IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 15184 of 2011(W) -------------------------- PETITIONER(S): ---------------------- E. MOHAMMED THAHA, MANAGER, P. A. AZIZ COLLEGE OF ENGINEERING AND TECHNOLOGY, KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SRI. R. KRISHNA RAJ RESPONDENT(S): ------------------------ THE UNIVESITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM BY ADV. SRI. M. RAJAGOPALAN NAIR, SC, KERALA UTY. SRI. GEORGE POONTHOTTAM, SC, KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 15184 of 2011(W) APPENDIX PETITIONER'S EXHIBITS P1 COPY OF THE PROFILE DT. NIL P2 COPY OF THE ORDER OF THE AICTE DT. 24.06.2009 P3 COPY OF THE ORDER OF AICTE DT. 23.08.2010 P4 COPY OF THE APPLICATION OF THE PETITIONER DT. 28.08.2008 P5 COPY OF THE LETTER OF THE RESPONDENT DT. 27.08.2009 P6 COPY OF THE PURCHASE BILLS DT. 05.02.2009 P7 COPY OF THE PHOTOGRAPH DT. NIL P8 COPY OF THE PHOTOGRAPH DT. NIL P9 COPY OF THE PHOTOGRAPH DT. NIL P10 COPY OF THE PHOTOGRAPH DT. NIL P11 COPY OF THE PHOTOGRAPH DT. NIL P12 COPY OF THE PHOTOGRAPH DT. NIL P13 COPY OF THE PHOTOGRAPH DT. NIL P14 COPY OF THE ADMIT CARD DT. NIL P15 COPY OF THE COUNTER AFFIDAVIT DT. 03.02.2011 P16 COPY OF THE JUDGMENT IN W.P.NO. 35855/11 DT. 03.02.2011 P17 COPY OF THE LETTER OF THE PETITIONER DT. 30.04.2011 P18 COPY OF THE SHOW CAUSE NOTICE DT. 10.05.2011 P19 COPY OF THE REPLY OF THE PETITIONER DT. 23.05.2011 P20 COPY OF THE ORDER OF THE RESPONDENT DT. 30.05.2011 P21 COPY OF THE LETTER OF THE PETITIONER DT. 23.05.2011 P22 COPY OF THE NOTIFICATION OF THE RESPONDENT DT. 14.06.2011 P23 COPY OF THE NOTIFICATION OF THE 4TH SEMESTER RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 15184 of 2011 W ``````````````````````````````````````````````````````````` Dated this the 2nd day of December, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner is the Manager of a Self Financing Engineering College which is affiliated to the respondent University. In this writ petition , they are challenging Ext.P20 order passed by the respondent by which a fine of `20 lakhs has been imposed on the college and also rejecting their request for affiliation for the Academic Year 2011-2012 on the ground that the application was belated. 2. Briefly stated the facts of the case are that, by Ext.P4 application, petitioner applied for affiliation for additional intake of 60 students in the B.Tech course of Electronics and Communications. That application was rejected by the respondent University by Ext.P5 order dated 27.08.2009. However, in the meantime, without any order of affiliation, the college admitted 60 students for the Academic Year 2009-2010. Ext.P5 order was challenged before this W.P.(C) No.15184/2011 : 2 : Court in W.P.(C) No.35885/2009. During the pendency of the writ petition, on the commencement of the Academic Year 2010-2011, the college admitted 60 students for that year also. It also appears that in the University examinations which were held in the meanwhile, the students appeared after obtaining registration from the University. Finally, W.P. (C)No.35885/2009 was disposed of by Ext.P16 judgment dated 31.3.2011 with the following directions:- “5. In the above circumstances, petitioner is set at liberty to cure the defects pointed out in Ext.P6 and file necessary application for affiliation before the University forthwith, on which event, the same shall be considered by the University, in the particular circumstances, including the factum of permission given to the students to appear for the examinations. Appropriate orders shall be passed in accordance with law, as expeditiously as possible, at any rate, within one month.” 3. According to the petitioner , as directed in Ext.P16, W.P.(C) No.15184/2011 : 3 : they made fresh application for affiliation for the Academic Year 2009-2010 onwards. While the application was pending, the University issued them Ext.P18 show cause notice with the following allegations:- “Whereas, as per Statute 19(3), Chapter 24 of the Kerala University First Statutes, 1977, “no student shall be admitted to any course of instructions in the college in anticipation of affiliation” and Whereas, as per Statute 14, Chapter 24 of the Kerala University First Statutes, 1977, “the syndicate shall have the power at any time after due enquiry to withdraw or suspend the affiliation granted to the College” and therefore you are hereby called upon to Show Cause why affiliation granted to the college may not be withdrawn in view of the violation of the Statutory provisions.” 4. Accordingly, petitioner was called upon to show cause within 7 days why affiliation granted shall not be withdrawn. Petitioner submitted Ext.P19 reply and requested W.P.(C) No.15184/2011 : 4 : for issuing orders on the application made for affiliation. However, the University, by Ext.P20, ordered thus:- “The University has perused the explanations offered by the Educational Agency and has concluded that the Educational Agency has shown scant regard for the University and its Statutes. The University had rejected the additional batch in 2009-2010 and that is sufficient and valid reason for taking the University into confidence before repeating the same mistake in the academic year 2010-2011. It is absolutely irrational on the part of the Educational Agency to admit an additional batch of students in the next academic year 2010-2011 as well, since the matter was 'sub-judice'. The Hon'ble High Court in the Judgment referred to above, has stated that appropriate orders shall be passed in accordance with Law. The Vice-Chancellor, in exercise of the powers vested on him, vide Chapter 3, W.P.(C) No.15184/2011 : 5 : Section 10(13) of the Kerala University Act, 1974, in the absence of the Syndicate, has deemed it fit to impose a fine of Rs.10 lakhs (Rupees Ten Lakhs) for each additional batch admitted which comes to Rs.20 lakhs (Rupees Twenty Lakhs) in total, so that in future Educational Agencies do not take the University, its Statutes, Ordinances, and by laws etc. for granted. The request of the Educational Agency to consider the belated application submitted for additional batch for the academic year 2011-2012 is rejected. Hence, the Educational Agency is hereby directed to remit the fine as described above. It is also intimated that the results of the III Semester (2009-2010 batch) withheld as of now, shall be released only after the receipt of the fine.” It is challenging Ext.P20 order and seeking the aforesaid reliefs, the writ petition was filed. 5. In so far as the levy of fine of Rs.20 lakhs is concerned, contention raised by the learned counsel for the W.P.(C) No.15184/2011 : 6 : petitioner is that, they have, for the reasons explained in Ext.P19 reply to Ext.P18 show cause notice, admitted students during the Academic Year 2009-2010 and 2010-2011, without obtaining order of affiliation. It is also contended that, since the University itself permitted the students to appear in the University examinations and thus condoned the irregularity, if any, the University could not have declined affiliation for the aforesaid Academic Years and levied fine on the Educational Agency. Yet another contention raised is that no provision of either the Kerala University Act or the Statutes, empower the University to levy fine as ordered in Ext.P20. In so far as the rejection of the application for affiliation for the Academic Year 2011-2012 is concerned, referring to the judgment of the Apex Court in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya [2006 (9) SCC 1] and Full Bench judgment of this Court in Vikram Sarabhai E.Trust and B.Ed College Vs. University of Calicut [2008 (2) KLT 1027(FB)], W.P.(C) No.15184/2011 : 7 : counsel submits that the rejection of the application on the ground of delay is illegal. 6. I heard the Standing Counsel appearing for the respondents. According to the learned counsel, admittedly, University has not granted affiliation for the additional intake in question from the Academic Year 2009-2010 onwards. It is stated that despite this, in violation of the provisions contained in Statute 19(3) of Chapter 24 of the Kerala University Statutes, students were admitted for each of the aforesaid Academic Years. It is stated that this violation committed by the petitioner entitles the University to withdraw the affiliation of the college in question. It is stated that although such a harsh action was permissible in terms of the Act and Statutes, having regard to the consequences, such an order will have on the students including those who are pursuing the course with affiliation, the University opted for a lesser penalty by imposing a fine in order to ensure that the college complies with the requirements of the Act and Statutes at least in future. It is stated that such an order does not call for W.P.(C) No.15184/2011 : 8 : interference at least in a proceedings under Article 226 of the Constitution of India. 7. I have considered the submissions made by both sides. From the facts as stated above, it can be seen that in so far as the additional intake for B.Tech Electronics and Communications, which was approved by AICTE as per Exts.P2 and P3 is concerned, so far, affiliation has not been granted by the University. Statute 19 of Chapter 24 of the University Statutes expressly provides that no students shall be admitted to any course in anticipation of affiliation. It is not in dispute that 60 students each were admitted in 2009-2010. It is also submitted by the Standing Counsel that same has been repeated in 2009-2010 and 2010-2011. Therefore, this is a case where the college has admitted students in violation of the University Statutes. It was in such circumstances, Ext.P18 show cause notice was issued and Ext.P19 reply was filed by the petitioner. In Ext.P20, the University has levied fine and took the view that on the petitioner remitting the fine, orders will be passed on the application for affiliation. W.P.(C) No.15184/2011 : 9 : 8. As far as the power of the University in dealing with the college which has violated the provisions of the Act and Statutes are concerned, that power is contained in Statute 14 of Chapter 24 and also Section 68 of the Kerala University Act. While the provisions of the Statute and also the Act provides for actions including withdrawal of affiliation, there is no provision entitling the University to levy fine on an Educational Agency. The University being the creature of a Statute, it will have to act with the four corners of the Statute. If that be so, even if it is assumed that the petitioner’s college violated the provisions of the Act or the Statute, the penalty which is to be imposed has to be those sanctioned by the Act and the Statutes. Since fine is not one which is not provided either in the Act or the Statute, the levy of fine as ordered in Ext.P20 cannot be sustained. Therefore, that part of the order necessarily has to be set aside and I do so. 9. In so far as the rejection of the petitioner’s application for affiliation for the Academic Year 2011-2012 on the ground that it is belated is concerned, in my view, in the W.P.(C) No.15184/2011 : 10 : light of the principles laid down by the Apex Court and this Court in the judgments referred to above, the rejection cannot be upheld. Therefore, the rejection also is illegal and is dismissed. In the result, quashing Ext.P20, the writ petition is disposed of, leaving it open to the Syndicate of the University to decide on Ext.P18 show cause notice in the light of Ext.P19 reply and thereafter, to take decision on the applications for affiliation, after affording an opportunity of hearing to the petitioner. Once decisions are taken on the show cause notice and the applications for affiliation, appropriate orders will be passed in the case of the students admitted on the strength of interim order dated 26.09.2011 in I.A.No.14992/2011 also. Sd/- (ANTONY DOMINIC, JUDGE) aks/03/12 // True Copy // P.A. To Judge