IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 29745 of 2011(P) -------------------------- PETITIONER(S): ------------------------ THE MANAGER, ALBERTIAN INSTITUTE OF SCIENCE & TECHNOLOGY, KALAMASSERY, COCHIN-682 022. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K. SIMON RESPONDENT(S): ------------------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS KOTTAYAM-686 660. 2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM-686 660. SRI.T.A.SHAJI, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.29745/11 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE LETTER DATED 2/9/2011 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2: TRUE COPY OF THE COMMUNICATION DATED 19/8/2011 ISSUED FROM ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE). EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 23/9/2011 IN WPC.24231/2011 OF THIS HONOURABLE COURT. EXHIBIT P4: TRUE COPY OF THE LETTER DATED 29/9/2011 ISSUED BY THE PETETIONER. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 3.11.2011 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 10/11/2010 ISSUED BY THE GOVERNMENT. EXHIBIT P7: TRUE COPY OF THE AGREEMENT DASTED 27/11/2011 BETWEEN PETITIONER AND THE GOVERNMENT. EXHIBIT P8: TRUE COPY OF THE ORDER DATED 19/8/2011 ISSUED BY THE GOVERNMENT. EXHIBIT P9: TRUE COPY OF THE ORDER DATED 20/10/2011 ISSUED BY THE GOVERNMENT. EXHIBIT P10: TRUE COPY OF THE REPRESENTATION DATED 7/10/2011 ISSUED FROM THE PETITIONER. EXHIBIT P11: TRUE COPY OF THE ADVERTISEMENT RELEASED IN THE HINDU PAPER DT 14.9.11. EXHIBIT P12: TRUE COPY OF THE LIST SHOWING THE DETAILS OF APPLICATIONS RECEIVED FOR ADMISSION TO B.TECH COURSE AT ALBERTIAN INSTITUTE OF SCIENCE AND TECHNOLOGY FOR THE YEAR 2011- 12. EXHIBIT P13: TRUE COPY OF THE LIST OF TEACHERS APPOINTED AND HAVE JOINED DUTY. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 29745 OF 2011 ===================== Dated this the 16th day of November, 2011 J U D G M E N T Petitioner is the Manager of an educational agency. Ext.P1 is the proceedings of the AICTE according approval to the petitioner for starting a College of Engineering with B.Tech courses in five disciplines. 2. Petitioner had also applied to the University for affiliation. By Ext.P1 order of 2/9/11, University informed the petitioner that it had recommended affiliation, and that, it was awaiting the views/NOC of the Government for passing orders. At that stage, complaining of delay in considering its application, petitioner approached this Court by filing WP(C) No. 24231/11. That writ petition was disposed of by this Court by Ext.P3 judgment directing the University to take a decision on the application of the petitioner for affiliation at any rate within four weeks irrespective of whether the views/NOC has been received or not. 3. According to the petitioner, under cover of Ext.P4 letter dated 29/9/11, a copy of the judgment was served on the WPC No. 29745/11 :2 : University. Finally, the University issued Ext.P5 oder granting provisional affiliation for the year 2011-12 with a rider that the classes shall be commenced only during 2012-13. The reason for incorporating such a condition as reflected in Ext.P5 reads thus; 1. The Engineering classes for the first year commenced on 14.8.11. 2. Two months have elapsed and hence if the classes are to commence in the middle of the academic year, the no. of working days/instructional period for the first year will be severely reduced and the curricular objectives envisaged in the teacher-learning process in the first year B.Tech programmes will be severely constrained. 3. If permission is given to start classes at this point of the academic year, the mandatory 75% attendance for registering in the University examinations may not be achieved. 4. Late starting of curses will upset the schedule of examination and publication of results of B.Tech students, in the University. 5. The Institution being new and the courses offered are professional, the academic accomplishment of the students will be adversely affected. Considering the above facts that eventuate consequent to granting affiliation to a new Unaided Self Financing Engineering College at the middle of the academic year, the Syndicate vide Minutes read (17) above, resolved to grant affiliation to new Unaided Self Financing Engineering College, under the name and style “Albertian Institute of Science and Technology, Kochi” with the courses recommended by the Syndicate for the academic year 2011-12 with permission to start classes during the academic year 2012-12.” WPC No. 29745/11 :3 : 4. Impugning the aforesaid condition in Ext.P5 order, the learned senior counsel for the petitioner contended that the University having delayed orders on the application made by the petitioner, has deliberately created the situation to deny the petitioner its right to commence classes this year. According to the learned senior counsel, rank list prepared by the Commissioner for Entrance Examination expired on 31/10/11 and that if the University had passed orders within four weeks from 29/9/11 as directed in Ext.P3 judgment, it would have been possible for the petitioner to have filled up the seats from among the candidates included in the rank list and if not, by complying with the requirements of Ext.P9 Government order and by holding test as directed therein. 5. Moreover, it is also submitted by the learned senior counsel that on the strength of Ext.P9 dated 20/10/11, entrance test was held by the Management Association on 26/10/11 and the seats were filled up on that basis belatedly. It is therefore contended that there is no substance in the argument that delayed commencing of classes cannot be permitted. 6. In so far as the submission of the learned counsel for the University that even if this Court now permit the College to WPC No. 29745/11 :4 : complete the admission, the College will have to initiate fresh process for admission and make admission on that basis, learned counsel for the petitioner invited my attention to Exts.P11 to P13 and submits that the College has already invited applications, collected the details of the willing applicants and that the students have already been counselled. It is also submitted that 15 teachers mentioned in Ext.P13 have already been appointed and that the rest of the teachers will also join the college immediately. 7. Irrespective of all this, in para 43 and 44 of the writ petition, it is stated thus; “43. As per Mahatma Gandhi University Course Regulations for Bachelor of Technology (B.Tech) the required working days for the combined 1st and 2nd semester (1st year) is 150 days. The minimum required attendance is 75%. Therefore, a student should get a minimum of 113 working days. 44. Counting from the 8th of November and assuming that the University would conduct the exams at least by the 1st week of May, we can get145 days as working days.” 8. From the above statements, it is obvious that the minimum required working days for first and second semester is 150. On the petitioner's own estimation, if classes had started and examination is held in the first week of May, there will be only WPC No. 29745/11 :5 : 145 working days. Therefore, even if the petitioner is now permitted to start the courses, petitioner will not be able to achieve the minimum required number of working days. 9. Although the learned senior counsel for the petitioner contended that this shortage could be made up by working on holidays and that there is no prohibition for such an arrangement, I am not inclined to think that such a course is permissible. Holidays are meant to be holidays and those days cannot be converted as working days for making up the mandatorily prescribed number of such working days, although it may be open to the Management to hold classes on such days for additional instruction etc. Therefore, working on holidays cannot be a method to be resorted by a management to make up the mandatorily required working days. 10. In that view of the matter, since the petitioner will not be in a position to achieve the minimum number of working days, I do not think at this distance of time, petitioner should be permitted to commence classes in the academic year 2011-12. In that view of the matter, the reason stated in Ext.P5 to justify the impugned condition imposed by the University cannot be said to be an irrational one warranting interference. True, it was WPC No. 29745/11 :6 : contended that University had deliberately delayed orders on the application for affiliation and that therefore, petitioner is made to suffer damages. However, if the petitioner has such a case, their remedy is to claim damages in appropriate proceedings and that is no justification to ask for an order to start classes belatedly. 11. Yet another objection raised by the learned senior counsel for the petitioner is regarding the prescription in Clause 7 of Ext.P5 that the norms of reservation framed by the Government/ Commissioner of Entrance Examination/ AICTE/ University shall be followed by the college. According to the learned counsel, in view of the law laid down by the Apex Court in paras 124 and 132 of the judgment in P.A.Inamdar v. State of Maharashtra {(2005) 6 SCC 537}, such a clause is impermissible. Now that this year College is not going to make admissions, this contention is left open to be agitated before the University itself, so that this issue will be considered and orders thereon will be passed. Writ petition is dismissed. Sd/- ANTONY DOMINIC, JUDGE Rp //True Copy// PA to Judge