1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.A.(MD).No.740 of 2011 and M.P.No.1 of 2011 The Anna University of Technology, Madurai Rep by its Registrar, Madurai District 625 002. : Appellant Vs. 1.Dhaya College of Engineering, Sivarakottai Village, Thirumangalam Taluk, Madurai 625 706, Rep by its Authorized Signatory, Mr.Balasubramanian. 2.The Secretary to Government, Higher Education Department, Government of Tamil Nadu, Fort.St.George, Chennai 600 009. 3.The Commissioner – cum – Director of Technical Education, Guindy, Chennai. : Respondents PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 01.08.2011 made in W.P.(MD).No.8354 of 2011 on the file of this Court. WP(MD)No.8354 of 2011 : Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of mandamus directing the third respondent herein to affiliate the petitioner college under the third respondent from the academic year 2011-2012 and consequently directing the respondents to permit the petitioner college to admit students both under the counselling as well as management seats commencing from 2011-2012. For Appellant : Mr.K.Chellapandian Additional Advocate General Assisted by (*) MR.B.PUGALENDHI Special Government Pleader For Respondent 1 : Mr.Veera Kathiravan https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT [Judgment of the Court was delivered BY P.JYOTHIMANI, J] The Writ Appeal is directed against the order of the learned Single Judge dated 01.08.2011 made in W.P.(MD).No.8354 of 2011 in and by which, in the Writ Petition filed by the first respondent college herein for a direction against the appellant – University to affiliate the first respondent college under the appellant – University from the academic year 2011 – 2012 and consequently, direct the respondents therein to permit the first respondent college to admit the students both under counselling as well as management seats commencing from 2011 – 2012, the learned Single Judge, while allowing the said Writ Petition, has passed the following order:- "In the above said circumstances, a direction is issued to the Registrar, Anna University of Technology, Madurai, to consider the reply of the petitioner, dated 25.07.2011 and grant affiliation to the educational institution, if the deficiencies are rectified, so as to enable the institution, to admit the students and also to take part in the counselling." 2. On a reading of the order of the learned Single Judge shows that the first respondent college has obtained necessary permission from All India Council for Technical Education, [for short AICTE] and thereafter, it has approached the appellant - University for grant of affiliation. It appears that the affiliating University has raised three objections on the application made by the first respondent college based on the report of the Inspection Committee dated 21.07.2011. The deficiencies pointed out by the Inspection Committee are as follows:- (1) There is a shortage of 175 library books for Science and Humanities; (2) Location of the Cafeteria is by the side of the class rooms which may create noise in managing the process; and (3) Transport facility is not available. 3. It is the case of the first respondent college that the said requirements have been fully complied with. It was in those circumstances, the learned Single Judge, taking note of the fact that the Hon'ble Supreme Court in State of Tamil Nadu Vs. Adhiyaman Educational and Research Institute and Others reported in 1995 (4) SCC 104, has held that when once the norms of AICTE have been complied with, the conduct of the University in granting affiliation is only a consequential one, and therefore, issued the above said direction, elicited above. 4. On a reference to Paragraph No.17 of the order of the learned Single Judge also makes it clear that the first respondent college itself has stated that there has been a complaint against it that the first respondent college has not obtained necessary permission from the competent authority for conversion of lands to put up construction for college. However, the learned Single Judge, while taking note of the said conduct, has opined that it is not the role of the appellant - University and according to the learned Single Judge, the role of the University is very limited i.e., only in respect of grant of affiliation. Aggrieved by the said positive direction given by the learned Single Judge and also restricting the role of the University as per Paragraph No.17 of the order, the appellant University has filed the present Writ Appeal. https://hcservices.ecourts.gov.in/hcservices/ 3 5. We have carefully considered the entire order passed by the learned Single Judge and also considered the contentions raised by the learned Additional Advocate General for the appellant – University and Mr.Veera.Kathiravan, who has taken notice on behalf of the first respondent college. 6. Inasmuch as the argument has been restricted only in respect of the positive direction issued by the learned Single Judge in directing the appellant – University to grant affiliation, we have to examine the legal position in this regard. It is true that originally the view of the Hon'ble Supreme Court in State of Tamil Nadu Vs. Adhiyaman Educational and Research Institute and Others reported in 1995 (4) SCC 104, was that when once the Central Body, viz., AICTE, being the authority competent to grant approval, as per Entry 66 of List I of Schedule VII of the Constitution of India, it is not open to the State or the University to go beyond the said finding given by the Central Body, thereby stating that the role of the University is only limited to the extent of granting affiliation and not more than that and it is stated to be almost automatic. The said view was, in fact, re-considered by a Constitution Bench of the Hon'ble Supreme Court in Dr.Preeti Srivastava v. State of M.P reported in AIR 1999 SC 2984 ; 1999 (7) SCC 120, to the effect that in respect of education, both the Union as well as the States have power to legislate on education including medical education, and therefore, it has been decided that while the State cannot adversely affect the standards laid down by the Union of India as per Entry 66 of List I of Schedule VII, the State is entitled to impose more stringent conditions other than what has been imposed by the Central Body by way of additional qualification, thereby holding that by imposing such additional qualification, the State or the University is not transcending into the powers of the Central Government. That came to be considered by the latest Judgment of the Hon'ble Supreme Court in Visveswaraya Technological University v. Krishnendu Halder reported in 2011 (4) MLJ 878. Of course, that is a case relating to admission of students. While holding that merely because certain vacancies are going to be lapsed, the State or the University cannot reduce the qualification required for admission less than that established by AICTE, it has been the categoric stand of the Hon'ble Supreme Court that Adhiyaman's Judgment has been in effect nullified by the subsequent march of law. As far as the power of the University to independently decide when an application for affiliation was made, in spite of the fact that as per entry 66 of List I Schedule VII of the Constitution of India, the AICTE has granted approval is concerned, the said issue came to be decided by a Full Bench of the Principal Seat of this Court in Rukmani College of Education v. The State of Tamil Nadu reported in 2008 (1) CTC 545, wherein one of us [P.JYOTHIMANI, J] is a party. While dealing with the contention that the conduct of the University in granting affiliation is a matter of course, when once AICTE has granted approval, the Full Bench has held as follows:- "21. In none of these Judgments, the Supreme Court has laid down that the grant of affiliation by the University is a matter of course or mere formality once the expert body set up by the Central Act had granted the permission. All the Judgments of the Supreme Court arose out of a case where either State Governments insisted upon the prior approval from them or the University Acts contained a provision for prior approval from the State Governments. In all the cases, the issue was only in regard to the requirement of 'no objection certificate' from the State https://hcservices.ecourts.gov.in/hcservices/ 4 Government and not with respect to the academic standards prescribed by the University." 7. It is also significant to point out that as per Section 14(3) of NCTE Act, any college has to comply with the requirements of NCTE. The University while considering the grant of affiliation is entitled to find out the correctness of the particulars furnished to NCTE. The Full Bench, while taking note of the provisions of NCTE Act, especially Section 14(3) of the Act, has observed as follows:- "It would only mean that normally affiliation should not be refused on the ground that which are covered by Section 14(3) of the NCTE Act, as the Council has already satisfied itself that the institute meets these requirements. However, this would not be an absolute rule and the University can make a limited enquiry as to whether the institution has proper facilities, competent teaching staff, etc., in consonance with Section 14(3) of the NCTE Act. If it is found that the college does not have the adequate facilities, qualified teaching staff, adequate financial resources, etc., or permission has been obtained by deception or fraudulent means, it would be open for the University to refer the matter to the NCTE for appropriate action. After all it is the University which confers the degree. It is the credibility, reputation or goodwill of the University which is at stake. Therefore, in our opinion, no institution can claim affiliation as a matter of right.", thereby holding that the Affiliating University has every right to verify the correctness of the particulars furnished to the NCTE. Even if it is found that the college has given incorrect particulars to NCTE, the Affiliating University can, at the most, refer the same to NCTE for appropriate action. 8. In addition to the above Judgment, it is brought to the notice of this Court that recently a Division Bench of this Court in Self Financing Pvt. Teacher Training Institutes Assn. V State of Tamil Nadu reported in 2011 (5) MLJ 605 has followed the recent Judgment of the Hon'ble Supreme Court in Bhartia Education Society and Another v. State of Himachal Pradesh and others reported in 2011 (3) Scale 48. It is useful to extract the relevant portion of the Hon'ble Supreme Court, which has been followed by the Division Bench, which is as follows:- "22. Sub-section (6) of Section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that https://hcservices.ecourts.gov.in/hcservices/ 5 the institution does not have adequate financial resources, accommodation, library, qualified staff, or laboratory required for proper functioning of the institution." 9. In such view of the matter, since the Full Bench has, in categoric terms, held that the grant of approval is not a matter of course and the same has to be considered only in accordance with the statutes of the University concerned, no one can direct the University to act against its own statutes. The contention of the learned Additional Advocate General that the first respondent college has not obtained necessary permission from the competent authority for conversion of lands to put up construction for the college can, at the most, be attempted to be found out from the college through the records by the appellant - University and if it is found out that such permission for conversion of the land has not been obtained, the appellant - University can only refer it to AICTE, as observed by the Full Bench, elicited above. 10. It is true that the said deficiencies regarding conversion have not been pointed out by the appellant - University while not granting affiliation. Since we have already elicited that the Affiliating University has raised only three deficiencies to be complied with and according to the learned counsel for the first respondent college, the first respondent college has complied with all the deficiencies pointed out by the Inspection Committee, we modify the Paragraph No.20 of the order of the learned Single Judge only with a direction to the appellant University to consider the reply made by the first respondent college dated 25.07.2011 on merits and in accordance with law and based on its own statutes and pass appropriate orders regarding the grant of affiliation. 11. It is now informed that in respect of two other colleges, provisional affiliation has been granted and they are also admitting the students and that privilege has not been given to the first respondent college. According to the learned Additional Advocate General, the last date for counselling is 08.08.2011. 12. Considering the above said submission that there is an allegation of discrimination, we are of the view that even though the last date for counselling has expired, the appellant University should consider the reply of the first respondent college dated 25.07.2011 for the purpose of grant of affiliation as per the statutes for the academic year 2011 – 2012 and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. The Writ Appeal stands disposed of with the above modification. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- 09/08/2011 This appeal having been posted on this day i.e., Wednesday, the tenth day of August, Two thousand Eleven in pursuance of the order of this Court dated 09.08.2011 and made herein in the presence of the aforesaid Advocate the Court made the following order: https://hcservices.ecourts.gov.in/hcservices/ 6 Today, the learned counsel appearing for the first respondent college has submitted that the last date for counselling has been extended to 17.08.2011. 2. The learned Additional Advocate General for the appellant is present. 3. In such view of the matter, the appellant is directed to consider the reply of the first respondent college dated 25.07.2011 and pass appropriate orders within a period of (10) ten days from the date of receipt of a copy of this order. SD/- Assistant Registrar (T & P) (*)Corrected order as per order dated 17/08/2011 /True copy/ Sub Assistant Registrar(C.S) To 1.The Registrar, Anna University of Technology, Madurai, Madurai District 625 002 2.The Secretary to Government, Higher Education Department, Government of Tamil Nadu, Fort St.George, Chennai 600 009 3.The Commissioner – cum-Director of Technical Education, Guindy, Chennai. +1. CC to Mr.Veera.Kathiravan, Advocate, SR.No. 26787 +1. CC to the Special Government Pleader, SR.No. 26743 NB W.A.(MD).No.740 of 2011 09.09.2011/10.08.2011 TR : 19.08.2011: 6p/6c https://hcservices.ecourts.gov.in/hcservices/