IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17639 of 2008(Y)
1. THE MANAGE,JYOTHI ENGG.COLLEGE
... Petitioner
Vs
1. THE UNIVERSITY OF CALICUT
... Respondent
For Petitioner :SRI.KURIAN GEORGE KANNAMTHANAM (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/01/2009
O R D E R
ANTONY DOMINIC,J.
--------------------------------
W.P.(C).Nos. 17639,17643, 31848,31849
33407 & 33420/08
--------------------------------
Dated this the 23rd day of January, 2009.
JUDGMENT
WP(c).Nos.17639/08 and 31848/08 are filed by the
Manager, Jyothi Engineering College, Cheruthuruthy,
Thrissur District. WP(c).Nos.17643/08 & 31838/2008 are
filed by the Manager, Sahrdaya College of Engineering &
Technology. WP(C).No.33407/08 is filed by certain
students of Jyothi Engineering College and WP(c).
No.33420/2008 is filed by the Students of Sahrdaya College
of Engineering & Technology.
2. I shall first deal with WP(C).Nos.17639/08 &
17643/08. For the sake of convenience I shall be referring
to the facts as pleaded in WP(c).No.17639/08. Petitioner is
a self-financing engineering college affiliated to the
University of Calicut. Ext.P1 dated 10.2.2003 is the first
Wp(c).Nos.17639/08 & conn. -:2:-
order of provisional affiliation that was granted to the College
for the year 2002-03. It was specified that the affiliation
granted is purely provisional for the year 2002-03, the
college has to apply for continuation of provisional affiliation
for the ensuing years and that selection and admission of
students shall be made as per the norms and rules fixed by
the AICTE. Ext.P2 order dated 1.11.2004 is the order of
provisional affiliation for the year 2004-05. In this order, it
was specified that admission to the next academic year shall
be made only after obtaining prior permission from the
University. Similarly, Ext.P3 order dated 10.5.2006 is the order
granting provisional affiliation for the year 2005-06 which
also contained conditions similar to what was incorporated in
Exts.P1 and P2.
3. According to the management, they made
applications for affiliation for the subsequent years also, but
however, orders were not issued by the University. While so, it
is alleged that the Government of Kerala started pressurizing
the Managements to surrender 50% of the seats and to admit
Wp(c).Nos.17639/08 & conn. -:3:-
students in that quota at fees applicable to the students in the
Government Colleges. This was resisted by the management
and they did not enter into a seat sharing or fee sharing
agreement. It is stated that provoked by the defiant attitude
on the part of the management, acting upon the directions of
the Government, the Registrar of the University issued Ext.P4,
relevant portion of which, is extracted below for reference.
“It is mandatory that selection and admission of
students to the course be made from the admission
scheduled
Examination.by the Commissioner for EntranceIn the affidavit cited as 3, the Principal and the Manager
of the Educational Agency had agreed to carry out
faithfully, the provisions of the University Act, Statute,
Ordinances, regulations and directions issued by the
University from time to time and they will not indulge in
any activity detrimental to the interest of the University
as well as the student community. If they have done
anything against the interest of the University, the
University can proceed with strict action including the
withdrawal of affiliation and they will not approach any
agency for the redressal of their grievances.
As you are violating
University/Govt and actingtheagainst
directions of the
the affidavit
executed, I am to inform you that continuation of
provisional affiliation for the ensuing years will not be
granted.”
Wp(c).Nos.17639/08 & conn. -:4:-
4. Ext.P4 order was challenged before this court in WP
(C).No.22545/07. That writ petition was disposed of by Ext.P5
judgment taking note of the admission of the University that
the Registrar who issued Ext.P4 did not have power to issue
such orders. Accordingly, the order was quashed without
prejudice to the right of the University to proceed further in
accordance with law.
5. The Petitioner submits that, in the meanwhile also
there was no response to their applications for affiliation and
therefore by Ext.P6 they requested the University to grant
affiliation for the academic years 2006-07 and 2007-08 for
which they had already made application. While the University
continued in its inertia, it issued Ext.P7 circular dated
22.2.2008, directing the managements to submit a copy of
the provisional affiliation order/continuation of the provisional
affiliation order of the same year/permanent affiliation order
as the case may be, along with the application for
examinations from March, 2008 examination onwards. As the
Wp(c).Nos.17639/08 & conn. -:5:-
petitioner also had to present their students for annual
examination and as per Ext.P7, the University directed the
Management to produce the orders of affiliation along with
the applications for examination, the Petitioner again
submitted Ext.P8, to the University, requesting to issue orders
extending the provisional affiliation for the year 2006-07 and
2007-08. It is stated that there was no response on the part
of the University.
6. While the position stood as such, as in the previous
years, the petitioner admitted students and they underwent
their courses. At the end of the first year, the college applied
to the University for the annual examinations and paid fee at
the prescribed rates. However, almost at the eve of the
examinations, which were to commence on 19.6.2008, the
Principal received telephonic message from the University that
the first year students, who were admitted in the academic
year 2007-08, will not be permitted to appear for the
examinations.
7. It is there upon that they filed this writ petition before
Wp(c).Nos.17639/08 & conn. -:6:-
this court on 12.6.2008 and on 17.6.2008 this court passed
an interim order directing the respondents to permit the first
year students of the petitioner college to appear for their
University examinations provisionally and subject to the result
of the writ petition and further directing that their results shall
not be published except after attaining orders from this court.
Accordingly the students appeared for the examinations. It is
stated that long thereafter the University issued a press
release on 3.9.2008, which is produced as Ext.R1(a) in the
counter affidavit in WP(c).No.31849/08 that the college is not
affiliated.
8. The main contention raised by the Senior counsel for
the petitioner was that the college having made attempts in
time for its continued provisional affiliation, the University had
the obligation to pass orders and as the University has not
done so, the college is entitled to have continued provisional
affiliation for that reason itself. Counsel placed heavy
reliance on the judgment of this court in Jubilee Mission
Medical College & Research Institute V. University of Calicut
Wp(c).Nos.17639/08 & conn. -:7:-
(2008(4) KLT 966. On the other hand the stand of the
University is that the petitioner was granted provisional
affiliation for starting engineering college during the academic
year 2002-03 and that the same was conditional. It is stated
that a perusal of Exts.P1 to P3 would show that the College
could have granted admission to students only after affiliation
is obtained. It is stated that the college did not have continued
affiliation from the year 2006-07 onwards and therefore
admission granted to students is against the order of
affiliation and also the provisions of the University Statutes
which prohibits admission on an anticipatory basis. Thus the
contention raised by the counsel for the University is that the
University is justified in its stand that the students are not
entitled to appear for the examination for the reason that to
present students for examination is a privilege available only
to affiliated colleges.
9. In so far as WP(c).No.17643/08 filed by Manager,
Sahrdaya College is concerned, the facts are identical.
10. In so far as WP(c).Nos.31848/08 and 31849/08 are
Wp(c).Nos.17639/08 & conn. -:8:-
concerned these cases are also filed by the Manager,
Sahrdaya College of Engineering & Technology and the
Manager, Jyothi Engineering College respectively. In these
cases, the issue is in relation to the students who were
admitted during the academic year 2006-07. In so far as the
4th semester students are concerned, their examination was to
start on 29.10.2008 and in so far as the 6th semester students
are concerned their examination was to commence on
30.10.2008. On 28.10.2008, the University issued Ext.P14,
which is extracted below for reference.
“As you know, the 4th and 6th semester B.Tech
regular/supplementary examinations are commencing
from 29.10.2008 and 30.10.2008 respectively. You
have not produced the continuation of Provisional
Affiliation orders of the current academic year till
date.
ITickets/Question
am therefore informingfor you Hall
paper thethat the
above said
examinations of June 2008 will not be forwarded to
your college.”
11. Since the University thus informed that hall tickets
will not be issued for the regular/supplementary examination,
these writ petitions were filed on 29.10.2008 and this court
passed an interim order directing the University to permit the
Wp(c).Nos.17639/08 & conn. -:9:-
students to participate in the examinations with effect from
30.10.2008 as per the schedule of examination already drawn
by the University. It was clarified that their participation in the
examination will be provisional. Thus the 4th semester
students could not appear in the examination held on
29.10.2008, and the result of all students are yet to be
published by the University.
12. In so far as WP(c).No.33407/08 are concerned, the
petitioners are the students of Jyothi Engineering College.
petitioners 1 to 3, commenced their studies in the academic
year 2002-03 and completed in 2006-07. Similarly the
petitioners 10 to 25 who commenced their studies in 2004-05
completed their course in 2007-08.
13. In so far as the petitioners in WP(c).No.33420/08 are
concerned, they are the students in Sahrdaya College of
Engineering & Technology. Petitioners 1 to 9 commenced
their studies in 2003-04 and completed in 2006-07.
petitioners 10 to 30 also commenced their studies in 2004-05
and completed in 2007-08.
Wp(c).Nos.17639/08 & conn. -:10:-
14. All the Petitioners in the aforesaid two cases
registered for the 4th semester supplementary examination
and they were all issued hall tickets. However, in view of the
order dated 28.10.2008, referred to as Ext.P14 in WP(c).
No.31848/08, examination was not held on 29.10.2008 and
hence they could not appear for the same. However, on the
strength of the interim order passed by this court on
29.10.2008 in WP(c).Nos.31848/08 and 31849/08, these
petitioners also appeared for the examinations held since
30.10.2008. According to these petitioners at the time when
they commenced their course, the college had affiliation and
therefore the controversy between the University and the
Management, could not have affected their right to appear for
the supplementary examination. In these writ petitions the
prayer they have made is that the University should be
directed to conduct the 4th semester B. Tech and
supplementary examinations notified to be held on
29.10.2008 for the candidates who have registered their
names showing the aforesaid colleges as their centres for
Wp(c).Nos.17639/08 & conn. -:11:-
examination and to publish the results along with the results
of examination as notified by the University.
15. In these two cases, the defence of the University is
that the colleges did not have affiliation. However, during the
course of the arguments the counsel for the University took
the stand that they had sent hall tickets and it was the
responsibility of the college concerned to conduct
examination for the petitioners in WP(c).No.33407/08 and WP
(c).No.33420/08. According to them, if the petitioners lost the
opportunity to appear in any examination, the colleges are
responsible and that if a complaint in that behalf is received
the University is willing to take action against the college.
16. This submission was strongly refuted by both the
students as well as the Managements, mainly relying on the
communication dated 28.10.2008( referred as Ext.P14 herein
above) where it is stated that the University will not be
sending hall tickets/question papers for the
regular/supplementary examinations. The management
contends that the University did not send the question papers
Wp(c).Nos.17639/08 & conn. -:12:-
and it was therefore that the students lost their opportunity.
In this context a development that took place during the
pendency of the writ petition needs to be noticed. The
University issued a notification on 5.1.2009 which is extracted
below for reference.
“In continuation to the notification of even No. dated
13.11.2008, it is notifiedB.Tech
for the information of all
concerned that the Fourth Semester
Examination (2000 & 2004 admission) scheduled on
29th October 2008 at Sahradaya Engineering College
and Jyothi Engineering College is re-scheduled to be
conducted on Saturday 17th January 2009 at the
respective centres from 9.30 am to 12.30 pm.”
17. From the notification it can be seen that the
University has re-scheduled the examination which was
scheduled on 29.10.2008 to 17th January, 2009 at the
respective centres. It was made clear by the counsel for the
University that all students who lost their opportunity to
appear in the examination on 29.10.2008 are by this
notification permitted to appear for the examination held on
17th January, 2009.
18. As already noticed, except in WP(c).Nos.33407/08
and 33420/08, in the other four cases the Petitioner
Wp(c).Nos.17639/08 & conn. -:13:-
managements contended that, they having made application
for affiliation, it was the duty of the University to have passed
orders continuing their affiliation and that University having
not passed any orders, the provisional affiliation already
granted will continue till orders are passed. On the other
hand, the University resists this argument by contending that
the Petitioner colleges did not have continued provisional
affiliation for the years subsequent to 2006-07. It is the
correctness of this contention which needs mainly to be
examined.
19. Sri. P.C Sasidharan, during the course of his
argument submitted that the academic year has been defined
in Chapter 2(1), First Ordinance as commencing on first of
June and ending with 31st March of the succeeding year.
According to him, going by the admitted case of the
Petitioners in WP(c).No.1763/08, the application for affiliation
for the academic year 2006-07 was made only on 26.12.2006.
He also submitted that the application for the year 2007-08
was made only on 18.7.2007. According to him, the case of
Wp(c).Nos.17639/08 & conn. -:14:-
the Petitioner in WP(c).No.17643/08 also stands on a similar
footing. He contended that the time limit for making an
application is specified in statute I Chapter XXIII of the
aforesaid Statute and in terms on clause 19(1) of the
University Statute the College could not have granted
admission in anticipation of affiliation. He contended that the
University’s obligation to pass orders on application for
affiliation before the commencement of the academic year is
coupled with a duty on the part of the Managements to make
application to the University well ahead of the commencement
of the academic year and within the time specified in Chapter
XXIII of the Statute. It is on that basis he contended that, the
judgment of this court in 2008(4) KLT 966 is inapplicable to
the case in question. He therefore proceeded to contend that
the colleges did not have the affiliation and the right to
present students for examination being a privilege available
only to affiliated colleges, the petitioner colleges are not
entitled to present their students for examination.
Wp(c).Nos.17639/08 & conn. -:15:-
20. It is the correctness of the aforesaid contention of
the standing counsel which is to be resolved in this writ
petition. Obviously, the colleges in question are recognized by
the All India Council for Technical Education constituted under
the AICTE Act. In fact, referring to the counter affidavit, the
standing counsel for the University even went to the extent of
arguing that the Petitioners did not have AICTE recognition
and that it was therefore that they are silent on that aspect in
the pleadings. In order to dispel that impression, Senior
Counsel for the Manager made available copies of the
proceedings issued by the AICTE for the period from 2002-08,
granting recognition to both the colleges. Once a college is
recognized by the AICTE, the time frame incorporated in
Chapter XXIII Statute-I is inapplicable to such college. It has
been so held by the Apex Court in State of Maharashtra V.
Santdnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.
(2006(9) SCC Page-1). This position has been reiterated by a
Full Bench of this court in Vikram Sarabhai E. Trust & B. Ed
College V. University of Calicut (2008(2)KLT 1027). In that
Wp(c).Nos.17639/08 & conn. -:16:-
case, referring to corresponding provisions in the NCTE Act,
the Apex Court held that the provisions of the University Act
would not apply to an institution governed under the NCTE
Act and that as per the scheme of the said Act, once
recognition has been granted by NCTE under Section 14(6) of
the Act, every University is obliged to grant affiliation to such
institutions. In the light of this binding pronouncement of the
Apex Court, I must accept the contention of the petitioners,
the time frame incorporated in Statute-I of Chapter XXIII, can
have no relevance in so far as the Petitioner colleges are
concerned, so long as it enjoys AICTE approval.
21. I shall now proceed to examine whether in the past,
the University was insisting on the time frame in respect of
the colleges like the petitioner. As already noticed, in terms of
the Ist Ordinance, academic year commences on the Ist of
June of every year. Ext.P1 is the order of provisional affiliation
issued to the Petitioner in WP(c).No.17639/08 for 2002-03.
That order is dated 10.2.2003. By Ext.P2, continued
provisional affiliation for the year 2004-05 was granted and
Wp(c).Nos.17639/08 & conn. -:17:-
that order is dated 1.11.2004. Similarly, Ext.P3 order, granting
provisional affiliation for the year 2005-06 is issued on
10.5.2006. Similarly in so far as the petitioner in WP(c).
No.17643/08 is concerned, Ext.P1 order of provisional
affiliation for the year 2002-03 was issued on 10.2.2003.
Ext.P3 continuation of provisional affiliation for 2004-05 is
dated 4.2.2005 and Ext.P3, for the year 2006-07 is dated
22.11.2006. Along with I.A. No.457/09 in WP(c).No.31849/08
Petitioner produced two other orders as Exts.P14 and P15
therein. Ext.P14 is the order granting provisional affiliation for
the year 2006-07, to Vidya Academy of Science and
Technology, Trissur for starting MCA course. This order is
dated 4.10.2006. Ext.P15 is the order continuing the
affiliation for the year 2007-08 and that order is dated
15.1.2008.
22. Evidently, apart from the order of affiliation that
was issued for the academic year 2002-03 and all other
orders are issued long after the commencement of the
academic year.
Wp(c).Nos.17639/08 & conn. -:18:-
23. In addition to this it should also be noticed that it
was for the first time that the University issued circular dated
22.2.2008 requiring the colleges to enclose orders of
provisional affiliation along with the applications for
examination from 2008, March onwards. In this circular it is
stated inter alia thus,
“More over, applications for Continuation of
Provisional Affiliation of the course should be
submitted at the beginning of every academic
year from 2008-09. Colleges which have not
applied for Continuation of Provisional Affiliation
upto 2007-08 should apply for the same
forthwith.”
Here again, for the first time, the University was demanding
that the applications for continuation of provisional affiliation
should be made before the commencement of the academic
year.
24. Petitioners also refer to Ext.P16 produced along with
I.A.NO.457/09 in WP(c).No.31849/08. This order was issued
by the University on 29.4.2008 and is extracted below in full
for reference.
Wp(c).Nos.17639/08 & conn. -:19:-
“Certain affiliated Colleges are not applying for
continuation of Provisional Affiliation to the courses
for each academic year in time after getting
provisional affiliation.
The Syndicate considered the matter vide Item
No.2008.239(confirmed vide Item No.2008.246 on
3.4.2008) and resolved to impose a fine on the
colleges who fail to apply for Continuation of
Provisional Affiliation to the courses in time in each
academic year.
Sanction has, therefore, been accorded by the
Vice-Chancellor implementing the decision of the
Syndicate imposing fine on the colleges who fail to
apply for Continuation of Provisional Affiliation to the
courses in time in each academic year as follows:
1) Government and Aided Arts and
Science/Oriental title Colleges Rs.1,000/- per Annum.
2) Unaided Arts and Science/Oriental title
Colleges Rs.2,000/- per Annum.
3) Professional Colleges Rs.5,000/- per
Annum.
Orders are issued accordingly.
Sd/-
(DEPUTY REGISTRAR(G&A I)
FOR REGISTRAR
TO
The Principals of all
Affiliated Colleges.
(with the request to apply for
Continuation of Provisional Affiliation
to the Courses before July of every
academic year)”
Wp(c).Nos.17639/08 & conn. -:20:-
25. From this order, it can be seen that the University
has recognized that there are affiliated colleges which were
not even applying for continuation of provisional affiliation for
each academic year in time. This issue was considered by the
Syndicate and instead of taking any action against the
colleges, as in these cases, the Syndicate resolved to impose
fine on the colleges which failed to apply for continuation of
provisional affiliation in time in each academic year. It was in
pursuance to that resolution of the Syndicate that Ext.P16 was
issued, with a request to the members of the affiliated
colleges to apply for continuation of provisional affiliation to
the course before July of every academic year, which again is
after the commencement of the academic year.
26. Therefore, not only that the University was not
issuing orders of affiliation, before the commencement of the
academic year, but the University has also accepted that
there are colleges which did not apply for continuation of
provisional affiliation and decided to levy fine on them for
granting continued affiliation. These documents therefore
Wp(c).Nos.17639/08 & conn. -:21:-
substantiate the contention of the petitioners that the
University was never insisting that the affiliated colleges
should make applications for continuation of their provisional
affiliation before the commencement of the academic year or
within the time frame as indicated in Statue-I of Chapter XXIII
of the University Statute.
27. These factual positions cannot be disputed and are
in fact not disputed. If that be so, the question is whether
the University was justified in refusing to admit the students
to the examination conducted. In my view, it is not possible
for the University to take such drastic and ill-advised step.
28. Thus the situation in these cases is that the colleges
have in fact applied for continuation of provisional affiliation
and the University has not passed orders thereon. If that be
so, that the colleges are entitled to proceed as if they enjoyed
continued provisional affiliation. This question has already
been considered by a learned single Judge of this court in
Jubilee Mission MedicalCollege V.Universityof Calicut)2008(4)
KLT 966, where in paragraph 22 and 23 it has been held thus.
Wp(c).Nos.17639/08 & conn. -:22:-
“22. I have already referred to the cut off date
mentioned in the Statute in Chap.XXIII in the matter of
application for affiliation and with reference to the
date within which the Syndicate will have to take a
decision under Cl.6 of Chap.XXIII of the First Statute.
Since the currency of affiliation is a sine qua non for
the continued legitimacy of the courses being offered
and run in any affiliated institution, it is obligatory on
the part of the University to take a decision in the
matter of continuance of the provisional affiliation or
confirmation of the provisional affiliation before the
commencement of the academic year as such. In my
view, if the University does not take a decision in the
matter of either continuance of the provisional
affiliation or confirmation of the affiliation before the
expiry of the period of provisional affiliation, then the
provisional affiliation must be treated as having been
extended for one more year, rendering legitimacy to
the affiliated institutions continuing to offer its
courses in the same manner in which it was one
during the currency of the provisional affiliation. In
my view, this certainty is absolutely required to lend
sanctity to the action taken by the University and
instill confidence in the mind of the students who
were prosecuting different courses in the affiliated
institutions. To recognise a power in the University to
take a decision in the matter of continuation of the
provisional affiliation at any point of time or to
consider the absence of any decision by the University
in the matter of continuation of provisional affiliation
or confirmation of the same, as equivalent to
cessation of the affiliation would tantamount to
conferment of power which is not clearly spelt out by
the First Statute. Even otherwise any such exercise of
power would be unfair and arbitrary and violative of
Art.14 of the Constitution. I am of the view that the
paramount consideration namely the interests of the
students, would obviously afford justification that
such an interpretation be placed on the relevant First
Statutes in Chap.XXIII.
Wp(c).Nos.17639/08 & conn. -:23:-
23.
to beOnce the above position is accepted, it also has
clarified, that even if therefore provisional
affiliation is deemed to be current, during any period,
by reason of the University not having taken a
decision within the expiry of the period for which
provisional affiliation was originally granted, it does
not derogate from the right of the University to
exercise its power under Cl.14 of Chap.XXIII of the
First Statute. But obviously the power under Cl.14 be to
withdraw oronly
exercised
continuance of a provisional affiliationeffect.
suspend affiliation by itself shouldThe
with prospective
beyond the
period for which it was originally granted by the
respondent in the circumstances mentioned above,
would not be affected by exercise of power under
Cl.14 of Chap.XXIII of the First Statute. If this be the
position in law, then it follows that in the present case
the two institutions should be treated as having
continued on a provisional affiliation on the same
terms and conditions as were incorporated in the last
among the provisional affiliation orders issued in their
favour for the year 2007-2008 and 2008-09. In
other words, these two institutions should be deemed
to be authorised to continue to offer courses which
they were permitted to offer as per the provisional
affiliation orders last granted, in their favour. It is so
declared. The University shall recognise these two
institutions presently functioning with an order of
provisional affiliation, subject to such terms and
conditions as incorporation in the last among the
provisional orders issued. I also make it clear that I
have not dealt with the existence of any of the factors
which the University feels is sufficient to either
declare that the conditions of affiliation have not been
fulfilled by these institutions or proceed towithexercise
the power which undoubtedly vests the
University under Cl.14 of Chap.XXIII of the First
Statute. I make specific reference to the contentions
of the University that these two institutions haveWp(c).Nos.17639/08 & conn. -:24:-
contravened the condition in the provisional affiliation
order dealing with the manner in which they have
effected admission over the years. If the University
feels that such conditions have been contravened,
then they are entitled to institute an enquiry and take
such action as is available to them under the
University Act and the First Statutes, subject to the
parameters which have already been noted above.
But subject to the above, these two institutions are
entitled to be treated as functioning on the strength
of provisional affiliation for the academic year 2007-
08 and 2008-09.”
29. Therefore, the action of the respondent university
in treating the petitioner colleges as having no provisional
affiliation and on that basis refusing to send question papers
for regular/supplementary examinations, cannot be upheld.
30. It was contended by the University in the counter
affidavit filed in WP(c).No.31849/08 that the colleges have
violated the norms framed by the AICTE. The norms relied on
by the University are AICTE (Norms and Guidelines for Fee
and Guidelines for Admission in Provisional Colleges)
Regulations 1994 and clause 80 relied on.
31. Answering this contention of the University, counsel
for the Petitioner contended that these norms were framed in
the context of the Apex Court judgment in Unnikrishan J.P. V.
Wp(c).Nos.17639/08 & conn. -:25:-
State of Andhrapradesh (1993(1)SCC 645) and that overruling
of the said judgment, in the judgment in T.M.A Pai
Foundation V. State of Kerala, the Apex Court expressly held
that the regulations framed on that basis will stand
withdrawn. It is therefore stated that the regulation relied on
by the University does not survive. In view of my findings on
the question of affiliation, I do not consider it necessary to
pronounce on this issue.
32. Another contention that was raised by the University
in the counter affidavit in WP(c).No.31848/09 was that the
Syndicate of the University constituted an Inspection
Commission and they conducted an inspection of Jyothi
Engineering College on 11.11.2008. Ext.R1(c) is the report
and referring to the report it is stated that since the College
refused to co-operate and even challenged the authority of
the University, the inspection could not be conducted and for
that reason the college is not entitled to have continued
affiliation. The petitioner therein has filed a reply affidavit
producing Ext.P15 order dated 22.10.2008 issued by the
Wp(c).Nos.17639/08 & conn. -:26:-
University constituting the Inspection Team and according
sanction “to verify whether these colleges had followed the
directions of the Government/University in the matter of fee
collection/admission of students etc”. It is further ordered
that ” the inspection commission will fix the date of inspection
in consultation with the Principal and the subject experts and
will prepare a report on the subject and forward the report to
the University along with recommendation in general.” It is
stated that contrary to this, without even a notice to the
petitioner, the members of the inspection team came to the
college on 11.11.2008. According to the Petitioner they did
co-operate with the inspection team and the team was
satisfied with the facilities provided and that still they
attempted to persuade the petitioner to compromise with the
Government to sort out its problems. According to the
Petitioner, they asked for copies of certain documents
unrelated to the terms of reference and since these
documents were asked all on a sudden, the Petitioner asked
for a list so that the copies can be taken out and given. It is
Wp(c).Nos.17639/08 & conn. -:27:-
stated that then one of the members contacted somebody in
the University and enquired whether the list should be given
and according to the Petitioner answer appeared to be in the
negative. It is stated that there upon, they did not make any
further enquiry and left the college.
33. Although what transpired at the time of inspection
is a matter of dispute and cannot be resolved in this
proceeidngs, from Ext.R1(c) Inspection report produced in WP
(c).No.31848/08 it would appear that the contents of the
report are totally alien to what the committee was ordered to
ascertain as per Ext.P15 order of the University. From the
order it is evident that the scope of the enquiry was only to
verify whether the college had followed the directions of the
Government/University in the matter of fee collection/
admission of students. Nothing in relation to that issue, is
seen mentioned in Ext.R1(c) report of the committee. In this
context, I should also make reference to the judgment of this
court in WP(c).No.30965/2005, where in the context of the
provisions contained in the Kerala University Act and the All
Wp(c).Nos.17639/08 & conn. -:28:-
India Council for Technical Education Act, a learned Judge has
held that once AICTE grants approval further enquiry by the
University to find out whether required facilities are available
is unnecessary and unwarranted. The learned judge also held
that the University’s power of inspection, is circumscribed by
the provisions of the Statute.
34. In this case, the only provision in the University
Statute for the appointment of the commission and
inspection is statute 9(a) of Chapter XXIII which reads as
under.
The University may appoint a Commission to inspect
the proposed site of a new college/or to make a
physical verification of the facilities that may exist for
starting the new college/course, if the application is
considered
commission will inspectbythethesuitability of the
favourably University. The
proposed site, verify the title deeds as regards the
proprietory right of the Management over the land
(and
accommodation providedany) any, assets of the
buildings, if offered, building
Management, constitution ofifthe registered body and
all other relevant matters. Further action on the
application shall be taken on receipt of the report of
this commission.
Wp(c).Nos.17639/08 & conn. -:29:-
35. Irrespective of the provisions in statute 9(a) , since the
appointment of the committee was with the specific points
mentioned in Ext.P15, the Commission ought to have confined
its enquiry to the terms of its appointment, which did not do.
If that be so, I cannot find fault with the college for asking for
a list of documents and since the enquiry admittedly was
regarding issues which were beyond the scope of Ext.P15
order, there is no substance in the complaint that the college
did not co-operate with the inspection team. However, it is
clarified that this finding should not be understood as
holding that the University does not have any power of
inspection. So long as the power of Inspection is exercised
for ascertaining matters which are laid down in the University
Statutes it is the college’s obligation to facilitate such
inspection.
36. From the above discussions, the only conclusion
that is possible is that the petitioner colleges having made
application for continued provisional affiliation, the University
ought to have passed orders thereon. This the University did
Wp(c).Nos.17639/08 & conn. -:30:-
not do and therefore colleges are entitled to enjoy the benefits
of provisional affiliation which it had. till order is passed on
the application. Therefore, the University ought to have sent
hall tickets and question papers for the examinations which
reference has been made earlier and its action to the contrary
cannot be upheld. Therefore, it is directed that the
appearance of the students in the examinations pursuant to
the interim orders passed by this court shall be regularized
and the answer papers shall be valued and results declared.
37. Some of the students could not appear for the
examination held on 29.10.2008. This examination has been
rescheduled as held on 17.1.2009 as per the notification
dated 5.1.2009 and both regular and supplementary
examinations have been held and all have been given a chance
to appear. Their answer papers should also be valued.
38. It is admitted position that results of the examination
held from 19.6.2008, which is the subject matter of WP(c).
Nos.17639/08 and 17643/08 and also which has been held
from 29th October, 2008, which is the subject matter of WP(c).
Wp(c).Nos.17639/08 & conn. -:31:-
No.31848/08 and 31849/08 have not been declared so far.
39. In view of this the University shall declare the results
of the examination held from 19th June, 2008 and that of the
6th semester students who appeared pursuant to the orders in
WP(c).Nos.31848/08 & 31849/08.
In so far as the 4th semester students whose rescheduled
examination has been held on 17.1.2009 are concerned, their
answer papers shall also be valued and their results should
also be published along with other 4th semester regular and
supplementary students who had appeared for the
examination held on 29.10.2008 onwards.
Writ petitions are disposed of as above.
(ANTONY DOMINIC)
JUDGE
vi/
Wp(c).Nos.17639/08 & conn. -:32:-