{"id":43463,"date":"2009-01-23T00:00:00","date_gmt":"2009-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-manage-vs-the-university-of-calicut-on-23-january-2009"},"modified":"2017-10-10T05:45:49","modified_gmt":"2017-10-10T00:15:49","slug":"the-manage-vs-the-university-of-calicut-on-23-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-manage-vs-the-university-of-calicut-on-23-january-2009","title":{"rendered":"The Manage vs The University Of Calicut on 23 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
The Manage vs The University Of Calicut on 23 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 17639 of 2008(Y)\n\n\n\n1. THE MANAGE,JYOTHI ENGG.COLLEGE\n                      ...  Petitioner\n\n                        Vs\n\n1. THE UNIVERSITY OF CALICUT\n                       ...       Respondent\n\n                For Petitioner  :SRI.KURIAN GEORGE KANNAMTHANAM (SR.)\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice ANTONY DOMINIC\n\n Dated :23\/01\/2009\n\n O R D E R\n                   ANTONY DOMINIC,J.\n        --------------------------------\n         W.P.(C).Nos. 17639,17643, 31848,31849\n                     33407 & 33420\/08\n        --------------------------------\n          Dated this the 23rd day of January, 2009.\n\n                        JUDGMENT\n<\/pre>\n
     WP(c).Nos.17639\/08 and 31848\/08 are filed by the<\/p>\n
Manager,    Jyothi  Engineering   College,   Cheruthuruthy,<\/p>\n
Thrissur District. WP(c).Nos.17643\/08 & 31838\/2008 are<\/p>\n
filed by the Manager, Sahrdaya College of Engineering &<\/p>\n
Technology. WP(C).No.33407\/08 is filed by           certain<\/p>\n
students    of  Jyothi  Engineering   College   and WP(c).<\/p>\n
No.33420\/2008 is filed by the Students of Sahrdaya College<\/p>\n
of Engineering & Technology.\n<\/p>\n
     2. I shall first deal with WP(C).Nos.17639\/08 &<\/p>\n
17643\/08. For the sake of convenience I shall be referring<\/p>\n
to the facts as pleaded in WP(c).No.17639\/08. Petitioner is<\/p>\n
a    self-financing engineering college affiliated to the<\/p>\n
University of Calicut. Ext.P1 dated 10.2.2003 is the first<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:2:-<\/span><\/p>\n
order of provisional affiliation that was granted to the College<\/p>\n
for   the year 2002-03. It was specified that the affiliation<\/p>\n
granted is purely provisional         for the year 2002-03, the<\/p>\n
college has to apply for continuation of provisional affiliation<\/p>\n
for the ensuing years and that selection and admission of<\/p>\n
students shall be made as per the norms and rules fixed by<\/p>\n
the AICTE. Ext.P2         order dated 1.11.2004 is the order of<\/p>\n
provisional affiliation for the year 2004-05. In this order, it<\/p>\n
was specified that admission to the next academic year shall<\/p>\n
be made only after obtaining prior permission from the<\/p>\n
University. Similarly, Ext.P3 order dated 10.5.2006 is the order<\/p>\n
granting provisional affiliation for the year 2005-06 which<\/p>\n
also contained conditions similar to what was incorporated in<\/p>\n
Exts.P1 and P2.\n<\/p>\n
      3.   According      to  the  management,      they  made<\/p>\n
applications for affiliation for the subsequent years also, but<\/p>\n
however, orders were not issued by the University. While so, it<\/p>\n
is alleged that the Government of Kerala started pressurizing<\/p>\n
the Managements to surrender 50% of the seats and to admit<\/p>\n
Wp(c).Nos.17639\/08 & conn.          -:3:-<\/span><\/p>\n
students in that quota at fees applicable to the students in the<\/p>\n
Government Colleges. This was resisted by the management<\/p>\n
and they did not enter into           a seat sharing or fee sharing<\/p>\n
agreement. It is stated that provoked by the defiant attitude<\/p>\n
on the part of the management, acting upon the directions of<\/p>\n
the Government, the Registrar of the University issued Ext.P4,<\/p>\n
relevant portion of which, is extracted below for reference.<\/p>\n
      “It is mandatory that selection and admission of
\n      students to the course be made from the admission
\n      scheduled
\n      Examination.by      the    Commissioner      for Entrance<\/p>\n
     In the affidavit cited as 3, the Principal and the Manager
\n     of the Educational Agency had agreed to carry out
\n     faithfully, the provisions of the University Act, Statute,
\n     Ordinances, regulations and directions issued by the
\n     University from time to time and they will not indulge in
\n     any activity detrimental to the interest of the University
\n     as well as the student community. If they have done
\n     anything against the interest of the University, the
\n     University can proceed with strict action including the
\n     withdrawal of affiliation and they will not approach any
\n     agency for the redressal of their grievances.\n<\/p><\/blockquote>\n
      As    you    are    violating\n      University\/Govt     and    actingtheagainst\n                                            directions  of   the\n                                                   the  affidavit\n<\/pre>\n
      executed, I am to inform you that continuation of
\n      provisional affiliation for the ensuing years will not be
\n      granted.”<\/p><\/blockquote>\n
Wp(c).Nos.17639\/08 & conn.       -:4:-<\/span><\/p>\n
       4. Ext.P4 order was challenged before this court in WP<\/p>\n
(C).No.22545\/07. That writ petition was disposed of by Ext.P5<\/p>\n
judgment taking note of the admission of the University that<\/p>\n
the Registrar who issued Ext.P4 did not have power to issue<\/p>\n
such orders.       Accordingly, the order was quashed without<\/p>\n
prejudice to the right of the University to proceed further in<\/p>\n
accordance with law.\n<\/p>\n
      5. The Petitioner submits that, in the meanwhile also<\/p>\n
there was no response to their applications for affiliation and<\/p>\n
therefore by Ext.P6 they requested the University to grant<\/p>\n
affiliation for the academic years 2006-07 and 2007-08 for<\/p>\n
which they had already made application. While the University<\/p>\n
continued in its inertia,      it    issued Ext.P7 circular dated<\/p>\n
22.2.2008, directing the managements to submit a copy of<\/p>\n
the provisional affiliation order\/continuation of the provisional<\/p>\n
affiliation order of the same year\/permanent affiliation order<\/p>\n
as the case may be, along with the application for<\/p>\n
examinations from March, 2008 examination onwards. As the<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:5:-<\/span><\/p>\n
petitioner also had to present their students for annual<\/p>\n
examination and as per Ext.P7, the University directed the<\/p>\n
Management to produce the orders of affiliation along with<\/p>\n
the applications for examination, the Petitioner again<\/p>\n
submitted Ext.P8, to the University, requesting to issue orders<\/p>\n
extending the provisional affiliation for the year 2006-07 and<\/p>\n
2007-08. It is stated that there was no response on the part<\/p>\n
of the University.\n<\/p>\n
      6. While the position stood as such, as in the previous<\/p>\n
years, the petitioner admitted students and they underwent<\/p>\n
their courses. At the end of the first year, the college applied<\/p>\n
to the University for the annual examinations and paid fee at<\/p>\n
the prescribed rates.      However, almost at the eve of the<\/p>\n
examinations, which were to commence on 19.6.2008, the<\/p>\n
Principal received telephonic message from the University that<\/p>\n
the first year students, who were admitted in the academic<\/p>\n
year 2007-08, will not be permitted to appear for the<\/p>\n
examinations.\n<\/p>\n
      7. It is there upon that they filed this writ petition before<\/p>\n
Wp(c).Nos.17639\/08 & conn.     -:6:-<\/span><\/p>\n
this court on 12.6.2008 and on 17.6.2008 this court passed<\/p>\n
an interim order directing the respondents to permit the first<\/p>\n
year students of the petitioner college to appear for their<\/p>\n
University examinations provisionally and subject to the result<\/p>\n
of the writ petition and further directing that their results shall<\/p>\n
not be published except after attaining orders from this court.<\/p>\n
Accordingly the students appeared for the examinations. It is<\/p>\n
stated that long thereafter      the University issued a press<\/p>\n
release on 3.9.2008, which is produced as Ext.R1(a) in the<\/p>\n
counter affidavit in WP(c).No.31849\/08 that the college is not<\/p>\n
affiliated.\n<\/p>\n
      8. The main contention raised by the Senior counsel for<\/p>\n
the petitioner was that the college having made attempts in<\/p>\n
time for its continued provisional affiliation, the University had<\/p>\n
the obligation to pass orders and as the University has not<\/p>\n
done so, the college is entitled to have continued provisional<\/p>\n
affiliation for that reason itself. Counsel       placed    heavy<\/p>\n
reliance on the judgment of this court in Jubilee Mission<\/p>\n
Medical College & Research Institute V. University of Calicut<\/p>\n
Wp<\/span><\/a>(c).Nos.17639\/08 & conn.       -:7:-<\/p>\n
(2008(4) KLT 966.         On  the other hand the stand of the<\/p>\n
University is that the petitioner was granted provisional<\/p>\n
affiliation for starting engineering college during the academic<\/p>\n
year 2002-03 and that the same was conditional. It is stated<\/p>\n
that a perusal of Exts.P1 to P3 would show that the College<\/p>\n
could have granted admission to students only after affiliation<\/p>\n
is obtained. It is stated that the college did not have continued<\/p>\n
affiliation from the year 2006-07 onwards and therefore<\/p>\n
admission granted to students is against the order of<\/p>\n
affiliation and also the provisions of the University Statutes<\/p>\n
which prohibits admission on an anticipatory basis. Thus the<\/p>\n
contention raised by the counsel for the University is that the<\/p>\n
University is justified in its stand that the students are not<\/p>\n
entitled to appear for the examination for the reason that to<\/p>\n
present students for examination is a privilege available only<\/p>\n
to affiliated colleges.\n<\/p>\n
      9. In so far as WP(c).No.17643\/08        filed by Manager,<\/p>\n
Sahrdaya College is concerned, the facts are identical.<\/p>\n
    10. In so far as WP(c).Nos.31848\/08 and 31849\/08 are<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:8:-<\/span><\/p>\n
concerned these cases are also filed by             the Manager,<\/p>\n
Sahrdaya College of Engineering & Technology and the<\/p>\n
Manager, Jyothi Engineering College respectively. In these<\/p>\n
cases,    the issue is in relation to the students who were<\/p>\n
admitted during the academic year 2006-07. In so far as the<\/p>\n
4th semester students are concerned, their examination was to<\/p>\n
start on 29.10.2008 and in so far as the 6th semester students<\/p>\n
are concerned their examination was to commence on<\/p>\n
30.10.2008. On 28.10.2008, the University issued Ext.P14,<\/p>\n
which is extracted below for reference.\n<\/p>\n
      “As you know, the 4th and 6th semester B.Tech
\n      regular\/supplementary examinations are commencing
\n      from 29.10.2008 and 30.10.2008 respectively. You
\n      have not produced the continuation of Provisional
\n      Affiliation orders of the current academic year till
\n      date.<\/p><\/blockquote>\n
\n      ITickets\/Question\n          am    therefore  informingfor you            Hall\n                           paper          thethat the\n                                               above  said\n<\/pre>\n
      examinations of June 2008 will not be forwarded to
\n      your college.”<\/p><\/blockquote>\n
      11. Since the University thus informed that hall tickets<\/p>\n
will not be issued for the regular\/supplementary examination,<\/p>\n
these writ petitions were filed on 29.10.2008 and this court<\/p>\n
passed an interim order directing the University to permit the<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:9:-<\/span><\/p>\n
students to participate in the examinations with effect from<\/p>\n
30.10.2008 as per the schedule of examination already drawn<\/p>\n
by the University. It was clarified that their participation in the<\/p>\n
examination will be provisional. Thus the 4th semester<\/p>\n
students could not appear in the examination held on<\/p>\n
29.10.2008, and the result of all students are yet to be<\/p>\n
published by the University.\n<\/p>\n
      12. In so far as WP(c).No.33407\/08 are concerned, the<\/p>\n
petitioners are the students of Jyothi Engineering College.<\/p>\n
petitioners 1 to 3, commenced their studies in the academic<\/p>\n
year 2002-03 and completed in 2006-07. Similarly the<\/p>\n
petitioners 10 to 25 who commenced their studies in 2004-05<\/p>\n
completed their course in 2007-08.\n<\/p>\n
      13. In so far as the petitioners in WP(c).No.33420\/08 are<\/p>\n
concerned, they are        the students in Sahrdaya College of<\/p>\n
Engineering & Technology. Petitioners 1 to 9 commenced<\/p>\n
their studies in 2003-04 and completed in 2006-07.<\/p>\n
petitioners 10 to 30 also commenced their studies in 2004-05<\/p>\n
and completed in 2007-08.\n<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:10:-<\/span><\/p>\n
      14. All the Petitioners in the aforesaid two cases<\/p>\n
registered for the 4th semester supplementary examination<\/p>\n
and they were all issued hall tickets. However, in view of the<\/p>\n
order dated 28.10.2008, referred to as Ext.P14 in WP(c).<\/p>\n
No.31848\/08, examination was not held on 29.10.2008 and<\/p>\n
hence they could not appear for the same. However, on the<\/p>\n
strength of the interim order passed by this court on<\/p>\n
29.10.2008 in WP(c).Nos.31848\/08 and 31849\/08, these<\/p>\n
petitioners also appeared for the examinations held since<\/p>\n
30.10.2008. According to these petitioners at the time when<\/p>\n
they commenced their course, the college had affiliation and<\/p>\n
therefore the controversy between the University and the<\/p>\n
Management, could not have affected their right to appear for<\/p>\n
the supplementary examination. In these writ petitions the<\/p>\n
prayer they have          made is that the University should be<\/p>\n
directed    to    conduct    the   4th  semester B.  Tech   and<\/p>\n
supplementary        examinations     notified to be   held  on<\/p>\n
29.10.2008 for the candidates who have registered their<\/p>\n
names showing the aforesaid colleges as their centres for<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:11:-<\/span><\/p>\n
examination and to publish the results along with the results<\/p>\n
of examination as notified by the University.<\/p>\n
      15. In these two cases, the defence of the University is<\/p>\n
that the colleges did not have affiliation. However, during the<\/p>\n
course of the arguments the counsel for the University took<\/p>\n
the stand that        they had sent hall tickets and it was the<\/p>\n
responsibility     of   the  college   concerned     to   conduct<\/p>\n
examination for the petitioners in WP(c).No.33407\/08 and WP<\/p>\n
(c).No.33420\/08. According to them, if the petitioners lost the<\/p>\n
opportunity to appear in any examination, the colleges are<\/p>\n
responsible and that if a complaint in that behalf is received<\/p>\n
the University is willing to take action against the college.<\/p>\n
      16. This submission was strongly refuted by both the<\/p>\n
students as well as the Managements, mainly relying on the<\/p>\n
communication dated 28.10.2008( referred as Ext.P14 herein<\/p>\n
above) where it is stated that the University will not be<\/p>\n
sending       hall      tickets\/question    papers     for   the<\/p>\n
regular\/supplementary         examinations.  The    management<\/p>\n
contends that the University did not send the question papers<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:12:-<\/span><\/p>\n
and it was therefore that the students lost their opportunity.<\/p>\n
In this context a development that took place during the<\/p>\n
pendency of the writ petition needs to be noticed. The<\/p>\n
University issued a notification on 5.1.2009 which is extracted<\/p>\n
below for reference.\n<\/p>\n
      “In continuation to the notification of even No. dated
\n      13.11.2008, it is notifiedB.Tech
\n                                 for the information of all
\n      concerned      that  the            Fourth   Semester
\n      Examination (2000 & 2004 admission) scheduled on
\n      29th October 2008 at Sahradaya Engineering College
\n      and Jyothi Engineering College is re-scheduled to be
\n      conducted on Saturday 17th January 2009 at the
\n      respective centres from 9.30 am to 12.30 pm.”<\/p><\/blockquote>\n
      17. From the notification it can be seen that the<\/p>\n
University has re-scheduled the examination which was<\/p>\n
scheduled on 29.10.2008 to 17th January, 2009 at the<\/p>\n
respective centres. It was made clear by the counsel for the<\/p>\n
University    that all students who lost their opportunity to<\/p>\n
appear in the examination on 29.10.2008 are by this<\/p>\n
notification permitted to appear for the examination held on<\/p>\n
17th January, 2009.\n<\/p>\n
      18. As already noticed, except in WP(c).Nos.33407\/08<\/p>\n
and 33420\/08, in the other             four cases the Petitioner<\/p>\n
Wp(c).Nos.17639\/08 & conn.     -:13:-<\/span><\/p>\n
managements contended that, they having made application<\/p>\n
for affiliation, it was the duty of the University to have passed<\/p>\n
orders continuing their affiliation and that University having<\/p>\n
not passed any orders, the provisional affiliation already<\/p>\n
granted will continue till orders are passed. On the other<\/p>\n
hand, the University resists this argument by contending that<\/p>\n
the Petitioner colleges did not have continued provisional<\/p>\n
affiliation for the years subsequent to 2006-07. It is the<\/p>\n
correctness of this contention which needs mainly to be<\/p>\n
examined.\n<\/p>\n
      19. Sri. P.C Sasidharan, during the course of his<\/p>\n
argument submitted that the academic year has been defined<\/p>\n
in Chapter 2(1), First Ordinance as commencing on first of<\/p>\n
June and ending with 31st March of the succeeding year.<\/p>\n
According to him, going by the admitted case of the<\/p>\n
Petitioners in WP(c).No.1763\/08, the application for affiliation<\/p>\n
for the academic year 2006-07 was made only on 26.12.2006.<\/p>\n
He also submitted that the application for the year 2007-08<\/p>\n
was made only on 18.7.2007. According to him, the case of<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:14:-<\/span><\/p>\n
the Petitioner in WP(c).No.17643\/08 also stands on a similar<\/p>\n
footing. He contended that the time limit for making an<\/p>\n
application is      specified in statute I Chapter XXIII of the<\/p>\n
aforesaid Statute and in terms on clause 19(1) of the<\/p>\n
University Statute the College could not have granted<\/p>\n
admission in anticipation of affiliation. He contended that the<\/p>\n
University’s obligation to pass orders on application for<\/p>\n
affiliation before the commencement of the academic year is<\/p>\n
coupled with a duty on the part of the Managements to make<\/p>\n
application to the University well ahead of the commencement<\/p>\n
of the academic year and within the time specified in Chapter<\/p>\n
XXIII of the Statute. It is on that basis he contended that, the<\/p>\n
judgment of this court in 2008(4) KLT 966 is inapplicable to<\/p>\n
the case in question. He therefore proceeded to contend that<\/p>\n
the colleges did not have the affiliation and      the right to<\/p>\n
present students for examination being a privilege available<\/p>\n
only to affiliated colleges, the petitioner colleges are not<\/p>\n
entitled to present their students for examination.<\/p>\n
Wp(c).Nos.17639\/08 & conn.    -:15:-<\/span><\/p>\n
      20. It is the correctness of the aforesaid contention of<\/p>\n
the standing counsel which is to be resolved in this writ<\/p>\n
petition. Obviously, the colleges in question are recognized by<\/p>\n
the All India Council for Technical Education constituted under<\/p>\n
the AICTE Act. In fact, referring to the counter affidavit, the<\/p>\n
standing counsel for the University even went to the extent of<\/p>\n
arguing that the Petitioners did not have AICTE recognition<\/p>\n
and that it was therefore that they are silent on that aspect in<\/p>\n
the pleadings. In order to dispel      that impression, Senior<\/p>\n
Counsel for the Manager      made available     copies   of the<\/p>\n
proceedings issued by the AICTE for the period from 2002-08,<\/p>\n
granting recognition to both the colleges. Once a college is<\/p>\n
recognized by the AICTE, the time frame incorporated in<\/p>\n
Chapter XXIII Statute-I is inapplicable to such college. It has<\/p>\n
been so held by the Apex Court in State of Maharashtra V.<\/p>\n
Santdnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.<\/a><\/p>\n
(2006(9) SCC Page-1). This position has been reiterated by a<\/p>\n
Full Bench of this court in Vikram Sarabhai E. Trust & B. Ed<\/p>\n
College V. University of Calicut<\/a> (2008(2)KLT 1027). In that<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:16:-<\/span><\/p>\n
case, referring to corresponding provisions in the NCTE Act,<\/p>\n
the Apex Court held that the provisions of the University Act<\/p>\n
would not apply to an institution governed under the NCTE<\/p>\n
Act   and that as per the scheme         of the said Act, once<\/p>\n
recognition has been granted by NCTE under Section 14(6) of<\/p>\n
the Act, every University is obliged to grant affiliation to such<\/p>\n
institutions. In the light of this binding pronouncement of the<\/p>\n
Apex Court, I must accept the contention of the petitioners,<\/p>\n
the time frame incorporated in Statute-I of Chapter XXIII, can<\/p>\n
have no relevance in so far as the Petitioner colleges are<\/p>\n
concerned, so long as it enjoys AICTE approval.<\/p>\n
      21. I shall now proceed to examine whether in the past,<\/p>\n
the University was insisting on the time frame in respect of<\/p>\n
the colleges like the petitioner. As already noticed, in terms of<\/p>\n
the Ist Ordinance, academic year commences on the Ist of<\/p>\n
June of every year. Ext.P1 is the order of provisional affiliation<\/p>\n
issued to the Petitioner in WP(c).No.17639\/08 for 2002-03.<\/p>\n
That order is dated 10.2.2003. By Ext.P2, continued<\/p>\n
provisional affiliation for the year 2004-05 was granted and<\/p>\n
Wp(c).Nos.17639\/08 & conn.     -:17:-<\/span><\/p>\n
that order is dated 1.11.2004. Similarly, Ext.P3 order, granting<\/p>\n
provisional affiliation for the year 2005-06 is issued on<\/p>\n
10.5.2006.      Similarly in so far as the petitioner in WP(c).<\/p>\n
No.17643\/08 is concerned, Ext.P1 order of provisional<\/p>\n
affiliation for the year 2002-03 was issued on 10.2.2003.<\/p>\n
Ext.P3 continuation of provisional affiliation for 2004-05 is<\/p>\n
dated 4.2.2005 and Ext.P3, for the year 2006-07 is dated<\/p>\n
22.11.2006. Along with I.A. No.457\/09 in WP(c).No.31849\/08<\/p>\n
Petitioner produced two other orders as Exts.P14 and P15<\/p>\n
therein. Ext.P14 is the order granting provisional affiliation for<\/p>\n
the year 2006-07, to Vidya Academy of Science and<\/p>\n
Technology, Trissur for starting MCA course. This order is<\/p>\n
dated 4.10.2006. Ext.P15 is the order continuing the<\/p>\n
affiliation for the year 2007-08 and that order is dated<\/p>\n
15.1.2008.\n<\/p>\n
      22. Evidently, apart from the order of affiliation that<\/p>\n
was issued for the academic year 2002-03 and all other<\/p>\n
orders     are issued long after the commencement of the<\/p>\n
academic year.\n<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:18:-<\/span><\/p>\n
      23. In addition to this it should also be noticed that it<\/p>\n
was for the first time that the University issued circular dated<\/p>\n
22.2.2008 requiring the colleges to enclose orders of<\/p>\n
provisional     affiliation along    with the  applications   for<\/p>\n
examination from 2008, March onwards. In this circular it is<\/p>\n
stated inter alia thus,<\/p>\n
      “More over, applications for Continuation of
\n      Provisional Affiliation of the course should be
\n      submitted at the beginning of every academic
\n      year from 2008-09. Colleges which have not
\n      applied for Continuation of Provisional Affiliation
\n      upto 2007-08 should apply for the same
\n      forthwith.”\n<\/p>\n
\nHere again, for the first time, the University was demanding<\/p>\n
that the applications for continuation of provisional affiliation<\/p>\n
should be made before the commencement of the academic<\/p>\n
year.\n<\/p>\n
      24. Petitioners also refer to Ext.P16 produced along with<\/p>\n
I.A.NO.457\/09 in WP(c).No.31849\/08. This order was issued<\/p>\n
by the University on 29.4.2008 and is extracted below in full<\/p>\n
for reference.\n<\/p>\n
Wp(c).Nos.17639\/08 & conn.        -:19:-<\/span><\/p>\n
      “Certain affiliated Colleges are not applying for
\n      continuation of Provisional Affiliation to the courses
\n      for each academic year in time after getting
\n      provisional affiliation.\n<\/p><\/blockquote>\n
            The Syndicate considered the matter vide Item
\n      No.2008.239(confirmed vide Item No.2008.246 on
\n      3.4.2008) and resolved to impose a fine on the
\n      colleges who fail to apply for Continuation of
\n      Provisional Affiliation to the courses in time in each
\n      academic year.\n<\/p><\/blockquote>\n
            Sanction has, therefore, been accorded by the
\n      Vice-Chancellor implementing the decision of the
\n      Syndicate imposing fine on the colleges who fail to
\n      apply for Continuation of Provisional Affiliation to the
\n      courses in time in each academic year as follows:\n<\/p><\/blockquote>\n
            1)     Government     and     Aided    Arts     and
\n      Science\/Oriental title Colleges Rs.1,000\/- per Annum.\n<\/p><\/blockquote>\n
            2)     Unaided Arts and Science\/Oriental title
\n      Colleges Rs.2,000\/- per Annum.\n<\/p><\/blockquote>\n
            3)     Professional   Colleges   Rs.5,000\/-      per\n      Annum.\n\n      Orders are issued accordingly.\n                                               Sd\/-\n                                  (DEPUTY REGISTRAR(G&A I)\n                                         FOR REGISTRAR\nTO\n      The Principals of all\n      Affiliated Colleges.\n                              (with the request to apply for\n<\/pre>\n
                         Continuation of Provisional Affiliation
\n                         to the Courses before July of every
\n                         academic year)”<\/p><\/blockquote>\n
Wp(c).Nos.17639\/08 & conn.         -:20:-<\/span><\/p>\n
      25. From this order, it can be seen that the University<\/p>\n
has recognized that there are affiliated colleges which were<\/p>\n
not even applying for continuation of provisional affiliation for<\/p>\n
each academic year in time. This issue was considered by the<\/p>\n
Syndicate and instead of taking any action against the<\/p>\n
colleges, as in these cases, the Syndicate resolved to impose<\/p>\n
fine on the colleges which failed to apply for continuation of<\/p>\n
provisional affiliation in time in each academic year. It was in<\/p>\n
pursuance to that resolution of the Syndicate that Ext.P16 was<\/p>\n
issued, with a request to the members of the affiliated<\/p>\n
colleges to apply for continuation of provisional affiliation to<\/p>\n
the course before July of every academic year, which again is<\/p>\n
after the commencement of the academic year.<\/p>\n
      26. Therefore, not only that the University was not<\/p>\n
issuing orders of affiliation, before the commencement of the<\/p>\n
academic year, but the University has also accepted         that<\/p>\n
there are colleges which did not apply for continuation of<\/p>\n
provisional affiliation and decided to levy fine on them for<\/p>\n
granting continued        affiliation. These documents therefore<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:21:-<\/span><\/p>\n
substantiate the contention of the petitioners that the<\/p>\n
University was       never insisting   that the affiliated colleges<\/p>\n
should make applications for continuation of their provisional<\/p>\n
affiliation before the commencement of the academic year or<\/p>\n
within the time frame as indicated in Statue-I of Chapter XXIII<\/p>\n
of the University Statute.\n<\/p>\n
      27. These factual positions cannot be disputed and are<\/p>\n
in fact not disputed. If that be so, the question is whether<\/p>\n
the University was justified in refusing to admit the students<\/p>\n
to the examination conducted. In my view, it is not possible<\/p>\n
for the University to take such drastic and ill-advised step.<\/p>\n
      28. Thus the situation in these cases is that the colleges<\/p>\n
have in fact applied for continuation of provisional affiliation<\/p>\n
and the University has not passed orders thereon. If that be<\/p>\n
so, that the colleges are entitled to proceed as if they enjoyed<\/p>\n
continued provisional affiliation. This question has already<\/p>\n
been considered by a learned single Judge of this court in<\/p>\n
Jubilee Mission MedicalCollege V.Universityof Calicut)2008(4)<\/p>\n
KLT 966, where in paragraph 22 and 23 it has been held thus.<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:22:-<\/span><\/p>\n
      “22. I have already referred to the cut off date
\n      mentioned in the Statute in Chap.XXIII in the matter of
\n      application for affiliation and with reference to the
\n      date within which the Syndicate will have to take a
\n      decision under Cl.6 of Chap.XXIII of the First Statute.
\n      Since the currency of affiliation is a sine qua non for
\n      the continued legitimacy of the courses being offered
\n      and run in any affiliated institution, it is obligatory on
\n      the part of the University to take a decision in the
\n      matter of continuance of the provisional affiliation or
\n      confirmation of the provisional affiliation before the
\n      commencement of the academic year as such. In my
\n      view, if the University does not take a decision in the
\n      matter of either continuance of the provisional
\n      affiliation or confirmation of the affiliation before the
\n      expiry of the period of provisional affiliation, then the
\n      provisional affiliation must be treated as having been
\n      extended for one more year, rendering legitimacy to
\n      the affiliated institutions continuing to offer its
\n      courses in the same manner in which it was one
\n      during the currency of the provisional affiliation. In
\n      my view, this certainty is absolutely required to lend
\n      sanctity to the action taken by the University and
\n      instill confidence in the mind of the students who
\n      were prosecuting different courses in the affiliated
\n      institutions. To recognise a power in the University to
\n      take a decision in the matter of continuation of the
\n      provisional affiliation at any point of time or to
\n      consider the absence of any decision by the University
\n      in the matter of continuation of provisional affiliation
\n      or confirmation of the same, as equivalent to
\n      cessation of the affiliation would tantamount to
\n      conferment of power which is not clearly spelt out by
\n      the First Statute. Even otherwise any such exercise of
\n      power would be unfair and arbitrary and violative of
\n      Art.14 of the Constitution. I am of the view that the
\n      paramount consideration namely the interests of the
\n      students, would obviously afford justification that
\n      such an interpretation be placed on the relevant First
\n      Statutes in Chap.XXIII.\n<\/p><\/blockquote>\n
Wp(c).Nos.17639\/08 & conn.         -:23:-<\/span><\/p>\n
      23.
\n      to beOnce    the above position is accepted, it also has
\n               clarified, that even if therefore provisional
\n      affiliation is deemed to be current, during any period,
\n      by reason of the University not having taken a
\n      decision within the expiry of the period for which
\n      provisional affiliation was originally granted, it does
\n      not derogate from the right of the University to
\n      exercise its power under Cl.14 of Chap.XXIII of the
\n      First Statute. But obviously the power under Cl.14 be   to
\n      withdraw oronly
\n      exercised
\n      continuance of a provisional affiliationeffect.<\/p><\/blockquote>\n
\n                      suspend affiliation by itself shouldThe\n                           with    prospective\n                                                   beyond the\n<\/pre>\n
      period for which it was originally granted by the
\n      respondent in the circumstances mentioned above,
\n      would not be affected by exercise of power under
\n      Cl.14 of Chap.XXIII of the First Statute. If this be the
\n      position in law, then it follows that in the present case
\n      the two institutions should be treated as having
\n      continued on a provisional affiliation on the same
\n      terms and conditions as were incorporated in the last
\n      among the provisional affiliation orders issued in their
\n      favour for the year 2007-2008 and 2008-09.              In
\n      other words, these two institutions should be deemed
\n      to be authorised to continue to offer courses which
\n      they were permitted to offer as per the provisional
\n      affiliation orders last granted, in their favour. It is so
\n      declared. The University shall recognise these two
\n      institutions presently functioning with an order of
\n      provisional affiliation, subject to such terms and
\n      conditions as incorporation in the last among the
\n      provisional orders issued. I also make it clear that I
\n      have not dealt with the existence of any of the factors
\n      which the University feels is sufficient to either
\n      declare that the conditions of affiliation have not been
\n      fulfilled by these institutions or proceed towithexercise
\n      the    power    which undoubtedly       vests         the
\n      University under Cl.14 of Chap.XXIII of the First
\n      Statute. I make specific reference to the contentions
\n      of the University that these two institutions have<\/p>\n
Wp(c).Nos.17639\/08 & conn.        -:24:-<\/span><\/p>\n
      contravened the condition in the provisional affiliation
\n      order dealing with the manner in which they have
\n      effected admission over the years. If the University
\n      feels that such conditions have been contravened,
\n      then they are entitled to institute an enquiry and take
\n      such action as is available to them under the
\n      University Act and the First Statutes, subject to the
\n      parameters which have already been noted above.
\n      But subject to the above, these two institutions are
\n      entitled to be treated as functioning on the strength
\n      of provisional affiliation for the academic year 2007-
\n      08 and 2008-09.”<\/p><\/blockquote>\n
      29. Therefore, the action of the respondent university<\/p>\n
in treating the petitioner colleges as having no provisional<\/p>\n
affiliation and on that basis refusing to send question papers<\/p>\n
for regular\/supplementary examinations, cannot be upheld.<\/p>\n
      30. It was contended by the University in the counter<\/p>\n
affidavit filed in WP(c).No.31849\/08 that the colleges have<\/p>\n
violated the norms framed by the AICTE. The norms relied on<\/p>\n
by the University are AICTE (Norms and Guidelines for Fee<\/p>\n
and Guidelines for Admission in Provisional Colleges)<\/p>\n
Regulations 1994 and clause 80 relied on.\n<\/p>\n
      31. Answering this contention of the University, counsel<\/p>\n
for the Petitioner contended that these norms were framed in<\/p>\n
the context of the Apex Court judgment in Unnikrishan J.P. V.<\/p>\n
Wp(c).Nos.17639\/08 & conn.        -:25:-<\/span><\/p>\n
State of Andhrapradesh (1993(1)SCC 645) and that overruling<\/p>\n
of the said judgment, in the judgment in T.M.A Pai<\/p>\n
Foundation V. State of Kerala, the Apex Court expressly held<\/p>\n
that the regulations framed on that basis will stand<\/p>\n
withdrawn. It is therefore stated that the regulation relied on<\/p>\n
by the University does not survive. In view of my findings on<\/p>\n
the question of affiliation, I do not consider it necessary to<\/p>\n
pronounce on this issue.\n<\/p>\n
      32. Another contention that was raised by the University<\/p>\n
in the counter affidavit in WP(c).No.31848\/09 was that the<\/p>\n
Syndicate     of   the    University    constituted an Inspection<\/p>\n
Commission and they conducted an inspection of Jyothi<\/p>\n
Engineering College on 11.11.2008. Ext.R1(c) is the report<\/p>\n
and referring to the report it is stated that since the College<\/p>\n
refused to co-operate and even challenged the authority of<\/p>\n
the University, the inspection could not be conducted and for<\/p>\n
that reason the college is not entitled to have        continued<\/p>\n
affiliation. The petitioner therein has filed a reply affidavit<\/p>\n
producing      Ext.P15 order dated 22.10.2008 issued by the<\/p>\n
Wp(c).Nos.17639\/08 & conn.    -:26:-<\/span><\/p>\n
University constituting the Inspection Team and according<\/p>\n
sanction “to verify whether these colleges had followed the<\/p>\n
directions of the Government\/University in the matter of fee<\/p>\n
collection\/admission of students etc”. It is further ordered<\/p>\n
that ” the inspection commission will fix the date of inspection<\/p>\n
in consultation with the Principal and the subject experts and<\/p>\n
will prepare a report on the subject and forward the report to<\/p>\n
the University along with recommendation in general.” It is<\/p>\n
stated that contrary to this, without even a     notice to the<\/p>\n
petitioner, the members of the inspection team came to the<\/p>\n
college on 11.11.2008. According to the Petitioner they did<\/p>\n
co-operate with the inspection team        and the team was<\/p>\n
satisfied with the facilities provided and that still they<\/p>\n
attempted to persuade the petitioner to compromise with the<\/p>\n
Government to sort out its problems.          According to the<\/p>\n
Petitioner,     they asked for copies of certain documents<\/p>\n
unrelated to the terms of          reference and since these<\/p>\n
documents were asked all on a sudden, the Petitioner asked<\/p>\n
for a list so that the copies can be taken out and given. It is<\/p>\n
Wp(c).Nos.17639\/08 & conn.    -:27:-<\/span><\/p>\n
stated that then one of the members contacted somebody in<\/p>\n
the University and enquired whether the list should be given<\/p>\n
and according to the Petitioner answer appeared to be in the<\/p>\n
negative. It is stated that there upon, they did not make any<\/p>\n
further enquiry and left the college.\n<\/p>\n
      33. Although what transpired at the time of inspection<\/p>\n
is a matter of dispute and cannot be resolved in this<\/p>\n
proceeidngs, from Ext.R1(c) Inspection report produced in WP<\/p>\n
(c).No.31848\/08 it would appear that the contents of the<\/p>\n
report are totally alien to what the committee was ordered to<\/p>\n
ascertain as per Ext.P15 order of the University. From the<\/p>\n
order it is evident that the scope of the enquiry was only to<\/p>\n
verify whether the college had followed the directions of the<\/p>\n
Government\/University in the matter of fee collection\/<\/p>\n
admission of students. Nothing in relation to that issue, is<\/p>\n
seen mentioned in Ext.R1(c) report of the committee. In this<\/p>\n
context, I should also make reference to the judgment of this<\/p>\n
court in WP(c).No.30965\/2005, where in the context of the<\/p>\n
provisions contained in the Kerala University Act and the All<\/p>\n
Wp(c).Nos.17639\/08 & conn.       -:28:-<\/span><\/p>\n
India Council for Technical Education Act, a learned Judge has<\/p>\n
held that once AICTE grants approval further enquiry by the<\/p>\n
University to find out whether required facilities are available<\/p>\n
is unnecessary and unwarranted. The learned judge also held<\/p>\n
that the University’s power of inspection, is circumscribed by<\/p>\n
the provisions of the Statute.\n<\/p>\n
      34. In this case, the only provision in the University<\/p>\n
Statute      for the appointment of the commission and<\/p>\n
inspection is statute 9(a) of Chapter XXIII which reads as<\/p>\n
under.\n<\/p>\n
      The University may appoint a Commission to inspect
\n      the proposed site of a new college\/or to make a
\n      physical verification of the facilities that may exist for
\n      starting the new college\/course, if the application is
\n      considered
\n      commission will inspectbythethesuitability of the
\n                      favourably               University. The<\/p>\n
      proposed site, verify the title deeds as regards the
\n      proprietory right of the Management over the land
\n      (and
\n      accommodation providedany) any, assets of the
\n               buildings,    if             offered,   building
\n      Management, constitution ofifthe registered body and
\n      all other relevant matters. Further action on the
\n      application shall be taken on receipt of the report of
\n      this commission.\n<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:29:-<\/span><\/p>\n
    35. Irrespective of the provisions in statute 9(a) , since the<\/p>\n
appointment of the committee was with the specific points<\/p>\n
mentioned in Ext.P15, the Commission ought to have confined<\/p>\n
its enquiry to the terms of its appointment, which did not do.<\/p>\n
If that be so, I cannot find fault with the college for asking for<\/p>\n
a list of documents and       since the enquiry admittedly was<\/p>\n
regarding issues which were beyond the scope of Ext.P15<\/p>\n
order, there is no substance in the complaint that the college<\/p>\n
did not co-operate with the inspection team. However, it is<\/p>\n
clarified that this finding     should not be understood        as<\/p>\n
holding that the University does not have any power of<\/p>\n
inspection. So long as the power of Inspection is exercised<\/p>\n
for ascertaining matters which are laid down in the University<\/p>\n
Statutes it is the college’s obligation to facilitate such<\/p>\n
inspection.\n<\/p>\n
      36. From the above discussions, the only conclusion<\/p>\n
that is possible is that the petitioner colleges     having made<\/p>\n
application for continued provisional affiliation, the University<\/p>\n
ought to have passed orders thereon. This the University did<\/p>\n
Wp(c).Nos.17639\/08 & conn.      -:30:-<\/span><\/p>\n
not do and therefore colleges are entitled to enjoy the benefits<\/p>\n
of provisional affiliation which it had. till order is passed on<\/p>\n
the application. Therefore, the University ought to have sent<\/p>\n
hall tickets and question papers for the examinations which<\/p>\n
reference has been made earlier and its action to the contrary<\/p>\n
cannot be upheld.          Therefore,   it is directed that the<\/p>\n
appearance of the students in the examinations pursuant to<\/p>\n
the interim orders passed by this court shall be regularized<\/p>\n
and the answer papers shall be valued and results declared.<\/p>\n
      37. Some of the students could not appear for the<\/p>\n
examination held on 29.10.2008. This examination has been<\/p>\n
rescheduled as held on 17.1.2009 as per the notification<\/p>\n
dated    5.1.2009      and  both   regular  and    supplementary<\/p>\n
examinations have been held and all have been given a chance<\/p>\n
to appear. Their answer papers should also be valued.<\/p>\n
      38. It is admitted position that results of the examination<\/p>\n
held from 19.6.2008, which is the subject matter of WP(c).<\/p>\n
Nos.17639\/08 and 17643\/08 and also which has been held<\/p>\n
from 29th October, 2008, which is the subject matter of WP(c).<\/p>\n
Wp(c).Nos.17639\/08 & conn.    -:31:-<\/span><\/p>\n
No.31848\/08 and 31849\/08 have not been declared so far.<\/p>\n
      39. In view of this the University shall declare the results<\/p>\n
of the examination held from 19th June, 2008 and that of the<\/p>\n
6th semester students who appeared pursuant to the orders in<\/p>\n
WP(c).Nos.31848\/08 & 31849\/08.\n<\/p>\n
      In so far as the 4th semester students whose rescheduled<\/p>\n
examination has been held on 17.1.2009 are concerned, their<\/p>\n
answer papers shall also be valued and their results should<\/p>\n
also be published along with other 4th semester regular and<\/p>\n
supplementary students         who had      appeared for the<\/p>\n
examination held on 29.10.2008 onwards.\n<\/p>\n
      Writ petitions are disposed of as above.\n<\/p>\n<\/p>\n
                                (ANTONY DOMINIC)
\n                                        JUDGE
\nvi\/<\/p>\n
Wp(c).Nos.17639\/08 & conn.    -:32:-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court The Manage vs The University Of Calicut on 23 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-43463","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThe Manage vs The University Of Calicut on 23 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-manage-vs-the-university-of-calicut-on-23-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Manage vs The University Of Calicut on 23 January, 2009 - 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