IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 4585 of 2008(U) ------------------------------------- PETITIONER: ------------------- THE DIRECTOR, MAR ATHANASIOS COLLEGE FOR ADVANCED STUDIES, THIRUVALLA. BY MR.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, ADV.MR.TONY GEORGE KANNANTHANAM. RESPONDENTS: ------------------------ 1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS, KOTTAYAM. 2. THE CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM. R1 & R2 BY MR. T.A. SHAJI, SC, M.G.UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2009, ALONG WITH W.P.(C). NO. 4638/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4585/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMUNICATION DTD. 09/11/2006 FROM THE M.G. UNIVERSITY. EXT.P.2: COPY OF THE COMMUNICATION DTD. 14/06/2007 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION. EXT.P.3: COPY OF THE LETTER DTD. 11/09/2007 TO THE R.1. EXT.P.4: COPY OF THE LIST OF THE CANDIDATES ADMITTED OF MBA 1ST SEMESTER2007. EXT.P.5: COPY OF THE NOTIFICATION DTD. 04/01/2008 ISSUED FROM M.G. UNIVERSITY. EXT.P.6: COPY OF THE COVERING LETTER DTD. 11/01/2008 TO THE R.2. EXT.P.7: COPY OF THE NOTICE ISSUED FROM THE R.1. EXT.P.8: COPY OF THE EXPLANATION DTD. 05/02/2008 TO THE R.1. EXT.P.9: COPY OF THE COMMUNICATION DTD. 07/02/2008 ISSUED FROM THE R.2. EXT.P.10: COPY OF THE NOTIFICATION DTD. 11/07/2008 ISSUED FROM THE CONTROLLER OF EXAMINATIONS. EXT.P.11: COPY OF THE REPRESENTATION DD. 25/07/2008 ISSUED FROM THE PETITIONER. EXT.P.12: COPY OF THE COMMUNICATION DTD. 23/05/08 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION. EXT.P.13: CLP, COMMUNICATION DTD. 17/05/2008 ISSUED FROM THE REGISTRAR OF M.G. UNIVERSITY. EXT.P.14: COPY OF THE NOTIFICATION DTD. 15/04/2008 ISSUED FROM -DO-. EXT.P.15: COPY OF THE CIRCULAR DTD. 22/08/2007 OF -DO-. EXT.P.16: COPY OF THE COVERING LETTER DTD. 26/02/2009 TO THE R.2. EXT.P.17: COPY OF THE LIST OF STUDENTS MBA 3RD SEMESTER. EXT.P.18: COPY OF THE LIST OF STUDENTS WHOSE RESULTS ARE TO BE PUBLISHED. W.P.(C).NO.4585/2008-U: RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE REPORT DTD. 14/12/2007. EXT.R1.B: COPY OF THE CIRCULAR DTD.09/11/2006 ISSUED BY THE UNIVERSITY. EXT.R1.C: COPY OF THE PAGE NO.1 OF THE COMPUTER PRINT OUT OF THE ADMISSION SCHEDULE OF MBA PUBLISHED BY THE PETITIONER FOR THE YEAR 2008-09. EXT.R1.D: COPY OF THE NOTIFICATION DTD. 15/04/2008 ISSUED BY THE UNIVERSITY. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 4585, 4961 & 5106 of 2008 and 4638 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th June, 2009 J U D G M E N T The issue involved in these writ petitions are the same, namely, affiliation by the University for additional intake of students for MBA Degree Course for the year 2007-08 onwards in the Mar Athanasious College for Advanced Studies, Thiruvalla. W.P(C) No. 4585/2008 is filed by the Director of the College. The other three writ petitions are filed by students who have got admission to the additional 60 seats, for which affiliation is sought for the year 2007- 08 onwards. 2. The college had already obtained affiliation for 60 students for its MBA course. The college applied sto the University for increase in intake of students for MBA degree course for the year 2006-07. By Ext. P1 communication dated 9-11-2006, the University informed the principal of the college that the application has not been considered for the year 2006-07 as the same was filed only on 25-9- 2006. However, the University informed the college by Ext. P1 itself that the said application shall be considered for the ensuing academic year 2007-08. By Ext. P2 order dated 14-6-2007, the All India Council for Technical Education granted extension of AICTE approval to the college for additional intake of 60 more students. A copy of that order is marked to the 1st respondent University also. By Ext. P3 dated 11-9-2007, the petitioner also requested the University to W.P.C. No. 4585/08 etc. -: 2 :- approve the additional intake for the academic year 2007-08. According to the petitioner, since the petitioner did not get any order denying approval, the petitioner admitted students for the additional intake of 60 seats also. While so, the University published Ext. P5 notification declaring the time table for the first semester MBA degree examination. The principal of the college forwarded applications for 119 students for registration for examination for the first semester. However, by Ext. P7 dated 31-1-2008, the principal of the college was directed to furnish his explanation for violating the University rules and conducting courses without University affiliation insofar as the students were admitted in excess of the sanctioned intake by enhancing the seats of MBA course from 60 to 119 for the academic year 2007-08 without approval of the University. The petitioner filed Ext. P8 explanation. Since no reply was received before the examinations, the petitioner filed this writ petition seeking the following reliefs: “(a) Issue a writ of mandamus or other appropriate order or direction to direct the respondents University to approve the additional intake of students, for the MBA course, sanctioned by the AICTE, as per Ext. P2. (b) to issue a writ of mandamus or other appropriate order or direction to direct the respondent to permit the students admitted as shown in Ext. P4 list, to appear for their 1st semester exams for MBA commencing on 13-2-2008. (c) to declare that no affiliation by the University is necessary for an additional intake sanctioned by the AICTE.” The petitioner also sought an interim relief for a direction to the respondents to issue hall tickets and to permit the students shown in Ext. P4 list to appear for their first semester examination for MBA commencing from 13-2-2008. 3. This Court admitted the writ petition and on 12-2-2008 and W.P.C. No. 4585/08 etc. -: 3 :- granted an interim order as prayed for provisionally subject to the result of the writ petition with a condition that the results would not be declared by the University unless otherwise ordered by this Court. By order dated 29-7-2008, this Court granted permission to the students to write the second semester examination also. 4. While so, the AICTE again issued Ext. P12 order dated 12-6- 2008 granting extension of approval for the revised intake of 120 students beyond the academic year 2007-08. But, the period of approval was restricted to 2008-2010. In view of Ext. P12, the college again approached this Court for interim orders regarding admission for 2008-09 also to the additional 60 seats. This Court, by order dated 18-8-2008, permitted the college to complete the admission for the additional intake also for the year 2008-09. Subsequently, by order dated 12-3-2009, this Court permitted the students to appear for the third semester MBA examination scheduled to be held on 18-3-2009 provisionally with the condition that the results shall not be declared until otherwise ordered by this Court. 5. The petitioner's contention is that additional intake is not like starting a new college or post. As such, for additional intake, no affiliation by the University is necessary. Therefore, according to the petitioner, the stipulation in Statute 19(3) of Chapter 23 of the Mahatma Gandhi University Statutes 1997 that no students shall be admitted to any course of instruction in the college in anticipation of affiliation is not applicable to additional intake of students. Learned counsel for the petitioner would therefore argue that in such circumstances, there was nothing wrong in the petitioner admitting students to the additional intake also in anticipation of the approval insofar as AICTE had granted approval for the additional intake also. 6. The University has filed a counter affidavit and additional counter affidavit. They would assert that insofar as Statute 3 of W.P.C. No. 4585/08 etc. -: 4 :- Chapter 23 refers to affiliation in respect of additional students also to existing courses, affiliation is necessary for additional intake of students also, in which case, according to the University, the prohibition under Statute 19(3) of Chapter 23 squarely applies to additional intake also. Admittedly, the college has admitted students without obtaining affiliation. Therefore, they are responsible for all the consequences thereto, is the contention raised by the University. It is further submitted that pursuant to the application for affiliation of additional intake, the University had constituted a committee for inspection of the facilities provided by the petitioner for the additional intake, who submitted Ext. R1(a) report, in which certain defects in infrastructural facilities have been reported, because of which only affiliation has not been granted. According to the University, without rectifying the defects pointed out by the inspection committee, the University could not have granted affiliation for the additional intake. In the absence of affiliation, the petitioner could not have admitted students for the additional intake for the year 2007-08, is the contention raised by the University. 7. Counsel for the students, who have filed the other writ petitions, would, while adopting the contentions of the petitioner, contend that the students cannot be penalised for a dispute between the University and the College. They bona fide got admission to the college believing that the course has affiliation for the entire 120 students and therefore it is totally unjust now to leave them in the lurch, on the technical contention of the University that for want of some flimsy defects, such affiliation cannot be granted. 8. I have considered the rival contentions in detail. 9. First, I shall consider the question as to whether for additional intake, what is required is affiliation or approval. Chapter 23 of the Mahatma Gandhi University Statutes 1996 deals with W.P.C. No. 4585/08 etc. -: 5 :- affiliation of colleges. Statute 3 thereof reads thus: “3. Application for additional affiliation etc. The application for affiliation in additional subjects or for upgrading a college shall be made in Form 3. Application for starting post graduate courses and for seeking of additional seats in existing courses shall respectively be made in Form 4, Form 5, as the case may be.” Of course, the form prescribed for affiliation for additional intake, namely Form No. 5, is an application comparatively much more simpler than the application form prescribed in Form Nos. 2 and 3 for the purpose of affiliation of the new or additional subjects. All the same, what it speaks of is affiliation. Although what is payable is only administration fee and not affiliation fee, it is a fact that for each student administration fee is to be paid. That would indirectly go to show that affiliation is required for additional intake also. Therefore, I am not able to countenance the contention of the counsel for the petitioner that for the purpose of additional intake of students, what is contemplated is not affiliation but approval. For the same reason, I am not inclined to accept the contention of the petitioner that in respect of additional intake in anticipation of approval, students can be admitted. When Statute 19(3) specifically stipulates that no students shall be admitted to any course of instruction in the college in anticipation of affiliation, the petitioner could not have admitted students in anticipation of affiliation by the University. 10. However, I do not think that the petitioners in these cases should fail for that reason. Here is a case where the petitioner obtained approval from the AICTE for the additional intake for the year 2007-08 by Ext.P2 order dated 14-6-2007. That is for only one academic year, namely, 2007-08. If students are not admitted for the year 2007-08 for the additional intake also, the entire effort of the college in obtaining Ext. P2 order would go waste. By Ext. P1, while W.P.C. No. 4585/08 etc. -: 6 :- considering the application for increase in intake for the year 2006-07, although it was rejected on the ground that it was belatedly submitted, the University themselves held out a promise to the college that the said application shall be considered for the ensuing academic year 2007-08. Although Ext. P3, forwarding Ext. P2 to the University by the petitioner is dated 11-9-2007, from Ext. P2, it is seen that a copy of Ext. P2 has been marked to the 1st respondent by the AICTE themselves. The University has no case that they have not received the same. It remains a sad fact that the University had not chosen to intimate the petitioner that their application for affiliation of the additional intake of students has been rejected or allowed. In fact, even today, the situation is the same. I do not think that the respondent-University can behave like that. They are dealing with the future of students. They are expected to protect the students if they possibly can. If they are of opinion that affiliation cannot be granted for the additional intake for which the petitioner had obtained AICTE approval, they had a statutory duty to inform the petitioner accordingly as expeditiously as possible, which has not been done in this case at any time. 11. In Ext. P2, the AICTE states that “the additional intake is being granted based on the projection shown in the Detailed Project Report regarding additional built up space, faculty and other facilities for the proposed intake, and that all facilities including additional built up area should be made available before the commencement of the next academic session. It is further stated therein that random surprise inspection would be carried out to verify facilities and if the institute is found deficient in fulfilment of norms and standards of AICTE, appropriate action would be initiated by the Council.” But, in Ext. P12, such a clause is conspicuously absent. Instead, Ext.P12 categorically states that there are no deficiencies to be rectified by W.P.C. No. 4585/08 etc. -: 7 :- the petitioner in respect of the faculty, built up area computers and others. That being so, while granting Ext. P12, at least the AICTE was completely satisfied about the infrastructural facilities available in the petitioner's college for the additional intake also. 12. The question as to whether when AICTE grants approval, the University can sit in appeal over such a decision has been subject matter of various decisions of this Court and the Supreme Court. The Supreme Court has, in various decisions, held that the central body is the body competent to decide the issue of granting approval and once the central body grants approval, it is not for the University to go into the question again and come to a different conclusion. The latest of those decisions dealing with all the decisions on that subject is the Full Bench decision of this Court in Vikram Sarabhai E. Trust & B.Ed. College v. University of Calicut, 2008(2) KLT 1027 (FB), wherein the Full Bench has categorically held that when the central body grants recognition based on the finding that the college has necessary infrastructural facilities, the University has no power or authority to decline affiliation on the ground of lack of infrastructural facilities. A learned single Judge of this Court had occasion to consider the scope of enquiry by the university after the AICTE grants approval, in W.P(C) No. 30965/2004, wherein the learned Judge had held thus in paragraphs 11 and 13: “11. Going by the scheme of All India Council for Technical Education Act, I feel that once the said Council grants approval, further enquiry by the University to find out whether the required facilities are available, is unnecessary and unwarranted. The University, being the creation of a Statute, is bound by Section 23 (1) of the Kerala University Act and also Statutes 7, 8 and 9 of Chapter 24 of the First Statutes. Regarding the technical facilities available, there is no prescription contained in the Kerala University Act or the Statutes, for granting affiliation to the Engineering or MBA courses. The only prescription made by the University is contained in Ext. P4. Ext. P4 gives the details to be furnished in the application for affiliation. The only condition for W.P.C. No. 4585/08 etc. -: 8 :- affiliation made in Ext. P4 is contained in para 10, which deals with the minimum extent of land, necessary for the Colleges. The inspection, if any, contemplated under Statute 8, can only be for the purpose of satisfying the requirements under Ext. P4, especially, the one contained in para 10 of the said exhibit. Paragraphs 1 to 9 in Ext. P4 only call for certain particulars. The Committee can only verify whether those particulars are correct or not. Apart from the prescription contained in para 10 of Ext. P4, no Statute, Ordinance or Order has been brought to my notice, prescribing the necessary facilities for grant of affiliation to the B.Tech Mechanical Engineering or M.B.A course. But, I find from Ext. R1(a) series that in relation to those two courses, the Inspection Commission has submitted reports, stating want of certain facilities. A perusal of Ext. R1(a) would show that Dr. K.S. Chandrasekharan was the expert member, who submitted the report concerning M.B.A course. In his report, under para 6, concerning infrastructure facilities, it is reported that no teachers are available. It is further reported that required class rooms with required seating capacity are available. He has also stated that for recruiting teachers, the advertisement has been released only on 15-9-2004. It is also mentioned that separate arrangements for MBA course are not made and hostel facilities are provided only for girl students. After noticing the facilities available, he has finally stated “As in the current context, they may not be able to fulfil the requirements during this year, it is not recommended at the present moment.” But, kit is not evident, what is the basis for his recommendation. He has set his own subjective norms and expressed his own subjective views, on the application for affiliation. xx xx xx 13. So, going by the Inspection report, the denial of affiliation of the B.Tech Mechanical Engineering course, is justified. It is declared so. Regarding the MBA course, the main adverse observation, if any made, is regarding the non-completion of recruitment of Faculty members and absence of hostel facilities to male students. It is also observed that separate arrangements for MBA course are not made. But, it is not clear, what are the separate arrangements, which are to be made. The above adverse comments do not correlate with any statutory prescription, contained in the University Act or Statutes. They cannot be correlated with the norms contained in Ext. P4. Therefore, on the above grounds, the denial of affiliation to the MBA course is arbitrary and unjustified. This is all the more so, in view of the approval granted by the AICTE, which is the competent technical body. A man can be punished, Rule of Law says, only for violating law and Law alone. Likewise the petitioner can be penalised, only for not providing any facilities in terms of the Act, Statutes or valid orders of the competent authority or the University. No such order has been brought to my notice, to support the W.P.C. No. 4585/08 etc. -: 9 :- observations of Dr. K.S. Chandrasekharan, concerning affiliation of the MBA course. So, the rejection of affiliation, relying on the said report, is unjustified. The non-appointment of teachers, which is further highlighted in the second counter affidavit of the University is also not a ground, provided in the University Act or the Statutes, to deny affiliation. Of course, for commencing classes, qualified teachers should be provided. If the petitioner fails to do that, the affiliation granted can definitely be withdrawn. The learned standing counsel for the University attempted to submit that the teachers, including Principal should be recruited for grant of approval by the AICTE, relying the Regulations/Orders, under the A.I.C.T.E. Act, 1987. The University is bound by the approval granted by the AICTE. It can insist appointment of teachers, if only there is a prescription for the same under the Act or Statutes in view of Section 23(i) of the University Act.” 13. In the counter affidavit, the contention now raised is that the petitioner cannot be granted affiliation for the additional intake because the committee appointed for inspecting infrastructural facilities for the additional intake has reported some serious deficiencies. Ext. R1(a) is the report of the committee. It is with reference to various courses including MBA. In respect of MBA, the deficiencies noted are: “This facility available in the institution are not satisfactory. There is no separate library facility available in the departments of MBA and MCA. The total books available in the general library for MBA is below 1000 titles and MCA 750 titles. The number of latest titles in these two subjects are few. For MBA, only one international journal (Harvard Business Review) is available 6 national journals are displayed in the rack. This is insufficient for a students strength of 60. The seating capacity of the reading rook is 10 tables with 4 chairs each, ie, 40 students in total. This is the whole facility available for a student capacity of more than 200 full time students in the affiliated courses. This is insufficient.” As observed by the learned Judge in the above quoted judgement, here also counsel for the University could not bring to my attention any provision of law, which would stipulate that the college should W.P.C. No. 4585/08 etc. -: 10 :- have the so called facilities mentioned above. Of course, in Statute 26, it is stated thus wherein libraries are mentioned: “26. Matters to be complied with for seeking affiliation: (i) xx xx xx (ii) the suitability and adequacy of the buildings, libraries, laboratories and equipments; xx xx xx” But, that does not mention that the libraries should have the particular facility as mentioned in Ext. R1(a), which is shown as a deficiency by the inspection committee. That is with regard to the first two defects. As far as the 3rd defect is concerned, no provision has been brought to my attention, which requires that the college should provide a reading room with a fixed number of tables and chairs. Counsel for the University also points out that as is clear from Ext. R1(a), although hostel facility for girls are arranged in the main building itself, there is no hostel facility for gents. It is also mentioned therein that maintenance of separate hostel facility is needed for the girls. What is provided in Statute 26 of Chapter 23 is that provision has to be made in conformity with the laws of the University for the residence in the college hostels or in lodgings approved by the college. Counsel for the University could not bring to my attention any law made by the University in that respect. Therefore, without backing of a statute or regulation, the University cannot insist upon certain facilities for the purpose of denying affiliation. Of course, it would be ideal if a college has such facilities also and the University may direct the petitioner to provide such facilities also. But, I do not think that that is a good ground for denying affiliation as such. 14. Moreover, in the reply affidavit filed by the petitioner, the W.P.C. No. 4585/08 etc. -: 11 :- petitioner has categorically denied that there is any such defect. It is specifically stated that separate hostel facilities are provided for gents also apart from the hostel facility for girls. They also assert that the library is fully equipped for 120 students and there are sufficient tables and chairs in the study room. That being so, I am not satisfied that the reasons now mentioned in the counter affidavit are sufficient to deny affiliation to the additional intake for which the petitioner has applied for with the approval of the AICTE. The University also could not point out any valid reasons for denying affiliation. Of course, the counsel for the University lays stress on the fact that they applied only in September. I do not think that after having extended the promise that their earlier application would be considered for the next year and after having received Ext. P2 from the AICTE directly, the University can take