Kerala High Court
Ilahia Trust vs A.P.J Abdul Kalam Technological ... on 11 September, 2020
Equivalent citations: AIRONLINE 2020 KER 609
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA,
1942
WP(C).No.18563 OF 2020(U)
PETITIONER/S:
ILAHIA TRUST
REPRESENTED BY ITS GENERAL SECRETARY MARKET P
O, MUVATTUPUZHA - 686673.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.P.M.SANEER
SRI.TONY GEORGE KANNANTHANAM
RESPONDENT/S:
1 A.P.J ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR, CET CAMPUS,
TRIVANDRUM - 685016.
2 THE VICE CHANCELLOR
A.P.J. ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
CET CAMPUS, TRIVANDRUM - 685016.
OTHER PRESENT:
SRI ELVIN PETER -STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
W.P.(C). No. 18563 of 2020
JUDGMENT
The petitioner had established a self financing engineering college, namely, Ilahia College of Engineering and Technology at Muvattupuzha in Ernakulam, which is conducting B.Tech course in various disciplines after obtaining approval from the All India Council for Technical Education (AICTE) and affiliation from the 1st respondent APJ Abdul Kalam Technological University. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent, who is the Vice Chancellor of the 1st respondent University, to consider its application for affiliation of a new course "B.Tech - Artificial Intelligence and Data Science" and grant affiliation for the same before 15.09.2020. The petitioner has also sought for a declaration that it is entitled for affiliation of the new course "B.Tech - Artificial Intelligence and Data Sciences"
and to admit students for that course in the academic year 2020-21 itself.
2. The document placed on record as Ext.P4 is the -3- W.P.(C). No. 18563 of 2020 approval granted by the AICTE for the year 2020-21 for "B.Tech - Artificial Intelligence and Data Sciences", with annual intake of 60, for the academic year 2020-21.
3. On 09.09.2020, when this writ petition came up for admission, the learned Standing Counsel for the University sought time to get instructions.
4. During the course of arguments, it is pointed out by the learned counsel on both sides that the issue raised in this writ petition is covered in favour of the writ petitioner by the judgment of a Division Bench of this Court in Jai Bharath College of Management and Engineering Technology v. State of Kerala and others [Judgment dated 08.09.2020 in W.A.No.1073 of 2020 and connected cases]. Paragraphs 33 to 35 and also the last paragraph of the said decision read thus;
"33. We have evaluated the rival submissions and have gone through the written submissions made by the respective counsel, and we are of the considered opinion that in the light of the AICTE Act, 1987, Regulations 2020, and the Approval Process Hand Book, the AICTE was entitled to take a decision in the matter of grant of -4- W.P.(C). No. 18563 of 2020 approval, since it is vested with ample powers under law to do so. We also will have to legally presume that during the process undertaken by it, the AICTE has adhered to the mandatory exercises as per the provisions of law, especially due to the fact that it is not specifically mentioned and established by the University or the State as to the mandatory procedural failure on the part of the AICTE in carrying out its obligations and duties before grant of the approval. Moreover, the AICTE Act, 1987, the Regulations for the Grant of Approval for Technical Institutions, Regulations, 2020 and the Approval Process Hand Book constituted in accordance with the powers conferred under the Regulations are, in all respects, a code by itself for conduct of its to undertake its activities, and they are also superior to the laws of the University in question as is held by the Apex Court in the judgements discussed supra. The documents produced along with the writ petitions and the appeals would prove that the AICTE has conducted inspection and drawn reports also and therefore, cannot be said that the AICTE has not adhered to the procedure prescribed for approval of the additional courses. Moreover, Articles 245 and 246 of the Constitution of India, in unequivocal terms, specify that when there is a conflict by and between any legislation of the Union and the State, the laws made by the Union in its absolute domain would be superior in all respects and the State has no power to interfere with the jurisdiction so -5- W.P.(C). No. 18563 of 2020 exercised by the Union. For convenience, Articles 245 and 246 of the Constitution of India are extracted hereunder:
"245. Extent of laws made by Parliament and by the Legislatures of States (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
246. Subject matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as -6- W.P.(C). No. 18563 of 2020 the Concurrent List) (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List") (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List."
Admittedly, the subject issue is the domain of the Union Government due to the fact that higher education is included in entry 66 of list I of Schedule VII, dealing with co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
34. Above all, taking into all those aspects, we find that the University is not entitled to challenge the approval granted by the AICTE to the appellant institutions collaterally in the writ petitions filed by the aggrieved institutions on account of non-consideration of the applications submitted by the institutions for addition of courses in their institutions in accordance with the requirements put forth by the AICTE as per its -7- W.P.(C). No. 18563 of 2020 Regulations and Approval Process Hand Book.
35. Judging so, we are of the opinion that the University and the State did not have any power to incorporate the conditions in the orders in question, and the Syndicate to take the decisions discussed above for consideration of the applications pending before the University seeking affiliation for additional courses. Therefore, we are inclined to interfere with the judgement of the learned single Judge to that extent. Accordingly, we partly set aside the judgement of the learned single Judge in the writ petitions specified above, and direct the Vice Chancellor of the University to consider the applications submitted by the appellants dehors the order of the University dated 10.06.2020 and the decision of the Syndicate dated 24.06.2020 at the earliest, taking into account the fact that the AICTE has extended the last date for the affiliation to 15.09.2020 and we are also informed that though Miscellaneous Application No. 1693/2019 in C.A. No. 9048/2012 was filed before the Apex Court seeking extension of time for grant of affiliation, it was disposed of by the Apex Court as per order dated 21.08.2020 finding that the AICTE has issued a fresh calender. Since all the appeals and the issues raised are similar in nature, if not typical, all writ appeals would stand allowed accordingly. The order of the learned single Judge, setting aside the order of the state Government and consequential directions issued to the -8- W.P.(C). No. 18563 of 2020 University would remain intact, especially due to the fact that neither the State nor the University have preferred appeals against the orders and directions so issued by the learned single Judge.
Be that as it may, when the appeals came up for admission, we have noticed that most of the appellants were granted with interim orders for provisional affiliation by the learned single Judge during the pendency of the writ petitions, and thereupon, we have granted interim orders, in such appeals, directing the University that the provisional affiliation granted by the University to the colleges pursuant the interim orders of the learned single Judge shall continue to be in force, as per an order dated 14.08.2020 and by typical subsequent orders. The said orders would continue to be in force for all practical, admission and academic purposes till a decision is taken by the University as directed above."
5. The learned Standing Counsel for the University would submit that the 2nd respondent Vice Chancellor shall consider the request made by the petitioner in Ext.P5, insofar as affiliation for the new course in "B.Tech - Artificial Intelligence and Data Sciences" for the academic year 2020- 21 is concerned, before 15.09.2020, taking note of the law laid down by the Division Bench in Jai Bharath College of -9- W.P.(C). No. 18563 of 2020 Management and Engineering Technology v. State of Kerala and others, in exercise of his powers under sub- section (6) of Section 14 of APJ Abdul Kalam Technological University Act, 2015.
In such circumstances, this writ petition is disposed of by directing the 2nd respondent Vice-Chancellor to take an appropriate decision on Ext.P5 application made by the petitioner, insofar as affiliation for the new course in "B.Tech - Artificial Intelligence and Data Sciences" for the academic year 2020-21 is concerned, in exercise of his powers under sub-section (6) of Section 14 of APJ Abdul Kalam Technological University Act, 2015, taking note of the law laid down by the Division Bench in the decision referred to supra, as expeditiously as possible, at any rate on or before 15.09.2020.
Sd/-
ANIL K.NARENDRAN JUDGE Das -10- W.P.(C). No. 18563 of 2020 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 04.03.2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE E.MAIL DATED 06.03.2020 THE DETAILS IN THE PRESCRIBED FORMAT.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 09.03.2020 TO THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
15.06.2020 ISSUED BY THE ALL INDIA
COUNCIL FOR TECHNICAL EDUCATION.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
17.06.2020 TO THE 1ST RESPONDENT.
EXHIBIT P6 COPY OF THE SCREEN SHOT SHOWING THE
STATUS OF THE APPLICATIONS FOR
AFFILIATION.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED
14.08.2020 ISSUED BY THE 1ST
RESPONDENT.