.Muralidharan ORDER This writ petition is directed against the order of the respondent University dated 17.7.2009 and for consequential direction to grant provisional affiliation to the petitioner Institution for the commencement of Four year course in B.E. (Naval Architecture and Ocean Engineering) and fill up the approved seats. 2. The petitioner Academy viz., International Maritime Academy was established in the year 2000 and the Academy has been awarded https://hcservices.ecourts.gov.in/hcservices/ certificate for quality training by the Indian Registrar of Quality Systems (IRQS) with ISO 9001-2000 and out of 120 Maritime Institutions in India, the petitioner has been awarded 'very good' status by the Investment Information Credit Rating Analysis (ICRA). As one among 15 Institutions, the petitioner Academy is at present having 560 students. 2(a). The respondent, being an affiliating and teaching University, called for applications for affiliation and approval of various courses, including the 4 year course in B.E. (Naval Architecture and Ocean Engineering). Since the petitioner has been conducting various courses for the past 9 years, it is deemed to have been approved as per the respondent's guidelines. On 27.4.2009 the petitioner applied for affiliation of the above said course with the intake capacity of 80 students per year. 2(b). Pursuant to the said application, the internal members of the Academic Council/Inspection Committee of the respondent University carried out inspection of the petitioner Institution on 23.5.2009 in respect of facilities required for the grant of affiliation and recommended that the provisional affiliation may be granted to the petitioner for the said B.E. (Naval Architecture and Ocean Engineering) course with intake of 80 students. The Inspection Committee has not found any defects during the course of inspection. 2(c). It is stated that at request of inspection team, the details of faculty with timetable for commencement of the course has been furnished and therefore, the entire infrastructure has been made in full, according to the petitioner. The compliance report has been sent on 11.6.2009. The course is to commence from 3.9.2009, however, the respondent has not chosen to pass any order. 2(d). In those circumstances, the petitioner approached this Court by filing W.P.No.12565 of 2009 and the said writ petition was disposed of by this Court by order dated 10.7.2009, by directing the respondent to pass orders on the application of the petitioner dated 27.4.2009 seeking for affiliation of B.E.(Naval Architecture and Ocean Engineering) course. It was thereafter, the respondent University by the impugned order, rejected the petitioner's application for affiliation. 3. One of the main reasons for passing the impugned order is that the University by letter dated 10.7.2009 wanted the petitioner to confirm as to the acceptance of number of seats by next day i.e. on 11.7.2009 at 11.00 hours, which was not complied with. The reason given by the petitioner in the affidavit is that the respondent University invited the petitioner on 2.7.2009 to meet the Vice Chancellor at 11.00 hours on 3.7.2009 for a discussion regarding affiliation and also for seat sharing. https://hcservices.ecourts.gov.in/hcservices/ 4. On 3.7.2009, the petitioner met the Vice Chancellor of the respondent University and assured regarding allocation of number of seats to be filled up by the respondent University. Again, on 9.7.2009, the petitioner sent a confirmation letter stating that the respondent is at liberty to fill up the seats as per the ratio that was mentioned in the writ petition filed by the petitioner as stated above and was not objected to or countered on the hearing date viz., 10.7.2009. Therefore, according to the petitioner, the said reason is not proper. It is stated that the said B.E.(Naval Architecture and Ocean Engineering) is an existing course which is conducted in IIT Kharagpur, IIT Madras, CUSAT and Andhra University. 5. It is also stated that the respondent University itself has granted affiliation to the National Ship Design Research Centre (NSDRC), Visakhapatnam, as it is a constituent college for conducting the said course. Therefore, the reason assigned in the impugned order for rejecting the application that it is required to be placed before the Planning Board/Academic Council for deliberation is not correct. It is stated that 150 students who are qualified with CET examinations are waiting to join and therefore, the rejection of the application of the petitioner Academy is a discrimination while the respondent University has granted affiliation to one of its constituent colleges. The impugned order is challenged on the ground that it is discriminatory, violative of Article 19(1)(g) of the Constitution of India and arbitrary since no show-cause notice was given before rejecting the application and it is mala fide. 6. In the counter affidavit filed by the respondent, it is stated that the recommendation of the Inspection Committee is not final. Further, it is stated that the Inspection Committee has given a report and made some observations and the report of the Inspection Committee has to be studied by the Academic Council, Executive Council and Planning Board apart from the Board of Affiliation and Recognition to recognise under section 23 of the Indian Maritime University Act, 2008. 6(a). It is stated that as far as National Ship Design Research Centre (NSDRC) is concerned, it is an existing institution, which was merged with the respondent University as per section 49 of the Indian Maritime Act, 2008 and therefore, the said institution forms part of the University itself. The respondent is bound by the said 2008 Act and it is prerogative of the Board of Affiliation and Recognition to admit the colleges and institutions to the privileges of the University. The petitioner cannot make inroads into the powers and privileges of the University by making false allegations. 6(b). It is also stated that Visakhapatnam campus is a University campus and the University has not granted affiliation to conduct B.E. (Naval Architecture and Ocean Engineering) to any other https://hcservices.ecourts.gov.in/hcservices/ institution and therefore, according to the respondent, there is no discrimination. 7. Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner would submit that once the respondent has received the application for affiliation and the Inspection Committee report has been received, the University can reject affiliation only for non- compliance of the requirements, but it is not open to the University to say that it would not function as per the statute as it would amount to the failure of performance of function by a legally constituted statutory authority and it is not open to the respondent University to say that the University has to make study about the course or about the students' future which is not its concern. 7(a). It is his contention that even by merger of National Ship Design Research Centre (NSDRC), Visakhapatnam by the Indian Maritime University Act, 2008, the said institution, as a constituent college of the respondent University and is running the said course, for which affiliation has been granted and it is not known as to how the respondent seeks time to study about the implication of the course as well as students' future. 8. On the other hand, it is the contention of Mr.A.Muralidharan, learned counsel appearing for the respondent University that to grant affiliation is a privilege of the University, which cannot be claimed by the petitioner as a matter of right. Ultimately, it is his contention that it is for the University to act or not to act, and not for the petitioner to compel the University to grant affiliation. That is also the stand taken in the counter affidavit. 9. At the outset, it is important to note that the respondent University, which has been created under the statute viz., Indian Maritime Act, 2008, has taken a stand that it is the prerogative power of the Board of Affiliation and Recognition to admit colleges and institutions and it is a privilege of the University. The contention of the learned counsel for the respondent is that no one can compel the respondent University to grant affiliation. It is true that no institution can conduct any course without affiliation being granted by the University. To say it in different way, the University created by a statute having received application for affiliation and having sent its Inspection Committee, would not refuse to grant affiliation for any reason which would be antithesis to the concept of statutory responsibilities of the statutory authority like the respondent University. In other words, the respondent University having been constituted under law would not shirk its responsibility to grant affiliation under the guise that it is concerning about the future of students and the implication of the course to be affiliated and such stand would make the very https://hcservices.ecourts.gov.in/hcservices/ constitution of the statutory University a mockery. The stand taken in the counter affidavit as well as the contention of the learned counsel for the respondent is highly deplorable. 10. First of all, it is not in dispute that the petitioner institution has made application for affiliation with the respondent University on 27.4.2009 in the prescribed form. It is also not in dispute that based on the said application, an inspection team was sent to inspect the petitioner institution about the availability of infrastructural facilities. It is seen that the Academic Council members have conducted inspection and submitted the report dated 23.5.2009 for many courses. The reasons given for rejection of application for affiliation to the petitioner institution to conduct BE (Naval Architecture and Ocean Engineering) under the impugned order are, (1) BE (Naval Architecture and Ocean Engineering) – and its expanding scope have to be decided by the Academic Council of the respondent University and the University has to study the performance of the existing affiliated colleges and then to decide about expanding the course after reviewing the entire situation. (2) The Planning Body (Academic Council) of the University has to discuss and deliberate and take a decision. (3) The University has to study about the future of candidates passing through the said course and only after completely satisfied with the infrastructure and professional capacity to conduct the course it will decide the expansion of affiliation to B.E. (Naval Architecture and Ocean Engineering). It is also admitted as it is seen in the impugned order that Visakhapatnam campus of the University is conducting the said B.E.(Naval Architecture and Ocean Engineering) course. (4) It is stated that some of the conditions indicated in the letter dated 30.6.2009 have not been fulfilled and therefore, by letter dated 6.7.2009, approval granted for B.E. (Marine Engineering) and B.E.(Nautical Science) would be withdrawn. (5) It is further stated that in respect of seat sharing, letter dated 10.7.2009 was sent and there was no response, which resulted in inconvenience and postponement of counselling. For the above said reasons, the application for affiliation of B.E. (Naval Architecture and Ocean Engineering) of the petitioner institution has been rejected. 11. Indian Maritime University was established by the Indian Maritime University Act, 2008 (Central Act 22/08) (in short, "the https://hcservices.ecourts.gov.in/hcservices/ Act") with the object to establish and incorporate a teaching and affiliating University at the national level to facilitate and promote maritime studies and research and to achieve excellence in areas of marine science and technology, marine environment and other related fields, and to provide for matters connected therewith or incidental thereto. 12. Under section 3(5) of the Act, the respondent University is a 'teaching and affiliating University'. The objects of the University is explained under section 4 of the Act as follows: " Section 4.The objects of the University shall be,- (i) to facilitate and promote maritime studies, training, research and extension work with focus on emerging areas of studies like oceanography, maritime history, maritime laws, maritime security, search and rescue, transportation of dangerous cargo, environmental studies and other related fields, and also to achieve excellence in these and connected fields and other matters connected therewith or incidental thereto; ii) to promote advanced knowledge by providing institutional and research facilities in such branches of learning as it may deem fit and to make provisions for integrated course in Science and other key and frontier areas of Technology and allied disciplines in the educational programmes of the University; iii) to take appropriate measures for promoting innovations in teaching-learning process, inter- disciplinary studies and research; and to pay special attention to the promotion of educational and economic interests and welfare of the people of India; iv) to promote freedom, secularism, equality and social justice as enshrined in the Constitution of India and to act as catalyst in socio-economic transformation by promoting basic attitudes and values of essence to national development; and V)to extend the benefits of knowledge and skills for development of individuals and society by associating the University closely with local, regional and national issues and development. " 13. The powers of the University which are enunciated under section 5 includes, https://hcservices.ecourts.gov.in/hcservices/ (i) xxxx (ii) to make provision for recognised institutions to undertake special studies; (iii) to establish and maintain campuses, colleges, institutions, departments, laboratories, libraries, museums, centres of research and training and specialised studies; (iv) to (xi) xxxxx (xii) to recognise an institution of higher learning for such purposes as the University may determine and to withdraw such recognition; (xiii) to (xvii) xxx (xviii) to inspect recognised institutions through suitable machinery established for the purpose, and to take measures to ensure that proper standards of instruction, teaching and training are maintained by them, and adequate library, laboratory, hospital, workshop and other academic facilities are provided for; (xix) to (xxii) xxx (xxiii) to admit to its privilege colleges and institutions, not maintained by the University, and to withdraw all or any of those privileges in accordance with such conditions as may be prescribed by the Statutes; apart from many other powers. 14. It shows that the powers of the University includes not only to start a constituent college but also to grant approval for other colleges and institutions. The Officers of the University are enumerated under section 10 which includes, the Chancellor, who is appointed by the Visitor viz., the President of India. As per the statute, the Vice Chancellor, the Pro-Vice-Chancellor, the Deans of Schools, the Directors, the Registrars, the Finance Officer or such other Officers as statute prescribes are also the officers of the University. 15. The Authorities of the University are explained in section 19 as follows: (1)the Court; (2)the Executive Council; (3)the Academic Council; (4)the Planning Board; (5)the Board of Affiliation and Recognition; https://hcservices.ecourts.gov.in/hcservices/ (6)the Boards of Schools; (7)the Finance Committee; and (8)such other authorities as may be declared by the statutes. 16. The Executive Council is the principal executive body of the University as per section 21 of the Act while the Academic Council as per section 22 of the Act, is the Principal Academic body of the University having control and supervision over and responsibility for maintenance and standards of institutions, education and examinations within the University. The power of affiliation of the University as per section 23 is as follows: " Section 23. (1)The Board of Affiliation and Recognition shall be responsible for admitting colleges and institutions to the privileges of the University. (2)The constitution of the Board of Affiliation and Recognition, the term of office of its members and its powers and duties shall be such as may be prescribed by the Statutes. " 17. The Parliamentary Act itself has set out the first statute of the University . Section 29 of the Act empowers the Executive Council to make new or additional statutes or to make amendments etc. Under section 28 of the Act, the statute provides for various matters including clause (n) 'the conditions under which colleges and institutions may be admitted to the privileges of the University and the withdrawal of such privileges'. That apart, section 30 provides for Ordinance with powers enabling the Vice Chancellor to bring the first ordinance with the approval of the Central Government. Section 50 of the Act which speaks about the role of the Central Government and Director General of Shipping, states as follows: " Section 50. 1) The University shall, in discharge of its functions under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time. (2) The decision of the Central Government as to whether a question is one of policy or not shall be final." 18. The first statute prescribed was framed by the Parliament and included in the Schedule. Statute 14 under which Academic Council is constituted also includes under '14(1)(j). Two Principals of recognised colleges as its members'. Statute 34 enables the https://hcservices.ecourts.gov.in/hcservices/ Executive Council of the University to admit any of the colleges or other institutions to the privileges of the University on recommendation of the Academic Council made after considering the report of the Inspection Committee appointed for the said purpose by the Academic Council. It also enables the constitution of Board of Affiliation and Recognition and the terms of Office of its members by the Ordinance. Statute 34 is as follows: " Statute 34. (1) Colleges and other institutions situated within the jurisdiction of the University may be admitted to such privileges of the University as the Executive Council may decide on the following conditions, namely:- (i) Every such college or institution shall have a regularly constituted Governing Body, consisting of not more than fifteen persons approved by the Executive Council and including among others, two teachers of the University to be nominated by the Executive Council and three representatives of the teaching staff of whom the Principal of the college or institution shall be one. The procedure for appointment of members of the Governing Body and other matters affecting the management of a college or an institution shall be prescribed by the Ordinances: Provided that the said condition shall not apply in the case of colleges and institutions maintained by Government which shall, however, have an Advisory Committee consisting of not more than fifteen persons which shall consist of among others, three teachers including the Principal of the college or institution, and two teachers of the University nominated by the Executive Council. (ii) Every such college or institution shall satisfy the Executive Council on the following matters, namely:- (a) the suitability and adequacy of its accommodation and equipment for teaching; (b) the qualifications and adequacy of its teaching staff and the conditions of their service; (c) the arrangements for the residence, welfare, discipline and supervision of students; (d) the adequacy of financial provision made for the continued maintenance of the college or institution; and https://hcservices.ecourts.gov.in/hcservices/ (e) such other matters as are essential for the maintenance of the standards of University education. (iii) No college or institution shall be admitted to any privileges of the University except on the recommendation of the Academic Council made after considering the report of a Committee of Inspection appointed for the purpose by the Academic Council. (iv) Colleges and institutions desirous of admission to any privileges of the University shall be required to intimate their intention to do so in writing so as to reach the Registrar not later than the 15th August, preceding the year from which permission applied for is to have effect. (v) A college or an institution shall not, without the previous permission of the Executive Council and the Academic Council, suspend instruction in any subject or course of study which it is authorised to teach and teaches. (2) Appointment to the teaching staff and Principals of colleges or institutions admitted to the privileges of the University shall be made in the manner prescribed by the Ordinances: Provided that nothing in this clause shall apply to colleges and institutions maintained by Government. (3) The service conditions of the administrative and other non-academic staff of every college or institution referred to in clause (2) shall be such as may be laid down in the Ordinances: Provided that nothing in this clause shall apply to colleges and institutions maintained by Government. (4) Every college or institution admitted to the privilege of the University shall be inspected at least once in every two academic years by a Committee appointed by the Academic Council, and the report of the Committee shall be submitted to the Academic Council, which shall forward the same to the Executive Council with such recommendations as it may deem fit to make. (5) The Executive Council, after considering the report and the recommendations, if any, of the Academic Council, shall forward a copy of the report to the Governing Body of the college or institution with such remarks, if any, as it may deem fit for suitable action. https://hcservices.ecourts.gov.in/hcservices/ (6) The Executive Council may, after consulting the Academic Council, withdraw any privileges granted to a college or an institution, at any time it considers that the college or institution does not satisfy any of the conditions on the fulfillment of which the college or institution was admitted to such privileges: Provided that before any privileges are so withdrawn, the Governing Body of the college or institution concerned shall be given an opportunity to represent to the Executive Council why such action should not be taken. (7) Subject to the conditions set forth in clause (1), the Ordinances may prescribe- i)such other conditions as may be considered necessary; ii) the procedure for the admission of colleges and institutions to the privileges of the University and for the withdrawal of those privileges. (8) The constitution of Board of affiliation and recognition and the terms of office of its members shall be prescribed by the Ordinances." 19. Even though section 23(2) of the Act enables the constitution of Board of Affiliation and Recognition, the term of Office of members and powers are prescribed in the statute. Statute 34 delegates the Board of Affiliation and Recognition to the Ordinance to be made by the Vice Chancellor with the previous approval of the Central Government as per section 30(2) of the Act. It is not the case of the respondent University that the Board of Affiliation and Recognition has not been constituted either by the Statute or by the Ordinance irrespective of the fact as to whether there are any contradiction between section 23(2) of the Act and statute 34(8) of the Statute framed under the Act. 20. Be that as it may, in this case, the Committee of Inspection which has been appointed as per the statute has inspected the petitioner college. It is no doubt true that the report of the Committee of Inspection has to be considered and approved by the Academic Council and thereafter, the Executive Council has to pass final orders for admitting any college or institution to the privilege of the University. But, the question is as to whether the respondent University which has been started with the object of affiliating colleges, conducting courses by constituent colleges, etc., can postpone its functioning through its Academic Council after receiving report of the statutory Committee of Inspection on the https://hcservices.ecourts.gov.in/hcservices/ ground that the Academic Council has to study about the scope of B.E. (Naval Architecture and Ocean Engineering) and also the implications of the students' future in the course, particularly when the University is not able to find any fault with infrastructural facilities for conducting the course in the petitioner institution. 21. Certainly, the statutory authority