Kerala High Court
The Cochin College Of Engineering And ... vs State Of Kerala on 29 October, 2019
Author: S.Manikumar
Bench: S.Manikumar, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
W.A.No.2084 OF 2019
AGAINST THE JUDGMENT IN WP(C) 24162/2019(U) OF HIGH COURT OF KERALA DATED 27.9.2019
APPELLANT/PETITIONER:
THE COCHIN COLLEGE OF ENGINEERING AND TECHNOLOGY,
602B, ATHIPPATTA, VALANCHERY, MALAPPURAM DISTRICT- 676 552,
REPRESENTED ITS SECRETARY, K.RAHEEM.
BY ADV. SRI.ANOOP.V.NAIR
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2 KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR- 680 596,
REPRESENTED BY ITS REGISTRAR.
3 THE VICE CHANCELLOR,
KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O.,
THRISSUR- 680 596.
4 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDING, SANTHI NAGAR, TRIVANDRUM- 695 001.
R2-3 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE
SRI.M.A.ASIF, SPECIAL GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH
WA.2085/2019, WA.2086/2019, WA.2087/2019 & WP(C).22541/2019(P), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
W.A.No.2085 OF 2019
AGAINST THE JUDGMENT IN WP(C) 22272/2019(H) OF HIGH COURT OF KERALA DATED 27.9.2018
APPELLANT/PETITIONER IN W.P.(C):
MGM SILVER JUBILEE COLLEGE OF PHARMACY,
MGM TECHNOLOGICAL CAMPUS,
KILIMANOOR, PULIMATH P.O., PULIMATH,
THIRUVANANTHAPURAM-695 612,
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
BY ADVS.
SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHY (P-41)
SMT.REENA THOMAS
SMT.NIGI GEORGE
RESPONDENTS/RESPONDENTS IN THE WPC:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 SECRETARY, HIGHER EDUCATION DEPARTMENT,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS REGISTRAR.
3 KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR, KERALA, PIN-680 596.
R3 BY SRI.P.SREEKUMAR, SC, KERALA UTY. HEALTH AND ALLIED SCIENCE
SRI.M.A.ASIF, SPECIAL GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH
WA.2084/2019, WA.2086/2019, WA.2087/2019 & WP(C).22541/2019(P), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
W.A.No.2086 OF 2019
AGAINST THE JUDGMENT IN WP(C) 22400/2019(Y) OF HIGH COURT OF KERALA DATED 27.9.2019
APPELLANT/PETITIONER IN WPC:
MGM COLLEGE OF PHARMACY
MGM TECHNOLOGICAL CAMPUS, PILATHARA, VILAYANCODE P.O.,
CHERUTHAZHAM, KANNUR-670 501
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
BY ADVS.
SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHY (P-41)
SMT.REENA THOMAS
SMT.NIGI GEORGE
RESPONDENTS/RESPONDENTS IN WPC:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HEALTH AND
FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 SECRETARY,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
REPRESENTED BY ITS REGISTRAR.
3 KERALA UNIVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE P.O., THRISSUR, KERALA, PIN-680 596.
R3 BY SRI.P.SREEKUMAR, SC, KERALA UTY.HEALTH AND ALLIED SCIENCE
SRI.M.A.ASIF, SPECIAL GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH
WA.2084/2019, WA.2085/2019, WA.2087/2019 & WP(C).22541/2019(P), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
W.A.No.2087 OF 2019
AGAINST THE JUDGMENT IN WP(C) 22372/2019(V) OF HIGH COURT OF KERALA DATED 27.9.2019
APPELLANT/PETITIONER IN WPC:
MGM TECHNOLOGICAL CAMPUS, PAMPAKUDA.P.O., MUVATTUPUZHA,
ERNAKULAM DISTRICT, PIN-686 667,
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
BY ADVS.
SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHY (P-41)
SMT.REENA THOMAS
SMT.NIGI GEORGE
RESPONDENTS/RESPONDENTS IN WPC:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 SECREATRY,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001,
REPRESENTED BY ITS REGISTRAR.
3 KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE.P.O., THRISSUR, KERALA, PIN-680 596.
R3 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE
SRI.M.A.ASIF, SPECIAL GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH
WA.2084/2019, WA.2085/2019, WA.2086/2019, WP(C).22541/2019(P), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
W.P.(C).No.22541 OF 2019 (P)
PETITIONERS:
1 KERALA STATE SELF FINANCING PHARMACY COLLEGE
MANAGEMENT ASSOCIATION, REG. NO. 450/2004, BUILDING NO. 191,
AL-SHIFA HOSPITAL COMPLEX, P.B. NO.26, OOTY ROAD, PEINTHALMANNA,
MALAPPURAM DISTRICT - 679 322, REPRESENTED BY THE SECRETARY,
RAJITHAN E.P.B.
2 THE PRINCIPAL
CHEMISTS COLLEGE OF PHARMACEUTICAL SCIENCES AND RESERACH,
VARIKOLI, PUTHENCRUZ, ERNAKULAM DISTRICT - 682 308.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SRI.RIJI RAJENDRAN
SMT.NISHA GEORGE
SRI.J.VISHNU
SRI.VISHNU B.KURUP
SRI.A.L.NAVANEETH KRISHNAN
RESPONDENT:
THE KERALA UNIVERSITY OF HEALTH SCIENCES
MULANGUNNATHUKAVU, MEDICAL COLLEGE P.O., THRISSUR - 680 596,
REPRESENTED BY ITS REGISTRAR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2019,
ALONG WITH WA.2084/2019, WA.2085/2019, WA.2086/2019 & WA.2087/2019, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.2084, 2085, 2086, 2087 of 2019 &
W.P.(C)No.22541 of 2019
: 6 :
JUDGMENT
S.Manikumar, C.J.
In all the Writ Appeals, the challenge is to a common order made in the writ petition Nos.19393, 22272, 22372, 22400, 24162 of 2019 dated 27th September, 2019 declining to extend the time for admission of students in the institutions. W.P.(C)No.22541 of 2019 is filed for the prayers to quash Ext.P4 and Ext.P5 circulars dated 5.8.2019 and for a declaration that the cut off date fixed by the University for completion of admission to B-Pharm and M-Pharm courses is arbitrary. As pleadings and submissions are common, they are taken up together and disposed of by this common order.
2. Before the writ court, the colleges except the petitioners in W.P. (C)Nos.22372 and 24162 of 2019, were given affiliation to offer a programme in B-Pharm course by the Kerala University of Health Sciences. The petitioners in W.P.(C)Nos.22372 and 24162 of 2019 are yet to obtain affiliation. But submissions have been made at the Bar that defects noted by the University have been cured and the University is prepared to give affiliation on condition that those petitioners can admit students only from the next academic year (2020-21).
W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 7 :
3. After considering the rival contentions and the judgment of the Hon'ble Supreme Court in Parshvanath Charitable Trust v. All India Council for Technical Education reported in (2013) 3 SCC 385, writ court by a common order in W.P.(C)No.19393 of 2019 and connected cases dated 27.9.2019 dismissed the writ petitions.
4. Short facts in W.P.(C)No.22541 of 2019 are that the 1 st petitioner is an Association of Pharmacy Colleges registered under the Societies Registration Act. Though admission process have commenced in the Pharmacy Colleges, candidates who have opted to pursue the pharmacy course will be parallelly opting for MBBS, BDS, BAMS and Nursing, which are the natural higher options as a course of study in the Under Graduate Section and M.Sc-MLT, M.Sc. Optometry in the Post Graduate courses. Consequently, vacancies will arise in all the pharmacy colleges depending on the closure of admissions for other courses. Admission for the above courses will be completed only by 30 th of September as presently notified. However, the University issued Ext.P4 and Ext.P5 circular fixing 15.08.2019 as the cut-off date to complete the admission for B-Pharm and M-Pharm courses without any legal basis or rationale. Under similar circumstance, this court was pleased to pass an interim order in W.P.(C)No.19393 of W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 8 :
2019 dated 6.8.2019 (Ext.P5) and as per Ext.P6 extending the period and the period was accordingly extended as per Exts.P8 & P8(a).
Representation was given to the University explaining the circumstances to extend the period. However no action has been taken by the University as requested in Ext.P9. Hence Writ Petition (C)No.22541/2019 is filed.
5. Material on record discloses that the stand of the University that they are bound to invite applications for affiliation only in accordance with the perspective plan as per Sections 51(1) and (2) of the Kerala University of Health Sciences Act, 2010, and the perspective plan was under
preparation and only thereafter, the University need to invite applications, has been rejected by a Hon'ble Bench of this court in W.A.No.1485 of 2019 and connected cases dated 9.7.2019. The Hon'ble Division Bench ordered thus:
"11. We must also deal with the objection of the learned Standing Counsel for the University, placing reliance on the decision of the Supreme Court in Parswanath Charitable Trust v. All India Council for Technical Education [(2013) 3 SCC 385], that if a direction to consider an application for affiliation is issued from this court at this stage, it would breach the time frame stipulated by the Supreme Court in the Parswanath case (supra). In this connection, we note that the Schedule drawn up by the Supreme Court at W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 9 :
paragraph 41 of the judgment was with reference to the Schedule that was available in the AICTE Regulation 1994, as modified by the Supreme Court in the said case. While the said Regulations have since been superseded by the All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2016 and thereafter, by a similar Regulation of 2018, it is also relevant to note that the Schedule in Parswanath case (supra) fixes the time frame for grant or refusal of approval by University/State Government. We are in these cases not concerned with the grant or refusal of any approval by the University/State Government but rather with the non-consideration of an application for affiliation to the University/State Government. In our view, the time schedule prescribed in Parswanath case (supra) does not strictly apply to the grant or refusal of affiliation by the affiliating body, namely, the Kerala University of Health Sciences/Directorate of Medical Education, more so when it was the inaction of the affiliating body that led to the delayed consideration and the last date for completing admissions is not yet over.
12. The upshot of the above said discussion is that the appeals herein, against the interim order of the learned single judge, must succeed. We, therefore, allow the appeals by directing the University/State Government to consider the respective application for affiliation submitted by the colleges/institutions within a period of two weeks from the date of receipt of the application in the prescribed format from the appellant colleges/institution. To enable the appellant colleges/institutions to prefer their applications in the prescribed format the University/State Government shall open the W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 10 :
respective portals and make available the prescribed format for preferring applications for affiliation within the next two days. The period of two weeks granted to the University/State Government to complete the process of consideration of the application shall commence from the respective dates of receipt of the completed applications from the appellant colleges pursuant to the procedure directed above.
13. In the case of W.A.1489 of 2019 pertaining to Nirmala College of Pharmacy, the directions given above shall apply mutatis- mutandis to the applications for affiliation in respect of the enhanced seats, for which approval has been obtained by the college from the AICTE/PCI.
14. We make it clear that the other issues raised in the writ petitions are not being considered in this judgment, and are left open for consideration by the learned Single Judge in the pending writ petitions."
6. S.L.P.(C). No.17411/2019 filed against the final judgment in W.A. No.1485/2019 dated 9.7.2019, has been dismissed and the Hon'ble Supreme Court extended the time by one week as under:
"O R D E R Heard the learned Senior counsel appearing for the petitioners.
We find no merit in the Special Leave Petitions. The Special Leave Petitions are, accordingly dismissed. W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 11 :
However, the directions given by the Division Bench in which the matter is to be considered is extended by a period of one week from today.
Pending applications, if any, stand disposed of."
7. Thereafter, University issued a notification fixing the cut off date of admission for B.Pharm course as 15.8.2019. State of Kerala, other States and institutions moved the Hon'ble Supreme Court for extension of time. Considering the fact situation, the Hon'ble Supreme Court by a common order dated 26.8.2019 extended the time as hereunder :
" Considering the situation depicted in the application, we allow this application and grant to the State of Kerala similar extension, as was granted to the State of Maharashtra. Time is therefore, extended till 31.8.2019.
The State shall issue necessary advertisements and upload the notice to all concerned on the official website today itself.
The process shall be completed within next three days and mop up round, if any, be conducted within two days thereafter but in no case the deadline of 31.8.2019 shall be overstepped or breached.
An affidavit shall be sworn by a competent official working with the State Common Entrance Test Cell on 2.9.2019 indicating the stages and steps undertaken in W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 12 :
pursuance of this order and setting out the number of candidates that could be recommended by the State as a result of extension granted by this order.
Let the affidavit be filed by 5.9.2019.
List the matter for reporting compliance on 6.9.2019. With the aforesaid observations, these Miscellaneous Applications are allowed."
8. It is further discernible from the material on record that the institutions before the Hon'ble Supreme Court, filed I.As. in the pending writ appeals before this court and sought for extension of time and after considering the submissions, a Hon'ble Division Bench of this Court on 27.8.2019 extended the time up to 15.9.2019. Operative portion of the order reads thus:
"In the instant cases, the order for continuation of affiliation was passed by the University only on 20.8.2019, within two days after our judgment wherein we directed the University to grant continuation of affiliation. It is not in dispute that the admission of students to the B. Pharm courses and to the quota earmarked for admission by the Self Financing Institutions, cannot commence without the grant of continuation of affiliation by the University. The W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 13 :
institutions have also to get the prospectus approved by the 'admission Supervisory and Fee Regulatory Committee' for effecting the admissions. Inasmuch as the said formalities will take some time and further, the last date for completing admissions to the MBBS/BDS courses in the State is fixed as 31.8.2019, we deem it appropriate to fix the last date for admissions to the B.Pharm courses in the applicant colleges as 15.9.2019. We might clarify in this context that, we have fixed the last date as 15.9.2019 so as to ensure that the classes for those students admitted through this process would definitely commence from 16.9.2019 (Monday) and further, the period between 7.9.2019 and 15.9.2019 being holidays in the State of Kerala for Educational Institutions, the students admitted pursuant to this order will not miss any classes during the said period and their attendance requirements will not be adversely affected.
5. We are also mindful of the possibility of seats falling vacant in pharmacy colleges consequent to students exercising their option to migrate to the MBBS/BDS course, for which the last date of admission fixed by the State Government is 31.8.2019.
6. In the result, these applications are disposed by directing the Kerala University of Health Sciences to W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 14 :
extend the time for admission to B.Pharm Courses for the year 2019-2020 in the applicant colleges till 15.09.2019."
10. It is also the contention of the appellants, this Court enlarged earlier for the academic year 2018-19, the time upto 30.9.2018 and later on the University extended the time upto 31.10.2018. Circular dated 30.10.2018 of the University reads thus:
"CIRCULAR The Principals of all PHARMACY Colleges affiliated to KUHS conducting UG Courses are hereby informed tat the cut off date of admission of these courses is fixed as 31.10.2018. The online facility for temporarily registering the details of admitted students will be available in the website only till the mid night of 31.10.2018. The Colleges who fails to perform online entry of basic details due to any technical reasons can submit the basic details of the admitted students in the office of the university till 5 P.M. on 1.11.2018.
The registration of those students whose details are not entered with in the prescribed limit will not be entertained by the University under any circumstances.
Sd/-
Registrar"
W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 15 :
11. Inviting the attention of this Court to the Onam Holidays 8.9.2019 and 15.9.2019, learned Senior Counsel submitted that as the above days were Onam Public Holidays declared by the Government, for Nursing Courses, the time limit can be extended and there is no legal embargo.
12. On the above pleadings, appellants have raised the following points for consideration:
20. The question what remains to be considered is as to whether this Court is competent to enlarge the time. The following points may kindly be considered.
(1) The Parswanath Case was one dealing with an Engineering College alone. There was no opportunity to consider other issues, even the time schedule was not a bone of contention in that case. (2) The time schedule scheme of the A.I.C.T.E. Act/Regulations did not visualize cases where the approval of another statutory Body also is necessary, for which there is no time limit prescribed. (3) When Parswanath was considered, it was the 1994 Regulations of the AICTE, which included only Diploma and Degree level programs. Those Regulations were subsequently replaced by various Regulations. The Regulations now contemplate, Diploma, Degree & P.G. Level programs (Doc. No.15, 16, 17) Nobody thereafter considered the impact of the same. P.G. Admissions are not possible before the W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 16 :
results of U.G. comes. These dates would be different from Universities to Universities.
(4) All applications for enlargement of time before the Apex Court were filed by the various Governments and Governmental agencies only. The question of filling up seats by the managements were never considered by the Apex Court.
(5) When the Division Bench of this Court passed the order on 27.8.2019, the Court was well aware of the order of the Apex Court on 26.8.2019. In fact, the learned Government Pleader had handed over a copy of the order before Court.
(6) The reasons for the delay at the hands of the University even after the orders of this Court, are detailed in Annexure-I to W.A. No.2084/2019. This would show that there was callous delay on the part of the University.
(7) This Court has held that the words used in Parswanath's Case that "no person or authority" that shall vary the time schedule, has been interpreted by this Court to mean that "authority" would not include the High Court exercising power under Article 226 of the Constitution of India.
(8) Last year the last date of admission was enlarged up to 31.10.2018 by this Court and University has no case that the students actually suffered.
(9) Since the AICTE regulations include Diploma programs also, the time schedule prescribed in Parswanath case applies to Diploma programs also. The tentative schedule for D. Pharm admissions published by the Government for this year permits admissions up to W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 17 :
end of October (Doc. No.14). The Government has no objection in the matter.
(10) In the other W.As, there was a challenge against the insistence of Essentiality Certificate by the State. Since that issue was not considered, that issue may be left open.
13. Summarising the arguments, State of Kerala in their counter arguments have submitted that -
"The appellant in this writ appeal who was the writ petitioner is mainly aggrieved by the common judgment dated 27.9.2019 in W.P.(C)No.24162/2019 and connected matters to the extent the learned Single Judge declined the prayer to extend the time limit for admission to first year B Pharm Course during the academic year 2019-20.
2. The operative portion of the impugned judgment contained in paragraph 5 to 7 of the judgment is reproduced hereunder:
5. However, at this juncture, learned Senior Government Pleader brought to my attention an order passed by the Apex Court in a Miscellaneous Application by State of Kerala and other States in W.P. (C) No.19393/2019 & conn. cases 13 Parshvanath Charitable Trust's case (supra). This order was dated 26.08.2019. Confronted with the time schedule prescribed in Parshvanath Charitable Trust's case W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 18 :
(supra), the State filed application before the Apex court to extend the time upto 15.09.2019. This was taking note of the recent flood in the State. In the applications filed by the State as M.A Nos.1716 and 1717 of 2019 in C.A No.9048 of 2012, the State has specifically sought to extend the time for completing the admission process of the Pharmacy course till 15.09.2019. It is to be noted in the State, admission to the Government as well as private self financing institutions is made from the rank list prepared by the Commissioner for Entrance Examination other than in NRI seats. The Apex Court, taking note of the application of the State, permitted the State of Kerala and other States to complete the admission by 31.08.2019. It was further ordered as follows:
"The process shall be completed within next three days and mop-up round, if any, be conducted within two days thereafter but in no case the deadline of 31.08.2019 shall be overstepped or breached".
In the light of the deadline as above, if this Court passes any order W.P.(C) No.19393/2019 & conn. cases 14 extending the time to admit students, that would amount to changing the deadline fixed by the Apex Court. This Court cannot overlook the deadline fixed by W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 19 :
the Apex Court.
6. At this juncture, learned Senior Counsel pointed out the order in I.A No.1 of 2019 in Writ Appeal No.1693 of 2019 of the Division Bench of this Court dated 27.08.2019. The Division Bench ordered extension of time till 15.09.2019. Therefore, the learned Senior Counsel points out that since the Division Bench has ordered extension upto 15.09.2019 after the Apex Court fixed the deadline as 31.08.2019, it is appropriate for this Court to extend the time for admission. It is submitted that in the last academic year, this Court had extended time upto 31.10.2018 and the University passed a consequential order extending the time.
7. I am afraid, such course would not be open to this Court especially when the Apex Court ordered that the deadline as fixed in the order dated 26.08.2019 shall not be overstepped or breached in any circumstance. The Division Bench, while passing an order in I.A No.1 of 2019, had not taken note of such direction of the Apex Court.
3. It is submitted that in "Parshvanath Charitable Trust and others Vs. All India Counsel for Technical Education and others (2013) 3 SC 385", the Hon'ble Supreme Court while considering the question of the importance of timeline in the matter of admission to W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 20 :
technical courses had modified the schedule fixed by the AICTE wherein the commencement of classes was fixed as 1st of August of every year and the closure of admission was prescribed as 30 of August of each year. The above proposal of the AlCTE was modified by the Apex Court by substituting the date of closure of admission as 15th of August of every year instead of 30th of August, as prescribed by the AICTE specifically observing that the loss of classes is detrimental to the interest of the students and therefore there is no need to give a period of 30 days after the classes had commenced to close the admission date.
4. It is submitted that in paragraph 40 of the judgment of the Apex court in "Parshvanath" case, the court had expressed the views regarding the reason for streamlining the admissions as to see that the admissions are not prolonged such that students misses class which had already commenced. The observations of the Apex court in this in paragraph 40 of the judgment in "Parshvanath" case is as follows:
"We are unable to appreciate that once the academic session begins on 1st August, then as to why should admission be granted up to 30th August of the year, particularly when, as per the terms of the schedule, beyond or after 30 th April, AICTE will not issue any approval for commencement of new course for additional intakes. The schedule, thus, introduces an element of arbitraries and may cause prejudice to the students who might miss their classes for a period of one month without any justification."
It is submitted that during this academic year, the classes for B.Pharm Courses started on 05.08.2019 and any admission if permitted after almost 75 days since the classes had started, it W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 21 :
would result in serious prejudice to the students and affect the standard of education and it is also inconsistent with the judgment of the Apex Court.
5(4) It is submitted that in paragraph 43 of the judgment of the Apex Court in "Parshvanath", the Apex court declared the schedule framed to be the law on the subject. Paragraph 43 of the judgment of the Apex court in "Parshvanath' reads as follows:
"43. We find that the above Schedule is in conformity with the affiliation/recognition schedule afore-noticed. They both can co- exist. Thus, we approve these admission dates and declare it to be the law which shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. Certainty in this field is bound to serve the ends of fair, transparent and judicious method of grant of admission and commencement of the technical courses. Any variation is bound to adversely affect the maintenance of higher standards of education and systematic and proper completion of courses."
6. So also in paragraphs 46.1 and 46.2 the court specifically observed that no authority shall have jurisdiction to modify the Schedule. Paragraph 46.1 and 46.2 of "Parshvanath" is reproduced hereunder:-
46.1 Both grant/refusal of approval and admission schedule, as aforestated, shall be strictly adhered to by all the authorities W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 22 :
concerned including AICTE, the University, the State Government and any other authority directly or indirectly connected with the grant of approval and admission.
46.2 No person or authority shall have the power or jurisdiction to vary the schedule prescribed hereinabove."
7. The Apex court having declared the schedule for admission procedure to be the law applicable on the subject, it is the law of the land and no courts have jurisdiction to interfere with the same. Therefore since the law is declared by the Apex court under Article 141 of the Constitution of India, no further modification on the matter is permissible.
8. The Single judge judgment as confirmed by the Division Bench referred to by the appellants wherein the word "authority" used in paragraph 46.1 and 46.2 of the judgment was interpreted to not take within its ambit writ courts and its jurisdiction exercised under Article 226 of the Constitution of India does not appear to be correct law as the said observation is made without adverting time line for admission being declared as the law by the Apex court in paragraph 43 of the judgment as quoted above. Therefore the judgment in "Parshvanath" case is binding on this court being the law declared by the Apex court under Article 141 of the Constitution of India and this court is not expected to interpret judgment of the Apex court and modify the same which can be done by Apex Court alone.
9. As far as the case in hand is concerned it is relates to admission W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 23 :
for B.Pharm course for the academic year 2019-20. The admission to technical courses including B Pharm course in the State of Kerala is conducted by a Centralized Admission Process (CAP) under the Commissioner for Entrance Examination. A candidate to seek admission to B Pharm Courses besides satisfying the academic qualifications prescribed in the prospectus has to qualify the Entrance Examination by securing a minimum of 10 marks out of the total score of 480 marks in the Entrance Examination to figure his name in the rank list prepared by the Commissioner for Entrance Examination to seek admission to B Pharm course. The prospectus for the academic year 2019 is the last word as far as the admission procedures are concerned. Clause 11.6.8 (iii) of the prospectus governs the allotment/admission proceedings for B-Tech and B Pharm courses. Clause 11.6.8 (iii) of the prospectus reads as follows:
11.6.8(iii) "Allotment/Admission to Engineering Courses will not be made after 15th August of every year vide judgment of the Honourable Supreme Court of India dated 13.12.2012 in the Civil Appeal No.9047 and 9048 of 2012. Similarly no allotment to the B.Pharm courses for 2019-20 will be made after 15.08.2019, as per the guidelines of AICTE"
10.Under Clause 9.7.10 (vi) of the prospectus the validity of the rank list prepared by the Commissioner for Entrance Examination expired on 15.8.2019. It is submitted that the prescription in clauses 11.6.8
(iii) and 9.7.10 (vi) of the prospectus are in conformity with the schedule fixed by the Apex Court in "Parshvanath" case. It is submitted that in the light of the recent floods in the State of Kerala during August, 2019, the State approached the Apex Court in W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 24 :
M.A.Nos.1716 and 1717 of 2019 in C.A.No.9048/2012 (Parshvanath case) seeking permission for extension of time to complete the admission process for technical courses including B Pharm courses upto 15.9.2019. In order dated 26.08.2019, the Apex court declined the application of the State for extension up to 15.9.2019 and a limited extension up to 31.8.2019 alone was granted. Further while restricting the time limit sought for by the State the court in the order dated 26.8.2019 observed as follows:
"The process shall be completed within next 3 days and mop up and round, if any be conducted within two days thereafter but in no case the deadline of 31.8.2019 shall be overstepped or breached".
11. Therefore the relief sought for by the appellant is a matter which is already seized by the Apex court and an order has been passed interdicting the authorities concerned from overstepping the deadline extended as 31.08.2019. Therefore, the Apex court having specifically considered the issue in hand and had restricted the authorities breaching the deadline of 31.08.2019, it would only be appropriate for the appellants to approach the Apex court if they have any valid reason to seek modification of the order already passed.
12. The further contention of the appellants that the Division Bench of this Hon'ble Court subsequent to the interim order of the Apex court in M.A. Nos. 1716 and 1717 of 2019 in C.A.No. 9048 of 2012 had extended the time limit for completing the admission process up to 15.09.2019 is admittedly an order without referring to the order of the Apex court dated 26.08.2019. Therefore the order dated 27.08.2019 of the Division W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 25 :
Bench of this Hon'ble Court in I.A.No.1/2019 in W.A.No.1693/2019 can only be treated as "per incuriam" and the said order does not bind as a judicial precedent as rightly observed by the learned Single Judge.
13. The further case of the appellants that the judgment in the "Parshvanath" case was rendered by the Apex court relying on the 1994 regulations of the AICTE which had by now been amended and therefore the ratio in "Parshvanath" case does not appIy in the light of the subsequent regulations does not appear to be the correct legal position. It is submitted that there is no dispute that in order dated 26.08.2019 which was after the said amendment to the AICTE regulation that the Apex Court considered the application of various states including the State of Kerala for modifications in the timeline fixed in the "Parshvanath" Case and appropriate orders passed by the Apex Court. Therefore the case of the appellants that "Parshvanath" case does not apply subsequent to the amendment to the regulations of the AlCTE does not hold good as the Apex court had considered the issue even subsequent to the amendment of the regulations and that too in a case in which AlCTE is the contesting respondent. Therefore it cannot be presumed for a moment that the Apex court had passed the order dated 26.08.2019 without taking note of the amendment to the regulations of the AlCTE. It is submitted that it is always open for the appellants to raise all their contentions before the Apex court which is the only court having jurisdiction on the matter to consider modification of the schedule for admission which is declared to be the law applicable on the subject. In the light of the above discussions, it is clear that the only court which have W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 26 :
jurisdiction in the matter of modifying the time schedule fixed for admission is the Apex court and therefore the present application seeking interference in the judgment of the learned Single Judge is unsustainable and the judicial precedence requires this court to dismiss the writ appeals."
14. Learned Standing Counsel for the University mainly relied on paragraphs 37 to 41 of the judgment in Parshvanath Charitable Trust v. All India Council for Technical Education reported in (2013) 3 SCC 385 and contended that almost three months is over and any admission granted at this stage would affect the education of the students and contrary to the deadline granted by the Honourable Supreme Court.
Paragraphs 37 to 41 of the above mentioned judgment relied on by the learned counsel for the University reads thus:
"37. Apparently, there seems to be some variations in the Schedule issued under Regulation 8(15), as aforenoticed, and the dates reflected in the Handbook. Another Schedule has been printed as per the website of the AICTE according to which the letter of approval for starting new technical institutions could be issued by 10th October, if application was submitted between January to June of the relevant year and 10th April, if the application was submitted between July to December of that year. Rejection of approval is an order which is appealable to the W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 27 :
Appellate Committee of the AICTE. If the applicant wishes to file an appeal against the order, he is expected to file the appeal and, in any case, after directions of the Appellate Committee are complied with, the order of approval after the reconsideration/appeal has to be issued by 15th November in the first case and 15th May in the other. If one reads these two schedules collectively, it is clear that the letter of approval should be issued by 15th April or by 30th April at the maximum. It is only the Appellate Committee's order which can be issued by 15th May. If such order grants recognition, then it must specify the academic year for which it is being granted. If it falls foul of the admission schedule, then it ought not to be granted for the current academic year. It has been brought to our notice that the last date for admission to the courses and the date on which the courses should begin is 30th August of the academic year. In that event, admissions to such courses, if permitted by the appellate authority, could be made strictly in accordance with the academic Schedule and without violating the same in any manner whatsoever. This brings us to the admission schedule which again should be strictly obeyed by all concerned.
38. We must notice that admission schedule should be declared once and for all rather than making it a yearly declaration. Consistency and smoothness in admission process would demand and require that there is a fixed and unaltered time schedule provided for admission to the colleges so that the students know with certainty and well in advance the admission W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 28 :
schedule that is to be followed and on the basis of which they are to have their choice of college or course exercised.
39. The Schedule for admission for the coming academic year, i.e., 2013-2014 has been submitted to the Court after the matter was reserved for judgment. The said Schedule reads as under :
PARSHVANATH CHARITABLE TRUST V. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (SWATANTER KUMAR, J.) Event Schedule Conduct of Entrance In the month of May Examination (AIEEE/State CET/ Management quota exams etc.) Declaration of result of On or before 5th June qualifying examination (12th Exam or similar) and entrance examination 1st round of To be completed on or counselling/admission for before 30th June allotment of seats 2nd round of counselling for To be completed on or allotment of seats before 10th July Last round of counselling for To be completed on or allotment of seats before 20th July Last date for admitting 30th July. However, any candidates in seats other than number of rounds for allotted above counselling could be conducted depending on local requirements, but all the rounds shall be completed before 30th July W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 29 :
Commencement of academic 1st August
session
Last date up to which 30th August
students can be admitted
against vacancies arising due
to any reason (no student
should be admitted in any
institution after the last date
under any quota)
Last date of granting or 30th April
refusing approval by AICTE
Last date of granting or 31st May
refusing approval by
University/State Govt.
40. The above Schedule though was finalized by the Committee on 29th January, 2012 but the same appears to have been notified only on 30th September, 2012. The reasons for the same are again unknown. We are unable to appreciate that once the academic session begins on 1st August, then as to why should admission be granted upto 30th August of the year, particularly when, as per the terms of the Schedule, beyond or after 30th April, AICTE will not issue any approval for commencement of new course for additional intakes. The Schedule, thus, introduces an element of arbitrariness and may cause prejudice to the students who might miss their classes for a period of one month without any justification. Thus, it is required that the above-stated Schedule be modified to bring it in line with the Schedule for approval as well as to prevent inequalities, arbitrariness and prejudice from affecting the students in relation to their academic courses. The order W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 30 :
granting or refusing approval, thus, should positively be passed by 10th April of the relevant year. The appeal should be filed within one week and the Appellate Committee should hear the appeal and decide the same by 30th April of the relevant year. The University should grant/decline approval/affiliation by 15th May of the relevant year. Advertisement should be issued and entrance examination conducted positively by the end of the month of May.
41. The appropriate Schedule, thus, would be as follows :
Event Schedule
Conduct of Entrance In the month of May
Examination (AIEEE/State
CET/ Management quota
exams etc.)
Declaration of result of On or before 5th June
qualifying examination (12th
Exam or similar) and entrance
examination
1st round of To be completed on or
counselling/admission for before 30th June
allotment of seats
2nd round counselling for To be completed on or
allotment of seats before 10th July
Last round of counselling for To be completed on or
allotment of seats before 20th July
W.A.No.2084, 2085, 2086, 2087 of 2019 &
W.P.(C)No.22541 of 2019
: 31 :
Last date for admitting 30th July. However, any
candidates in seats other number of rounds for
than allotted above. counselling could be
conducted depending on
local requirements, but all
the rounds shall be
completed before |30th
July
Commencement of 1st August
academic session
Last date up to which 15th August
students can be admitted
against vacancies arising due
to any reason (no student
should be admitted in any
institution after the last date
under any quota)
Last date of granting or 10th April
refusing approval by AICTE
Last date of granting or 15th May
refusing approval by
University/State Govt.
15. By way of reply, learned senior counsel appearing for the
institution and submitted that when the Government have sought for extension of time, colleges can also seek for extension of time due to the delay caused in granting affiliation. Depending upon the fact situation, which has been considered and ordered by the Honourable Supreme Court in the interim applications filed by various Governments and the W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 32 :
institutions and also by this court in W.A.No.1693/2019 dated 27.8.2019, it is not the case of the students, that they were put to any inconvenience.
According to the institutions, the balance of convenience is in their favour.
16. We have heard Sri.George Poonthottam, learned senior counsel for the writ petitioners in W.P.(C)No.22541 of 2019. Also heard Sri.Kurian George Kannanthanam, learned senior counsel appearing for the appellants in W.A.No.2084 of 2019. Learned Government Pleader appearing for the State of Kerala and the P.Sreekumar, learned counsel for the Kerala University of Health Sciences and perused the material on record.
17. As per the extant provisions, the subject "pharmacy" falls within the definition 2(g) of the AICTE Act. Section 2(h) defines the Technical Education. Above sections are extracted as under:
2(g) "technical education" means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare; W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 33 :
2(h) "technical institution" means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;
18. The time limit initially granted by AICTE for admission of Technical Education, as per the 1994 Regulation is extracted below:
"35. It is the requirement of law that there should be strict adherence to the time schedule for grant of approval as well as for admissions without exception. In exercise of the powers vested in the AICTE, under sub- section (1) of Section 23 of the AICTE Act, it had made regulations namely the All India Council for Technical Education (Grant of Approvals for Staffing New Technical Institution, Introduction of Course and Programmes and Approval of Intake Capacity) Regulations, 1994. Schedule to these regulations reads as under:-
Sl. Stage of processing application Last date by which No. the processing should be completed 1 2 3 1 For receiving proposals by Bureau 31st December RC W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 34 :
2 For Bureau RC to screen the application and (a) to return the incomplete applications to the applicants, and (b) to forward the applications to (i) State Government concerned (ii) University or State Board concerned, for their comments
(iii) Regional Officer to arrange visits by Expert Committees, and
(iv) Bureaus MPCD, BOS and RA for their comments.
3 For receiving the comments from 15th March
(i) the State Government (ii) the University or State Board and (iii) the Regional Committee based on the Expert Committee's report, and
(iv) from the Bureaus MPCD, BOS and RA.
4 For consideration of the comments 31st March from the State Governments, Universities or State Boards, Regional Committees, and Bureaus of the Council by the State level Committee 5 For recommendations to be made 15th April by the Central Task Force 6 For communicating the final 30th April decision to the State Government or the University Grants Commission, under intimation to the Regional office, Director of Technical Education, applicant, University or State Board W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 35 :
19. Subsequently schedule has been modified as hereunder:
" 41. The appropriate Schedule, thus, would be as follows :
Event Schedule
Conduct of Entrance In the month of May
Examination (AIEEE/State
CET/ Management quota
exams etc.)
Declaration of result of On or before 5th June
qualifying examination (12th
Exam or similar) and entrance
examination
1st round of To be completed on or
counselling/admission for before 30th June
allotment of seats
2nd round counselling for To be completed on or
allotment of seats before 10th July
Last round of counselling for To be completed on or
allotment of seats before 20th July
Last date for admitting 30th July. However, any
candidates in seats other number of rounds for
than allotted above. counselling could be
conducted depending on
local requirements, but all
the rounds shall be
completed before |30th
July
Commencement of 1st August
academic session
W.A.No.2084, 2085, 2086, 2087 of 2019 &
W.P.(C)No.22541 of 2019
: 36 :
Last date up to which 15th August
students can be admitted
against vacancies arising due
to any reason (no student
should be admitted in any
institution after the last date
under any quota)
Last date of granting or 10th April
refusing approval by AICTE
Last date of granting or 15th May
refusing approval by
University/State Govt.
20. Streamlining the processes of admission of students to the educational institutions is certainly a matter to be borne in mind. But, the contention of the appellants that the University has been delaying the grant of affiliation so as to enable the institutions to admit the students is another factor to be considered. In the W.A. Nos.2086/19 and 2085/19 affiliation has been granted on 4.9.2019 and 6.9.2019 respectively.
Further contention of the appellants in W.A. Nos.2087/19 and 2084/19 is that all the defects were rectified and that the University is prepared to grant affiliation, on condition that admission can be made only in the next year. It could be seen from the material on record that the contention of the University that they are bound to invite applications for affiliation only W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 37 :
in accordance with the perspective plan as per Section 51(1) and (2) of the Kerala University Health Sciences Act, 2010, has been rejected by a Hon'ble Division Bench only on 9.7.2019 in W.A. No.1483 of 2019 and connected case. Perusal of the judgment in W.A. No.1483 of 2019 dated 9.7.2019 shows that though Government of Kerala have objected to the prayer to consider the application for affiliation, and if issued, the same would be contrary to the decision of the Hon'ble Supreme Court in Parshwanath Charitable Trust v. All India Council for Technical Education reported in (2013) 3 SCC 385 , rejecting the said contention, a Hon'ble Division Bench of this Court has categorically held that the time schedule prescribed in the Parshwanath's case (supra) does not strictly apply to the grant or refusal of affiliation by the affiliating body, namely the Kerala University of Health Sciences/Directorate of Technical Education, more so, when it was the inaction of the affiliating body that led to the delayed consideration. Thus there is a clear finding of this Court with respect to the delay on the part of the affiliating bodies.
S.L.P(C) No.17411/2019 filed against the final judgment in W.A. No.1485 of 2019 dated 9.7.2019, has been dismissed by the Hon'ble Supreme Court. While doing so, the Hon'ble Supreme Court has extended the time W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 38 :
given by the Hon'ble Division Bench of this Court in W.A. No.1485 of 2019.
21. The Government have issued a notification fixing the cut off date for admission for B.Pharm courses as 15.8.2019. Again by considering the fact situation pleaded by various States and institutions, time has been extended as extracted supra, by the Hon'ble Supreme Court.
22. Though the learned Government Pleader and the learned counsel for the respondent University have contended that if any direction is granted by this Court, on the prayers sought for in W.A.Nos.2084, 2085, 2086, 2087 of 2019 and W.P(C) No.22541 of 2019, it would run contrary to the judgment of the Hon'ble Supreme Court, we are of the view that such contention has already been considered by a Hon'ble Division Bench of this Court in W.A. No.1483 of 2019 and batch of appeals and the Hon'ble Supreme Court has also affirmed the same.
23. As stated supra in paragraph 11 in the foregoing judgment, it is discernible from the order dated 27.8.2019 made in I.A. Nos.1 of 2019 in W.A.No.1686 of 2019, I.A. Nos.1 of 2019 in W.A.No.1693 of 2019 and I.A. Nos.1 of 2019 in W.A.No.1715 of 2019 that a Hon'ble Division Bench of this Court, has taken note of the holidays, between 8.9.2019 and W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 39 :
15.9.2019, being Government holidays. On the facts on hand, before us in the present W.A.Nos.2084, 2085, 2086, 2087 of 2019, a similar plea has been made. Earlier, a Hon'ble Division Bench has also taken note of the fact that consequent to the possibility of the seats falling vacant in pharmacy colleges, consequent to the students exercising their option to migrate to the MBBS/BDS course.
24. Circular dated 30.10.2018 of the University makes it clear that though in the instant writ appeals, Government of Kerala and Kerala University of Health Sciences have taken a stand that directions, if any, to be granted for extending the time for admission would run contrary to the judgment of the Hon'ble Supreme Court in Parshwanath's case (supra), knowing fully well that subject "Pharmacy", as per Section 2(g) of the AICTE Act, 1987 has been included in the definition technical education, Kerala University of Health Sciences has fixed the time limit for admission as 31.10.2018. The flow of circulars issued by Kerala University of Health Sciences read thus:
"KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR - 680 596 www.kuhs.ac.in ..................................................................................................
W.A.No.2084, 2085, 2086, 2087 of 2019 &
W.P.(C)No.22541 of 2019
: 40 :
No.2019/8443/ACI/Gen/B2/KUHS 02/08/2019
CIRCULAR
The Principals of all PHARMACY Colleges affiliated to KUHS conducting UG course B Pharm are hereby informed that the cut off date of admissions of these courses is fixed as 15/08/2019. The online facility for temporarily registering the details of admitted students will be available in the website only till the mid night of 15/09/2019. The Colleges who fails to perform online entry of basic details due to any technical reasons can submit the basic details of the admitted students in the office of the university till 5 P.M. on 16/08/2019.
The registration of those students whose details are not entered with in the prescribed time limit will not be enteretained by the University under any circumstance."
"KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR - 680 596 www.kuhs.ac.in .................................................................................................. No.2019/8443/ACI/Gen/B2/KUHS 05/09/2019 CIRCULAR The Principals of all PHARMACY Colleges affiliated to KUHS conducting UG course B Pharm are hereby informed that the cut off date of admissions of these courses is fixed as 15/09/2019. The online facility for temporarily registering the details of admitted students will be available in the website only till the mid night of 15/09/2019. The Colleges who fails to perform online entry of basic details due to any technical reasons can submit the basic W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 41 :
details of the admitted students in the office of the university till 5 P.M. on 16/09/2019.
The registration of those students whose details are not entered with in the prescribed time limit will not be entertained by the University under any circumstances."
25. From the above facts narrated, it could be seen that earlier for the academic year 2018-19, though time limit has been enlarged by this Court upto 30.09.2018, the University has extended the same upto 30.10.2018 for admission to U.G. courses (B.Pharm), though contended that extension was on the orders of this court.
26. When Government of Kerala and University of Health Sciences have submitted that the extension of time would run contrary to the time line fixed by the Hon'ble supreme Court in Parshwanath's case (supra), contending that no authority can extend the time and the directions issued by the Honourable Apex Court is a binding law, and that the institutions have to approach only the Hon'ble Supreme Court, we are not in agreement with the said contentions for the reason that the University, while issuing the circular was also aware of the time line fixed by the Hon'ble Supreme Court. Further, when Kerala University of Health W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 42 :
Sciences has fixed the time limit upto 30.10.2018, the University was also aware of the fact that the students would not be put to any inconvenience.
Therefore, contentions to the contra made in the instant writ appeals cannot be countenanced.
27. Contentions of the learned Government Pleader and the learned Standing Counsel for the Kerala University of Health Sciences that the order in I.A. No.1 of 2019 in W.A. No.1693 of 2019 can only be treated as per in curium, for the reason that no reference has been made to the judgment of the Hon'ble Supreme Court, cannot be accepted for the reason that when reference was made to Parshwanath's case and orders were passed in W.A.No.1485/19 and batch of cases, rejecting the objection by this court based on Parshwanath's case, the same affirmed by the Hon'ble Supreme Court in S.L.P(C) No.17411/2019. More so, it is the contention of the learned Senior Counsel for the appellants that while passing the order in I.A. No.1 of 2019 in W.A. No.1693 of 2019, copy of the judgment in Parshwanath's case (supra) has been handed over by the learned Government Pleader to the Court. Be that as it may, University having extended the time limit upto 31.10.2018, for the academic year 2018-19, cannot now contend the students would be affected. W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 43 :
28. Reading of the judgment in Parshwanath's case (supra) makes it clear that the Apex Court, while fixing the time line for engaging admissions, has declared that no person or authority shall vary the time schedule. As rightly contended, this Court exercising equitable jurisdiction under Article 226 of the Constitution of India, cannot be circumscribed to the word "Authority". Depending upon the fact situation, the Hon'ble Supreme Court as well as this Court have extended the time limit. Delay in the process of affiliation has also been recorded by a Hon'ble Division Bench of this Court.
29. On the aspect as to whether the directions issued to a person or authority would include Court exercising jurisdiction under Article 226 of the Constitution of India, it is useful to refer to a decision of this Court in W.P(C) No.13969 of 2015 dated 11.6.2015, wherein a learned Single Judge, after considering the submission of the parties therein, at paragraphs 15 to 17 held thus:
"15. This Court is inclined to accept the contention of the learned counsel for the petitioner that the Hon'ble Supreme Court has cautiously and carefully refrained from prohibiting such interventions by the Courts. The persons or authority referred to in the afore-cited directions does not take within its ambit the W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 44 :
High Courts which exercise jurisdiction under Article 226. The direction at item No.(6) above also would indicate that it is to keep the AICTE and the authorities, exercising jurisdiction with respect to grant of approval of institutions and to keep them within the bounds of the schedule that such direction has been issued; so as to avoid any allegation of caprice or nepotism by such authorities. This Court, in taking such a view, is fortified on a reading of the judgment as a whole. After indicating the appropriate schedule, it was held so in paragraph 43:
"43. We find that the above Schedule is in conformity with the affiliation / recognition schedule afore-noticed. They both can co-exist.
Thus, we approve these admission dates and declare it to be the law which shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. Certainty in this field is bound to serve the ends of fair, transparent and judicious method of grant of admission and commencement of the technical courses. Any variation is bound to adversely affect the maintenance of higher standards of education and systemic and proper completion of courses".
16. Hence, a scrupulous compliance of the schedule was held to be intended at serving the ends of a fair, transparent and judicious method of grant of admission and commencement of the technical course. It is such lack of judicious consideration W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 45 :
that is projected by the petitioner before this Court in the matter of grant of approvals. Relevant also would be paragraph 36, which is extracted hereunder:
"36. Non-adherence of this Schedule can result in serious consequences and can jeopardize not only the interest of the college students but also the maintenance of proper standards of technical education. The authorities concerned, particularly the AICTE, should ensure proper and timely action upon the applications submitted to it. It must respond to the applicant within a reasonable time period and should not let the matter drag till the final date giving rise to avoidable speculations by all stakeholders. Thus, it would be appropriate for these authorities to bring to the knowledge of the parties concerned, the deficiencies, if any, and the defects pointed out by the Expert Committee during the inspection within three weeks from the date of such inspection or pointing out of defects, as the case may be. For better administration, the AICTE should also state the time within which such deficiencies / defects should be removed by the applicant. This will help in building of a coherent and disciplined method of working to ensure the proper implementation of the entire formulated scheme of technical education. The AICTE will not have any jurisdiction or authority to issue approval W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 46 :
for commencement of a new course or for additional intake of students beyond 30th April of the year immediately preceding the commencement of an academic year".
This further fortifies the view taken by this Court that the authorities as indicated by the Hon'ble Supreme Court in the directions issued, did not take in the Constitutional Courts and the impediment is solely on the AICTE and its authorities who have absolutely no jurisdiction or authority to deviate from the schedule prescribed.
17. What is essentially sought to be avoided by the Hon'ble Supreme Court is the method of 'pick and choose' by the authorities at their whim and caprice so as to avoid altogether; approvals and rejections beyond the last date specified in the schedule. This could be, by considering applications filed beyond time, giving certain applicants more time to cure the defects in excess of that prescribed under the schedule, while denying it to some others and even with approvals granted in the midst of an academic year; all of which would do violence to a judicious consideration of the applications for approvals and put in jeopardy the high standards required in the matter of education."
30. Neither Government of Kerala nor the Kerala University of Health Sciences has placed any material to show that the decision of the learned Single Judge has been taken on appeal. In the absence of any W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 47 :
reversal of the said judgment, it is binding on the parties.
31. Though in the common order, impugned before us, while observing that the deadline fixed by the Hon'ble Apex Court dated 26.8.2019, shall not be overstepped or breached in any circumstances, as recorded in the foregoing paragraphs, courts have intervened, depending upon the fact situation. Learned Single Judge has further directed that in cases where the University has not given affiliation, the University shall give affiliation to such colleges, if defects are cured, but with a consideration to permit them to admit students from the next academic year.
32. In the light of the above directions, earlier orders and circulars issued by the University, we are inclined to interfere with the common judgment made in W.P(C) No.19393, 22272, 22372, 22400 and 24162 of 2019 dated 27th September, 2019 and order as hereunder:
University shall grant affiliation to the institutions, which have cured the defects, within one week from today. For the affiliated institutions and institutions directed to be affiliated, time limit for admissions to B.Pharm/M.Pharm courses be extended by ten days from today. W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 48 :
In as much as the time limit is directed to be extended by ten days from today, there is no need to grant prayer made in W.P(C) No.22541 of 2019. Accordingly, W.A. Nos.2084, 2085, 2086, 2087 of 2019 and W.P(C) No.22541 of 2019 are disposed of.
The question as to whether the institutions require essentiality certificate which is challenged in W.P.(C)No.22372/19, 22400/19 and 22272/19 is left open.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
C.K.ABDUL REHIM JUDGE Krj W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 49 :APPENDIX OF WA 2084/2019
PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF THE SCHEDULE WHICH SHOWS THE DATES AND EVENTS AND THE DELAY OCCURRED FROM THE PART OF THE 2ND RESPONDENT IN THE CASE OF AFFILIATION OF PETITIONER COLLEGE. W.A.No.2084, 2085, 2086, 2087 of 2019 & W.P.(C)No.22541 of 2019 : 50 :
APPENDIX OF WP(C) 22541/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LIST OF MEMBER COLLEGES OF THE IST PETITIONER ASSOCIATION.
EXHIBIT P2 TRUE COPY OF THE CIRCULAR NO.2019/8443/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 5.8.2019.
EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO.2019/8443/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 5.8.2019.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.2019/8443/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 5.8.2019 EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO.2019/8443/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 5.8.2019 EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.20185866/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 24.7.2018.
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER IN I.A. NO.1/2018 IN WPC NO.27530/2018 DATED 16.10.2018 PASSED BY THIS HON'BLE COURT.
EXHIBIT P7 A TRUE COPY OF THE INTERIM ORDER IN WPC NO.28489/2018 DATED 29.8.2018 PASSED BY THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.2018/5866/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 30.10.2018.
EXHIBIT P8 A TRUE COPY OF THE CIRCULAR NO.2018/5866/ACI/GEN/B2/KUHS ISSUED BY THE RESPONDENT UNIVERSITY DATED 30.10.2018.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE IST PETITIONER ASSOCIATION DATED 7.8.2019.
EXHIBIT P10 TRUE COPY OF THE RELEVANT PORTIONS OF THE PROSEPECTUS ISSUED BY THE STATE OF TAMILNADU.
EXHIBIT P11 TRUE COPY OF THE TENTATIVE COUNSELING SCHEDULE FOR THE PARAMEDICAL COURSES ISSUED BY THE DIRECTORATE OF MEDICAL EDUCATION, CHENNAI.
EXHIBIT P12 TRUE COPY OF THE DETAILS OF THE VACANCIES WITH REFERENCE TO THE COLLEGES.