IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30305 of 2009(G)
1. THE CHAIRMAN, MET'S SCHOOL OF
... Petitioner
Vs
1. UNIVERSITY OF CALICUT, REPRESENTED BY
... Respondent
2. THE VICE CHANCELLOR, UNIVERSITY OF
3. STATE OF KERALA REPRESENTED BY THE
4. THE COMMISSIONER FOR ENTRANCE
For Petitioner :SRI.KURIAN GEORGE KANNANTHANAM (SR.)
For Respondent :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :10/11/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.30305 OF 2009
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Dated this the 10th day of November, 2009
JUDGMENT
1.The petitioner, a Self-Financing Engineering College, seeks a
direction to the first respondent University to grant affiliation
for additional intake of students to B.Tech in Electronics and
Communication and in Computer Science and Engineering and
for commencing B.Tech. in Mechanical Engineering in the
light of Ext.P1 approval given by the AICTE, so as to enable
the petitioner to commence classes this year itself. A further
direction is sought for to the second respondent Vice
Chancellor to invoke his emergency power under Section 10
(13) of the Calicut University Act, 1975 in relation to the
aforesaid matter. A declaration that the petitioner is entitled
to fill up seats in the additional course and additional intake
sanctioned by the AICTE, in the event of undue delay on the
part of the University in granting affiliation, is also sought for.
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2.Respondents 1 and 2 have filed a counter affidavit. They
contend that Ext.P1 relates to the academic year 2009-2010,
which commenced in June, 2009 and what remains is only a
short span of six months in that academic year. It is pleaded
that B.Tech course is a semester programme having 8
semesters of six months duration each. The classes
commenced on 17.8.2009 and the first semester would be over
by the second week of February, 2010. The second respondent
further contends that Ext.P1 having been issued only on
29.8.2009, the petitioner would be eligible to apply for grant of
affiliation only thereafter and therefore, the petitioner’s plea
that he had applied on 25.7.2009 is not to be accepted. It is
contended that the issue is not merely of sanctioning of
additional intake but also of commencement of new courses.
The enhancement of intake and sanctioning of additional
courses in terms of Ext.P1 needs to be further processed in
terms of the University Act and Statutes before granting
affiliation, it is contended. The petitioner’s plea regarding
different representations, according to respondents 1 and 2,
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are of no avail since they were filed before obtaining Ext.P1
order of AICTE. Respondents 1 and 2 would contend that they
could not be compelled to search for information over the
Internet in relation to the petitioner. It makes specific
reference to an inspection conducted in July, 2007, wherein, it
was concluded that the infrastructure facilities are not
sufficient; the faculty is not sufficient and the approval of the
apex body has not been obtained. Respondents 1 and 2 further
pleaded that only applications which are recommended by the
Inspection Committee calls for further processing and that it
has to be done in terms of detailed procedure laid down. It is
pointed out that in terms of the provisions, the applications
have to reach the University before the 30th of June and
therefore, the question of acting on Ext.P1 and granting relief
does not arise.
3.AICTE is established as a council in terms of Section 3 of All
India Council for Technical Education Act, 1987. In terms of
the All India Council for Technical Education (Grant of
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Approval for Starting New Technical institutions, introduction
of courses or programmes and approval of intake capacity of
seats for the courses or programmes) Regulations, 1994,
hereinafter referred to as the ‘AICTE Regulations’, scrutiny of
applications are to be done by the Council. The additional
intake has been granted in terms of Ext.P1 based on the
projections shown in the detailed project report regarding the
additional built up space, faculty and other facility for the
proposed intake. All such facilities, including additional built
up area and appointment of faculty, going by Ext.P1, should be
made available before the commencement of the next
academic session. Random surprise inspections will be
carried out to evaluate facilities and if the institution is found
to be deficient in fulfillment of norms and standards of AICTE,
appropriate action would be initiated by the council. Ext.P1
has been issued by the AICTE in terms of its statutory powers.
It has been held by the Full Bench of this Court in Vikram
Sarabhai E. Trust & B.Ed. College v. University of Calicut
[2008(2) KLT 1027(FB)]; dealing with a case falling under
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National Council for Teacher Education, another statutory
body; that once recommendation is granted by a statutory
authority like the NCTE, the University is normally bound to
grant affiliation and that the same cannot be denied on the
technical contention that the application was not made before
the cut-off date. It was held by the Full Bench that when the
central body grants recognition, the University has no power
or authority to decline affiliation. It was accordingly held that
the University can insist compliance of such requirements of
the University Statute which are not in conflict with the
provisions of the Central Act and the Regulations therein. The
principles laid down in relation to NCTE applies to the case of
AICTE also. Accordingly, respondents 1 and 2, even as
regards Ext.P1 issued by the AICTE, stands bound by the Full
Bench decision in Vikram Sarabhai E. Trust (supra). The
only distinction that appears is that on facts, the infrastructure
facilities were available in that case, while in the case in hand,
the infrastructure facilities and faculty position are directed to
be maintained by the commencement of the next academic
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year. To do so is within the powers of the AICTE, going by the
AICTE Act and the AICTE Regulations. Therefore, Ext.P1
cannot be faulted on that count. It is also apposite to refer to
the judgment of this Court in W.P(C).30965/09 dated
20.12.2004, wherein, it was held that once the AICTE grants
approval, further enquiry by the University to find out whether
the required facilities are available is unnecessary and
unwarranted. Clearance of AICTE having been granted as per
Ext.P1 on 15.7.2009, the same is to be acted upon by the
University, at any rate, if it reaches the University before the
application for affiliation is rejected.
4.Section 23(i) of the Calicut University Act provides that subject
to the provisions of that Act and the Statutes, the executive
powers of the University shall be vested in the Syndicate
which shall have the power to affiliate institutions in
accordance with the terms and conditions of such affiliation
prescribed in that Act and the Statutes. Chapter 23 of the
Calicut University First Statutes, 1977, hereinafter referred to
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as the ‘First Statutes’, provide the statutes regulating
affiliation of colleges. The procedure for submitting
applications and the procedure to be adopted by the Syndicate
on receipt of applications are provided therein. The
requirement to pay fee etc. are curable defects. The
requirement to put a date in the application form is also a
curable defect though, in the case in hand, the University seal
is available on the first sheet of the original of the application,
disclosing the date of submission of the application (Ext.P5) as
27.7.2009. With this, it also needs to be stated that in terms
of the first proviso to Statute 1 in Chapter 23 of the First
statutes, late applications can be received by the University up
to 31st of December of the concerned year provided due fee in
terms of that proviso is paid. Therefore, there is no bar or ban
on the University receiving applications for affiliation after 30th
of June in relation to the professional colleges.
5.With this, the decision referred to by the learned counsel for
the University, reported as Rural Education & Social Trust
WPC.30305/09
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v. University of Calicut [2007(2) KLT 609], stated to have
been affirmed by the Apex Court, needs to be considered. This
Court had clearly stated that in terms of the provisions in the
First Statutes, no student shall be admitted before getting
affiliation to the University. The University is duty bound to
ensure standards. As laid down by the Division Bench in that
case, provisions of the Central Legislation would definitely
govern if it is inconsistent with the provisions of the University
Act or Regulations or the University First Statutes. Following
Jaya Gokul Educational Trust v. Commissioner &
Secretary to Government Higher Education Department
[2000(2) KLT 26 (SC)], the University was to consider the
grant of final or further affiliation acting on the basis of the
permission granted by the central body, viz., AICTE.
6.A conjoint reading of the Full Bench decision in Vikram
Sarabhai E. Trust (supra) and the Division Bench in Rural
Education & Social Trust (supra) would show that when
AICTE grants its approval, the University is bound to take up
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the case of affiliation and decide thereon without waiting any
further. But the question of affiliation can not be dragged on
because, the institute cannot admit students without affiliation
being granted. It having been laid down as law, in the given
fact situation, affiliation has to be necessarily granted on same
terms on which AICTE has granted the approval, in the case in
hand, in terms of Ext.P1, the University is bound to do that.
7.The learned counsel for the University states that at this
distance of time, classes have commenced and allotments have
already been concluded. This writ petition was on board on
26.10.2009. The allotment continued even thereafter. The
question of undergoing the whole course in an academic
session in a semester or year is a matter that could and will
gain the attention at the end of the first semester or year, to
determine whether a student is eligible to sit for any exam
having attained necessary attendance and having undergone
the necessary course of study to proceed to the next semester
or year or whether that student has to continue in the class to
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make up the shortage. That is not a matter that has to be
taken care of now. Each individual student will have to face
the situation as and when it arises.
For the aforesaid reasons, this writ petition is ordered
directing that respondents 1 and 2 will forthwith issue orders
granting affiliation on the basis of Ext.P1 approval of AICTE,
subject to all terms and conditions imposed by AICTE as per
Ext.P1 and subject to further clearance by the AICTE on the
basis of inspections. Therefore, it will also be open to the
University to bring to the notice of AICTE the short falls, if
any, as regards facilities and faculty as may be available before
the commencement of the next academic session. Affiliation
order shall be issued by respondents 1 and 2 provisionally,
within a period of one week from now, if necessary, by the Vice
Chancellor exercising the powers under Section 10(13) of the
Calicut University Act. In anticipation of that, respondents 3
and 4 will make allotment of students, however, that the
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petitioner would admit such students following the provisional
affiliation order that would be issued by the University as afore
directed. The petitioner will pay necessary application fee,
affiliation fee etc. and do all that is needful in terms of the
University Statutes in accordance with law. This writ petition
is ordered accordingly. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.10/11.