IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1432 of 2010()
1. ALL INDIA COUNCIL FOR TECHNICAL
... Petitioner
2. THE EXECUTIVE COMMITTEE, ALL INDIA
3. REGIONAL OFFICER, REGIONAL COMMITTEE OF
Vs
1. ERNAKULATHAPPAN CHARITABLE EDUCATIONAL
... Respondent
For Petitioner :SRI.S.KRISHNAMOORTHY, CGC
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :23/09/2010
O R D E R
J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.
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W.A.Nos. 1432, 1439 & 1435 of 2010
and
W.P.(C) Nos. 24835, 24838, 24884, 24956,
24957, 24975, 25144, 25749 & 26008 of 2010
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Dated this the 23rd day of September, 2010
ORDER
J.Chelameswar, C.J.
This batch of matters, three writ appeals and 9 writ
petitions, raise certain common issues and therefore listed
before this Court by virtue of an order dated 20.08.2010 in W.A.
Nos. 1432, 1439 & 1435 of 2010. The writ appeals were filed
by the respondents in the corresponding writ petitions,
aggrieved by an interim order passed in each of those writ
petitions.
2. The factual background of this litigation is as
follows:
Each of the writ petitioners is an educational agency
intending to establish an educational institution imparting
education in various Engineering courses or (in some cases)
certain courses in B.Pharm, Business Administration and
Management. The establishment of and the standards to be
WA No. 1432 of 2010 and connected cases.
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met by such institutions is governed by an enactment known as
the “All India Council for Technical Education Act, 1987(for short
AICTE Act). Under the scheme of the said Act, a Council known
as All India Council for Technical Education is established under
Section 3 of the Act. Such a ‘Council’ is a body corporate with
perpetual succession and common seal.
3. Section 10 of the said Act prescribes the functions of the
said Council. One of the functions is to lay down norms and
standards for courses, curricula, physical and infrastructural
facilities, staff pattern, staff qualifications etc. Another function
is granting of approval to start new technical institutions or for
introduction of new courses or programmes. The Council is also
entrusted with the authority to inspect the colleges/institutions
imparting technical education. For the purpose of the present
order, the further details of the said enactment are not
necessary.
4. The norms regulating the grant of necessary permission
for the establishment of a new educational institution proposing
to impart technical education is prescribed by the policy of the
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Council from time to time. In exercise of the powers vested in
the Council for framing the policy, it published certain instructions
which are admittedly applicable in the cases of all those
institutions seeking approval with effect from the academic year
2010-11. The policy is contained in a document known as
approval process hand-book published by the AICTE which is filed
as an exhibit in all these writ petitions. Under Clause 3.1 of the
said instructions, without prior approval of the Council no
technical institution or an integrated campus offering technical
education shall not be established. The expression “technical
institution” is defined under Section 2(h) of the Act which reads
as follows:
“2. Definitions.- In this Act, unless the context otherwise
requires,-
xxx xxx
(h) “Technical institution” means an institution, not being
a University, which offers courses or programmes of technical
education , and shall include such other institutions as the
Central Government may, in consultation with the Council, by
notification in the Official Gazette, declare as technical
institutions;”
Whereas the expression “integrated campus” is defined under the
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abovementioned scheme under paragraph 2.30 as follows:
“2.30. “Integrated Campus” means a campus where
Institutes offer Technical Education in two or more different
programme in Technical Education.”
5. Paragraph 4 of the hand-book prescribes the eligibility
criteria for an application. Paragraph 5 deals with the procedure
for making the application. Paragraph 6 deals with the mode of
submitting the application. Paragraph 7 deals with the
evaluation of the applications. Under paragraph 7.1 it is
mentioned that the application should be evaluated by a Scrutiny
Committee constituted by the Chairman of the “Regional
Committee” established under Section 14 of the Act. It is
provided in the subsequent sub-paragraphs of paragraph 7 as to
the procedure to be followed by the Scrutiny Committee (details
of which may not be necessary for the present purpose). If on
such scrutiny any deficiency is noticed by the Scrutiny
Committee, the same is required to be communicated to the
applicant. Thereafter the applicant is required to rectify the
deficiencies and submit a compliance report, upon the receipt of
which a further scrutiny is contemplated under paragraph 7.5. In
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all those cases where it is found that the deficiencies are in fact
rectified, the application would be processed further. Under
paragraph 8 of the hand-book a visit by a body called ‘Expert
Committee’ to the institution to verify various aspects mentioned
in paragraph 8.1 is stipulated. The Expert Committee on such
visit after examining the various documents, buildings and other
infrastructural facilities is to report its assessment of the various
abovementioned factors. Such a report is to be considered by a
‘Regional Committee’ along with the views of the State
Government and also the concerned University. The Regional
Committee, if it is satisfied that the applicant fulfills all the
norms, makes a recommendation to the Council for the issuance
of a letter of approval. Paragraph 9 of the hand-book in this
regard reads as follows:
“9. Evaluation by the Regional Committee
The uploaded report will be made available to the
meeting of the Regional Committee, which will consider the
report along with views of concerned State Government/UT and
affiliating University and recommend further for issuance of
Letter of Approval or otherwise by the date as mentioned in
time schedule.
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The Regional Officer will inform the applicant institutions,
whose applications are recommended for grant of approval by
the Regional Committee by the date as mentioned in time
schedule for submission of a Fixed Deposit along with an
affidavit in the same respect.
Such applicant shall create a Fixed Deposit in a
Nationalised Bank or Scheduled commercial Bank recognized by
the Reserve Bank of India, for a period of 8 years in favour of
Member Secretary, All India Council for Technical Education for
an amount as applicable to the category of the Institutions
indicated below (Government and Government Aided
Institutions are exempted).
Amount of FDR
Programme Minority Institutions/ All other applicants
Institutes set up exclusively
for women/Institutions in
Hilly area in North Eastern
States
Engineering & Technology Rs.28.00 Lakhs Rs.35.00 Lakhs
Pharmacy Rs.12.00 Lakhs Rs.15.00 Lakhs
Architecture/Town Planning Rs.12.00 Lakhs Rs.15.00 Lakhs
Applied Arts & Crafts Rs.12.00 Lakhs Rs.15.00 Lakhs
MBA/PGDM Rs.12.00 Lakhs Rs.15.00 Lakhs
HMCT Rs.12.00 Lakhs Rs.15.00 Lakhs
Provided further that, in case of an application for an
integrated campus, the total amount of the requisite Fixed
Deposit shall be calculated by adding the amounts specified for
each programme.”
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It can be seen from the above extracted portion that while
making a recommendation to the Council, the Regional
Committee is also required to inform the applicant about the
recommendation along with an intimation to furnish a Fixed
Deposit of a specified sum which varies depending upon the
application.
6. On receipt of the recommendation of the Regional
Committee, the Council shall take a decision regarding the grant
of approval or otherwise in the case of each of the applicants
after examining the entire materials relevant in the context.
Paragraph 12 contemplates an appeal to an appellate committee
constituted under Section 4 of the Act, in all those cases where
an approval is denied to an applicant. Paragraph 12 (1) requires
an order denying the approval by the Council to be accompanied
by the grounds for such denial. The Appellate Committee by an
examination of all the materials placed before it by the applicant
as well as the Council shall take a final decision regarding the
entitlement of the applicant to secure the approval. It appears
from the language of the para 12 that the decision of the
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appellate committee is binding on the Council.
7. Each one of the writ petitioners is an applicant for the
approval by the Council for the establishment of either a technical
institution or an integrated campus. Without going into the
individual factual details of all these cases we may mention that
in all these cases an evaluation of the application followed by a
visit of the Expert Committee took place. In each of the cases,
certain deficiencies were noticed by the Expert committee. The
applicants/writ petitioners in all these cases claim that such
deficiencies pointed out by the Expert Committee were
subsequently rectified. Thereupon the Regional Committee made
an appropriate recommendation to the Council for grant of the
approval in some of the cases. In some cases, a communication
was also sent to the concerned applicant calling upon the
applicant to make a deposit in terms of paragraph 9 of the hand-
book. It is also the assertion in some of these writ petitions that
subsequent to such deposits, the names of some of these
institutions are shown in the website maintained by the Council
as institutions which are approved by the Council for the
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academic year 2010-11. For example, the case of the petitioners
in W.P.(C) Nos.24838 and 25144 of 2010.
8. However, each one of these writ petitioners subsequently
received a communication dated 29.07.2010 from the Council.
The relevant portion of the communication, i.e., in W.P.(C)
No.24957 of 2010 reads as follows:
“Based on recommendations of scrutiny/rescrutiny
committee, an expert committee visit was arranged to verify all
the facilities created for the proposed institute. The deficiencies
pointed by the expert committee were communicated to you
through portal. Further you were given an opportunity to
comply the deficiencies before a duly constituted appellate
committee. The appellate committee after studying your points
of compliance rejected/recommended for revisit of the institution
and incase of revisit of the expert visit reports were evaluated
by the regional committee and then executive committee.
Further, all the recommendations of the appellate
committee were considered by the Council. After duly verifying
all the points as per the regulations the council did not accord
the approval on the following grounds:-
1. Does not qualify for issue of LoA as all the deficiencies
noted by the expert visiting team has not been cleared yet.
However, a fresh application for the establishment of New
Technical Institution for the next academic year may be made.”
9. Each one of these writ petitions came to be filed
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challenging a similar communication received by each one of the
applicants. We have examined all the impugned proceedings.
We may state that barring some minor variations in the
language, the essence of all the communications is the same and
the pattern of the communication is identical. The relevant
portion of the communication in the case of W.P.(C) No.24957
of 2010 is already extracted earlier, by way of an illustration of
the nature of the communication in all these cases. It can be
seen from the above that the communication absolutely lacks
clarity without any indication as to what exactly is the deficiency
which prompted the Council to reject the application of the
applicants. We are of the opinion that the communications such
as the one challenged in all these writ petitions do not certainly
satisfy the parameters of rationality required to be satisfied in the
administrative decision making process. It is well settled that
any administrative decision which adversely affects the rights of
the subject is required to spell out with certainty the reasons
which prompted to such an adverse decision. On that short
ground, in our opinion, each one of these writ petitions is
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required to be allowed, but that does not in any way put an end
to the litigation. In each of these writ petitions, the petitioners
not only challenge the legality of the communication such as the
one extracted above, but also seek a further direction to the
Council compelling it to issue a letter of approval to each of these
petitioners. Such a further relief, in our opinion, cannot be
granted by this Court in the normal course, unless the Court is
satisfied that each of the petitioners is undoubtedly entitled under
law for the issuance of such a letter of approval. Such an
entitlement is required to be decided on the basis of number of
factors such as the existence of appropriate infrastructure,
availability of competent teaching staff, financial stability of the
educational agency to run the institution, etc. In law, such an
assessment is required to be done by the Council after following
an elaborate procedure. While making such an assessment (in
a given case or in a set of cases) if the Council commits an error
in following the appropriate procedural forms, such a failure on
the part of the Council, in our view, does not automatically entitle
the applicant to claim a relief from this Court as the one sought
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in these writ petitions.
10. The All India Council for Technical Education is a
constitutionally recognised and statutorily established body to
regulate and monitor the standards of technical education in this
country. A mere examination of the composition of the Council
specified under sub-section 4 of Section 3 of the Act would reveal
the nature of the expertise that is required to go into the
composition of a Council. Therefore, without an appropriate
assessment by such an expert body and clearance from such an
expert body after due assessment of all the relevant factors for
granting the approval, such a body cannot be compelled to grant
approval/recommendation to any applicant. Such a decision
would not only be inconsistent with the requirements of the law
but also a disservice to the cause of the technical education in
this country.
11. In the circumstances, we are of the opinion that the
impugned order in each one of these writ petitions is required to
be set aside and in the interests of justice we deem it appropriate
to direct the respondent Council to communicate each of these
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writ petitioners the precise grounds on which the approval in
each one of these cases is declined within a reasonable period of
time. Upon such communication, it shall be open to each of the
applicants to take such measures as they deem appropriate and
communicate to the Council seeking a further inspection in order
to enable the Council to record its satisfaction of the compliance
of all the norms laid down by the Council in the case of each of
the applicants. The Council thereafter shall grant the necessary
approval in all those cases which are found eligible. The entire
exercise, in our opinion, is required to be completed
expeditiously, preferably within a period of three weeks from the
date of receipt of a copy of this order by the Council.
12. Some of the learned counsel appearing in some of
these writ petitions however contended that in their cases a
further inspection or a further assessment as indicated above is
uncalled for, as the applicants/writ petitioners complied with all
the stipulations necessary for obtaining the approval from the
Council and therefore prayed that their writ petitions be
examined on merits and consequential relief of direction
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compelling the Council to grant necessary approval be granted.
13. Having heard Sri.S.Krishnamoorthy, the learned
counsel appearing for the AICTE, we deem it appropriate that the
following writ petitions be listed before an appropriate Bench on
27.09.2010 for an examination of the submission noted above:
W.P.(C) Nos. 24838, 24884, 24956, 24957,
24975, 25144 & 26008 of 2010.
14. We are informed by the learned counsel for the AICTE
that in some of these cases appropriate counter affidavits have
not been filed so far. We permit the respondent to file the
counter affidavits in the meanwhile, if they are so advised. The
Registry is directed to list these matters on 27.09.2010.
J.Chelameswar,
Chief Justice.
P.R. Ramachandra Menon,
Judge.
ttb
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