Kerala High Court
Anandu R Pillai vs The Chairman on 14 May, 2016
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938
WP(C).No. 39134 of 2016 (N)
----------------------------
PETITIONER(S):
-------------
1. ANANDU R PILLAI
CIVIL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, PANCHAJANYAM, KOIPURAM PO,
PATHANAMTHITTA.
2. ASWATHY SHAJI
CIVIL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, KALEELIL HOUSE,
MURINJAKAL PO, KOOKAL, PATHANAMTHITTA.
3. ALSHIFI SHAJAHAN
CIVIL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, KUTTIVILAYIL,
ATHIKATTAKULANGARA PO, ALAPPUZHA.
4. HASHIM HUZZINE
CIVIL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SHAH MAHAL,
KOLLAKADAVU PO, CHENGANNUR, ALAPPUZHA.
5. AJAY CHANDRAN
COMPUTER SCIENCE & ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, ALUNILKUNNAKALAYIL HOUSE,
EDAPAVOOR PO, AYROOR, RANNI.
6. MONS K.CHERIAN
COMPUTER SCIENCE & ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, KANJIRATHAMALA,
PEZHUMPARA PO, VADASSERIKARA,
PATHANAMTHITTA.
7. SAHEED N.
COMPUTER SCIENCE & ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, YAZEEN MANZIL (H),
VALAVUPACHA PO, KOLLAM.
[CONTD.....]
WP(C).No. 39134 of 2016 (N) 2
8. ANAGHA S.
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, VARAVANNOOR (H),
AZHOOR, PATHANAMTHITTA PO, PIN-689 645.
9. ASHIYA B.SIRAJ
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA,ASHIYA MANZIL,
MANCHALLOOR, KUNDAYAM PO, PATHANAMTHITTA.
10. GEETHU T.
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, NEETHU BHAVAN,
EZHUMZTTOOR PO, MALLAPPALLY.
11. JUBINA P.AZIZ
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, PALLITHADATHIL,
CHUNKAPPARA, PATHANAMTHITTA.
12. N.FATHIMA SHOWKATH C.A.
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, MALANKAVIL VEEDU,
KARAMOODU, KUNDAYAM.
13. G.NANDA KISHORE
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, KALEECHAL HOUSE,
THULAMPARAMPU NORTH, MANNARASALA PO, ALLEPPY.
14. LAKSHMI P.
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SREE NARAYANAPURAM VEEDU,
KARIMPALOOR, PATHANAPURAM.
15. RIBU RAJU
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, MURUPPEL (H),
MALLASSERY CITY, MALLASSERY PO,
PATHANAMTHITTA.
16. SHABNA B.
ELECTRONICS & COMMUNICATION ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SHABNA MANZIL,
CHITTOOR WARD, PATHANAMTHITTA.
17. NEEL RAJAN
ELECTRICAL & ELECTRONICS ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, CHERAMPALLIL HOUSE,
KULANADA PO, PANDALAM.
[CONTD.....]
WP(C).No. 39134 of 2016 (N) 3
18. SREEJITH PUSHPAN
ELECTRICAL & ELECTRONICS ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SREESAILAM,
ERATHUKULAKKADA, KULAKKADA PO, KOTTARAKKARA.
19. SHRUTHY UDAYAN
ELECTRICAL & ELECTRONICS ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SHRUTHY (H), MALAYALAPUZHA,
THAZHAM PO, PATHANAMTHITTA.
20. U.G.THAMPURAN
ELECTRICAL & ELECTRONICS ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, SOPANAM, MANGARAM,
PANDALAM, PATHANAMTHITTA.
21. ASHWIN SURENDRAN
MECHANICAL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, KANDATHIL,
MUTTOM PO, HARIPAD.
22. JOFIN SAM
MECHANICAL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, CHARUVILA PUTHENVEEDU,
PUNCHAKONAM, KARUKONE PO, ANCHAL.
23. SONU K.
MECHANICAL ENGINEERING
(MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY)
PATHANAMTHITTA, THANNINILKUNNA MURIYIL (H),
PUTHENPEEDIKA, OMALLOOR PO.
BY ADVS.SRI.P.RAVINDRAN (SR.)
SRI.SREEDHAR RAVINDRAN
RESPONDENT(S):
--------------
1. THE CHAIRMAN , ADMISSION SUPERVISORY COMMITTEE
FOR PROFESSIONAL COLLEGES IN KERALA,
M.P.APPAN ROAD, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
2. MUSALIAR COLLEGE OF ENGINEERING & TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN,
PATHANAMTHITTA-689 653.
3. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REPRESENTED BY ITS SECRETARY,
7TH FLOOR, CHANDRALOK BUILDING,
JANPATH, NEW DELHI-110 001.
[CONTD.....]
WP(C).No. 39134 of 2016 (N) 4
4. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
CET CAMPUS, THIRUVANANTHAPURAM-695 016,
REPRESENTED BY ITS REGISTRAR.
BY ADVS. SRI.S.KRISHNAMURTHY,SC, AICTE
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
SMT.MARY BENJAMIN, SC, ASC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16-12-2017, ALONG WITH WP(C) NO.39826 OF 2016, THE COURT
ON 12-01-2017 DELIVERED THE FOLLOWING:
WP(C).No. 39134 of 2016 (N)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 - COPY OF THE HIGHER SECONDARY CERTIFICATE OF THE
PETITIONERS.
EXT.P2 - COPY OF THE ORDER OF THE UNIVERSITY GRANTING
AFFILIATION DATED 14-5-2016.
EXT.P3 - COPY OF THE ORDER OF THE AICTE GRANTING APPROVAL
DATED 29-4-2016.
EXT.P4 - COPY OF THE REQUEST SUBMITTED BY THE 2ND RESPONDENT
DATED 17-5-2016.
EXT.P5 - COPY OF THE GOVERNMENT ORDER DATED 30-6-2016.
EXT.P6 - COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT
DATED 11-7-2016.
EXT.P7 - COPY OF THE COVERING LETTER OF THE 2ND RESPONDENT
TO THE 1ST RESPONDENT DATED 30-8-2016.
EXT.P8 - COPY OF THE LIST OF STUDENTS ADMITTED FOR THE YEAR
2016-17.
EXT.P9 - COPY OF THE HALL TICKETS OF THE PETITIONERS 1 TO 4.
EXT.P10 - COPY OF THE COMMUNICATION ISSUED BY THE 1ST
RESPONDENT DATED 28-11-2016.
EXT.P11 - COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT TO
THE 1ST RESPONDENT DATED 29-11-2016.
EXT.P12 - COPY OF THE E-MAIL COMMUNICATION SUBMITTED TO THE
1ST RESPONDENT DATED 2-12-2016.
EXT.P13 - COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 1-12-2016.
EXT.P14 - COPY OF THE RELEVANT EXTRACT OF THE APPROVAL
PROCESS HANDBOOK 2016-2017.
RESPONDENTS' EXHIBITS:-
ANX. R3(A) - RELEVANT PORTION OF THE APPROVAL PROCESS HANDBOOK
2016-2017 ISSUED BY ALL INDIA COUNSEL FOR TECHNICAL
EDUCATION.
ANX. R3(B) - COPY OF THE ORDER DATED 06.01.2016.
ANX. R3(C) - COPY OF THE JUDGMENT DATED 15.07.2016 IN WP(C)
NO.21978 OF 2016 OF THIS COURT.
ANX. R3(D) - COPY OF THE INTERIM ORDER DATED 11.08.2016 IN W.A.
NO.1583 OF 2016.
//TRUE COPY//
P.A. TO JUDGE
sp
[CASE REPORTABLE]
P.R. RAMACHANDRA MENON & P.SOMARAJAN,JJ.
---------------------------------------
W.P.(C) Nos.39134 & 39826 of 2016
---------------------------------------
Dated this the 12th day of January, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Rejection of approval of admission of `NRI' students in the Engineering Course/s made by the Educational Institution, directing the Technological University, to remove the names of the students concerned, from the list of `registered' students, as ordered by the Admission Supervisory Committee [ASC for short] constituted under Act 19 of 2006, is the subject matter of challenge in both these writ petitions. WP(C) No.39134 of 2016 has been filed by the students of the 2nd respondent Institution, whereas WP(C) No.39826 of 2016 has been filed by an Educational Institution, raising a similar challenge. W.P.(C) Nos.39134 & 39826 of 2016 2
2. Heard Sri.P. Ravindran, the learned Senior Counsel, appearing for the petitioners/students in WP(C) No.39134 of 2016, Sri.C.R. Sivakumar, the learned counsel appearing for the petitioner/Institution in WP(C) No.39826 of 2016, Sri.S.Krishnamoorthi, the learned Standing Counsel, appearing for the AICTE as well as for the APJ Abdul Kalam Technological University in both the cases, Smt.Mary Benjamin, the learned Standing Counsel, appearing for the ASC and the learned Senior Government Pleader, who appeared for the State/Department.
3. Pleadings and proceedings are referred to as given in WP(C) No.39134 of 2016, except where it is separately referred to, dealing with the other case.
4. The petitioner students were aspirants to have admissions for the first year B.Tech Engineering course in the 2nd respondent College under the `NRI' Quota. By virtue of paragraph 17 of Ext.P5 G.O. dated 30.06.2016, a separate Quota is prescribed for `NRI' students, to an extent of 15%, who need not have to clear the common Entrance W.P.(C) Nos.39134 & 39826 of 2016 3 Examination, but for satisfying the minimum of 45% marks at the 'Plus Two level', who could be given admission directly by the Self Financing Institution. Ext.P1 series School Certificates reveal that the petitioners/students are having 45% or above marks in the 'Plus Two level'. Accordingly, they applied for admission in the 2ndrespondent College, obtained the same and are pursuing studies there.
5. It is stated that the 2nd respondent College was started in the year 2011, at which point of time, it was under the Mahatma Gandhi University. Subsequently, the 4th respondent University was formed in the year 2015, upon which, the Educational Institution came to be affiliated to the said University. Ext.P2 dated 14.05.2016 is a copy of the extension of affiliation given by the 4th respondent University. Similarly, approval given by the AICTE was extended in respect of the year 2016-2017, as per Ext.P3 dated 29.04.2016.
6. It is borne out by the pleadings and proceedings; that an agreement was executed between the Government W.P.(C) Nos.39134 & 39826 of 2016 4 on one side and the Association of the Self-financing Management Institutions [also representing the 2nd respondent in WP(C) No.39134 of 2016 and the petitioner in WP(C) No.39826 of 2016] on the other side, whereby it was open for the Educational Institution to have admitted `NRI' students to an extent of 15% for the year 2016-2017. It is however seen that, no copy of the Prospectus or other agreement, if any, executed between the Educational Institution and the Government was made available before the ASC for their approval, in terms of the relevant Government Order issued in this regard. The 2nd respondent Institution, on being alerted by the ASC as per letter dated 22.08.2016, forwarded Ext.P8 list of admitted students, including the Management Quota and the NRI segment to the ASC, along with Ext.P7 covering letter dated 30.08.2016.
7. As already pointed out, the petitioners, on securing admissions as `NRI' students in the 2nd respondent Institution, while pursuing their studies, have been issued Ext.P9 series Hall Tickets in connection with the Semester W.P.(C) Nos.39134 & 39826 of 2016 5 Examinations scheduled to be conducted on 13.12.2016, which however is stated as adjourned, for the time being. All of a sudden, the 2nd respondent College received an e- mail from the ASC on 28.11.2016 to the effect that the approval in respect of `NRI' students would stand withheld. As per the very same proceeding, the Principal of the Institution was required to appear on 30.11.2016 at 10am, simultaneously instructing him to inform the position to the candidates as well, so that they could also be present before the ASC. The Principal of the 2nd respondent Institution submitted a reply dated 29.11.2016, explaining the circumstances and conceding that 'AICTE approval' was not obtained in respect of the `NRI' students, as the AICTE web portal was disabled. This was followed by Ext.P12 communication dated 02.12.2016 issued by the Chairman of the 2nd respondent Institution, addressed to the ASC. Allegedly without any regard to the facts and circumstances, the ASC issued Ext.P13 order dated 01.12.2016, whereby the petitioners/ NRI students were ordered to be expelled, W.P.(C) Nos.39134 & 39826 of 2016 6 while approving the admission of others. Consequential directions were issued to the University as well, to remove the names of the NRI students from the list of eligible candidates. The reason for expulsion of the petitioners was that, the 2nd respondent Institution had not obtained approval of the AICTE, for admission in the `NRI' Quota.
8. The version of the petitioners is that, the 2nd respondent Educational Institution had virtually submitted Ext.P4 request dated 17.05.2016 before the AICTE, pointing out that, while submitting the application for extension of approval, the relevant column in respect of the `NRI' segment was filled up as `NA' by way of 'mistake' and that the College had proposed to take `NRI' students as and when allotted. It was thereafter, that Ext.P5 G.O. [MS] No.155/2016/ H.Edn. dated 30.06.2016 was issued by the Government, governing the admission and fee structure for allotment of seats in Professional Degree courses, for the academic year 2016-2017. As per paragraph 17 of Ext.P5 Government Order, it was stipulated that the Educational W.P.(C) Nos.39134 & 39826 of 2016 7 agency shall be entitled to fill up 15% seats in the `NRI' category by admitting qualified students, who were dependants of `Non-Resident Indians', as per Section 2(o) of Act 19 of 2006 [wrongly typed as Section 2(c)] and that, all these students are exempted from qualifying in any Entrance Test and can be admitted, if they satisfy the prescribed conditions of academic eligibility.
9. According to the petitioners, there was no response from the part of the AICTE, despite sending Ext.P4 request dated 17.05.2016. This made the College to send another communication by way of Ext.P6 dated 11.07.2016, making a reference to the earlier one [Ext.P4 dated 17.05.2016], for permitting to have `NRI' admission. It was thereafter, that Ext.P8 list of candidates was finalized and forwarded to the ASC, along with Ext.P7.
10. According to the learned Senior Counsel appearing for the petitioners, the only reason for rejecting the approval of `NRI' students as per Ext.P13, is that, the 2nd respondent Educational Institution was not having the W.P.(C) Nos.39134 & 39826 of 2016 8 'AICTE approval', which, as such, is not correct. It is further pointed out that, the matters for which approval of the AICTE is required are given under Regulation No.4, relevant portion of which is extracted below:
"4. Requirement of grant of approval-
(1) After the commencement of these
regulations,-
(a) no new technical institution or
University Technical Department, shall be
started; or
(b) no course or programme shall
be introduced by any technical institutions, University including a deemed University or University Department or College; or
(c) no technical institutions, Universities or deemed Universities or University Departments or Colleges shall continue in admit students for Degree or Diploma courses or programmes;
(d) no approved intake capacity of seats shall be increased or varied; except with the approval of the Council.
(2) Applications for grant of approval under sub-regulation (1) shall be made by any of the following, namely:-
(i) Government institutions,
Government aided institutions, deemed
Universities and University Departments or Colleges;
(ii) registered societies/trusts."
11. The AICTE has issued Approval Process Handbook, Chapter II of which deals with applications for introducing/ continuing/discontinuing seats for sons/daughters of NRIs. W.P.(C) Nos.39134 & 39826 of 2016 9 According to the petitioners, the said Handbook does not say anything with regard to the 'Quota' and that the `NRI' Quota arises only by virtue of the agreement already executed with the Government. As per the Handbook issued by the AICTE for 2016-2017, various forms are given, which provides for a single application for meeting various requirements. Prescription in the said Handbook is stated as not having any statutory flavour. Clause/Paragraph 2.2 in Chapter II of the Handbook stipulates that approval of the AICTE is to be obtained, for introducing/continuing/ discontinuing seats for sons/ daughters of `NRIs'. Paragraph 3.3 stipulates that, a processing fee of Rs.2 lakhs is to be paid in respect of applications for introduction or continuance of `NRI' seats. Paragraph 13 of the said Handbook deals with the `Supernumerary Quota' for Foreign Nationals/`Persons of Indian Origin [PIO]'/Children of Indian workers in Gulf Countries. Paragraph 14 deals with the admissions of sons/daughters of `Non-Resident Indians'. W.P.(C) Nos.39134 & 39826 of 2016 10
12. According to the learned Senior Counsel appearing for the petitioners, the Approval Process Handbook issued by the AICTE is a Self Contained Code and if at all there is any non-compliance with the provisions therein, consequences are also separately stipulated under Chapter IV, a true copy of which has been produced as Ext.P14. Paragraph 1 alone is stated as applicable in the instant case, which hence is extracted below:
"Clause 1 1.1 An Institution running any Program/Course in Technical Education in violation of Regulations/Approval Process Handbook (APH) 2016-17, shall be liable to appropriate initiation of Penal/Civil action including fine, no admission, reduction in sanctioned intake, withdrawal of approval and/or criminal action by the Council against defaulting Societies/ Trusts/ Companies/ Associated Individuals and/or the Institution, as the case may be.
1.2 Provided that, if any Technical Institution contravenes any of the provisions of concerned regulations, the Council through Standing Complaint Committee (SCC) after making such inquiry as it may consider appropriate and after giving Technical Institution concerned, an opportunity of being heard, make recommendation to the AICTE. If further aggrieved, an appeal an be preferred before the Standing Appellate Committee (SAC) and upon recommendation of SAC, the Council may take appropriate decision as per the Act and Regulations.W.P.(C) Nos.39134 & 39826 of 2016 11
Provided further that in case of such a withdrawal, the operations of the said Technical Institution/Society/ Trust/Section 25 Company, Program/Course shall not be started again before completion of two years from the date of such a withdrawal at the same location/address.
Provided further that, the students admitted to the Institute whose approval has been withdrawn, shall be redistributed to other Institutions in the jurisdiction of the affiliating University by the competent authority of the respective State Governments/UT.
Such Institution where the approval has been withdrawn, the Institution has to apply afresh for approval as per the procedure for setting up a new Institute as defined in Chapter I."
13. With reference to the above provisions, the learned Senior Counsel submits that, the AICTE is a statutory body, constituted as per the AICTE Act, by way of Parliamentary legislation and as such, the alleged violation on the part of the 2nd respondent Institution for not having obtained approval of the AICTE for admitting `NRI' students can only be a matter to be considered by the AICTE and not by the ASC. It is also pointed out that, the said violation can entail only in penal/civil action, including 'fine' or such other consequence as mentioned already and that the aggrieved parties are having a right of appeal as well. Reference is W.P.(C) Nos.39134 & 39826 of 2016 12 also made to the powers of the ASC, as dealt with under Section 4 of the Act 19 of 2006, particularly sub-Sections (7) & (8) to the effect that, the action contemplated therein could only be in respect of the violation of the provisions of the said Act and not other violations, if any, as in respect of the Regulations or the contents/provisions in the Approval Process Handbook issued by the AICTE. It is further pointed out that, the direction given in Ext.P13 to the respondent University, to remove the names of the petitioners, is beyond the power and competence of the ASC. It is contended that even the University does not have any such power, in so far as the violation and its consequences as involved herein are concerned and it can be considered only by the AICTE. It is further submitted that, the 'approval' to be given by the AICTE is not a 'prior approval' and that it can be sought for and obtained at any time, adding further that the petitioners/students have not been given an opportunity of hearing before Ext.P13 order was passed, thus resulting in violation of the principles of W.P.(C) Nos.39134 & 39826 of 2016 13 natural justice as well and hence seeks for interference of this Court.
14. Sri.S. Krishnamoorthi, the learned Standing Counsel appearing for the AICTE as well as the Technological University submits that the admission in Technical Institution can only be subject to the approval of the AICTE, who is the ultimate authority in this regard. With reference to paragraph 14.1 of the Approval Process Handbook, the learned Standing Counsel submits that, only 5% seats, within the sanctioned intake, is provided for the NRI category and that for giving admissions in this sector, the Institutions shall apply to the Council, also satisfying the fees prescribed, to be considered and granted, subject to the condition that, the Institute shall have 'zero deficiency' as per the report generated. Paragraph 14.1 of the Handbook reads as follows:
"14. Admissions for Sons and Daughters of Non Resident Indian(s) 14.1 a. For seeking grant of approval for admitting Sons & Daughters of Non Resident Indian(s), Institutes shall apply to the council.W.P.(C) Nos.39134 & 39826 of 2016 14
b. A 5% of seats within sanctioned intake is provided for NRI category.
c. The Institute shall have zero Deficiency as per the report generated."
15. It is pointed out that, this provision was there, right from 2013-2014. Supernumerary Quota is provided in respect of Foreign Nationals/Persons of Indian Origin as dealt with under paragraph 13 of the very same Approval Process Handbook. It is the State Government, who has clubbed both these segments together and wrongly treated as `NRI', fixing it as 15%, as per the relevant G.O. However, the fact remains that, it has to be considered and approved by the AICTE. Even for starting admission in the `NRI' sector and also for extension of approval, separate applications are to be submitted and the prescribed fee is to be remitted. It is pointed out that, on receipt of such application and satisfaction of fees, inspection will be conducted to ascertain the relevant parameters in this regard and only on getting approval, could the Institution proceed with further steps to admit students under this segment. Admittedly, in both the cases, no such specific W.P.(C) Nos.39134 & 39826 of 2016 15 application was made in respect of the academic year 2016- 2017 and no payment of fee, as prescribed, was remitted at any point of time. In the absence of any such application and for want of satisfaction of fees, no `NRI' student could have been validly admitted, more so when the `NRI' students are treated as belonging to a different stream, who are given entry without passing any Entrance Examination, but for mere possessing 45% marks in the 'Plus Two' level. If at all any such application was to be made, it had to be considered and finalized before 30th of April, in view of the 'cut off date' prescribed by the Supreme Court, as discernible from the observations made in Parshvanath Charitable Trust and Others v. All India Council for Tech. Edu. and Others [2013] 3 SCC 385].
16. The version of the petitioners that, there was some mistake in the Web-Portal of the AICTE and as such, the Institution could not make the application on time, is stated as wrong and unfounded, adding that, had it been the case, no other similar Self-Financing Institutions could have W.P.(C) Nos.39134 & 39826 of 2016 16 submitted any application and obtained the clearance. Web- Portal cannot be defective for the petitioners alone and that apart, if at all any grievance was there, it had to be raised immediately and the approval granted by the AICTE excluding the NRI Quota ought to have been challenged then and there, which has not been done. The learned Standing Counsel for the AICTE adds that, Annexure R3(c) verdict passed by a learned Single Judge of this Court, referring to the alleged closing of the Web-Portal, granting relief to the petitioner Institution has been stayed by Division Bench as per Annexure R3(d) order dated 11.08.2016 in WA No.1583 of 2016; after making a reference to the cut off dates mentioned by the Supreme Court in Parshvanath's case.
17. With reference to the affiliation given by the University as per Ext.P2, the learned Standing Counsel appearing for the University submits that, it was clearly stipulated as per Condition No.(iii) that the Institution shall observe all the requirements and shall follow the W.P.(C) Nos.39134 & 39826 of 2016 17 stipulations and norms prescribed by the AICTE as contained in the Approval Process Handbook 2016-2017. As such, the University could not have ignored the contents of the AICTE Approval Process Handbook. Merely for the reason that Hall Tickets had been issued to the students, the students do not acquire any vested right to participate in the Examinations or to pursue their studies, unless their admission is declared as valid. Simply for the reason that, the mistake has been detected by the ASC, no unlawful gain shall be extended to the Educational Institution or the students, if the admission given itself is basically wrong and invalid. It is also pointed out that, the University is bound to follow the AICTE norms by virtue of the mandate under Section 60 of the APJ Abdul Kalam Technological University Act, 2015.
18. Mr.Elvin Peter P.J., the learned counsel appearing for the 2nd respondent Institution in WP(C) No.39134 of 2016 submits that the one-time application for getting approval from the AICTE had to be submitted in December and concedes that, there was an 'inadvertant omission' in W.P.(C) Nos.39134 & 39826 of 2016 18 the application. On coming across the said mistake/omission with respect to the 'NRI' segment, the Institution wrote to the AICTE as per Ext.P4 dated 17.05.2016, for granting a chance to remit the fee for 'NRI' approval, which is stated as not entertained. But no explanation is forthcoming as to how Ext.P4 request was communicated; whether it was sent by registered post, speed post, by fax or e-mail. No material is produced before this Court to reveal service of the same upon the AICTE. The admitted fact remains that, no fee was remitted to have the 'NRI' approval for the year 2016-2017, The approval given by the AICTE without including the 'NRI' segment by way of Ext.P3 has never been subjected to challenge so far; even at this stage. Admittedly, the 2nd respondent Institution has not raised any such challenge either before this Court or elsewhere. Ext.P2 affiliation given by the University is also with reference to the mandate of the AICTE norms. If the 2nd respondent Institution was actually aggrieved of the lapses/inadequacy/mistake in the approval granted by the AICTE vide Ext.P3 or the affiliation W.P.(C) Nos.39134 & 39826 of 2016 19 given by the University vide Ext.P2 [both excluding NRI students], it is not known why the Institution had not approached this Court for appropriate reliefs, challenging the said proceedings, at appropriate time.
19. The learned counsel appearing for the 2nd respondent Institution submits that, Chapter I of the Approval Process Handbook deals with approval of the new Institutions, while Chapter II deals with approval of admissions of 'NRI' segment. The consequences for violation are given in Chapter IV and as borne by paragraph 1.1, it could only be some penalty or 'fine' and the like. Distinction is also sought to be drawn in respect of the verdict passed by the Apex Court in (2013) 3 SCC 385 [ cited supra] fixing the time limit, stating that, it was a case, where, the premise of the Educational Institution was shifted to a new site without prior approval of the AICTE, University or the State and hence that, the cut off date cannot have any significance for the case in hand. This Court finds it difficult to agree. The observations made by the Apex Court in the W.P.(C) Nos.39134 & 39826 of 2016 20 said decision are more in the form of "general directions"
and applicable to all concerned. Paragraphs 39 & 46 of the above verdict read as follows:
"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:
Event Schedule
Conduct of entrance examination [AIEEE/ In the month of May
State CET/Management quota exams, etc.] Declaration of result of qualifying On or before 5th June examination [12th exam or similar] and entrance examination 1st round of counselling/admission for To be completed on or before allotment of seats 30th June 2nd round of counselling for allotment of To be completed on or before seats 10th July Last round of counselling for allotment of To be completed on or before seats 20th July Last date for admitting candidates in seats 30th July other than allotted above however, any number of rounds for counselling could be conducted depending on local requirements, but all the rounds shall be completed before 30th July Commencement for academic session 1st August Last date up to which students can be 30th August 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 refusing approval by 30th April AICTE W.P.(C) Nos.39134 & 39826 of 2016 21 Event Schedule Last date of granting or refusing approval by 31st May University/State Government xxxxx xxxxx
46. For the reasons afore-recorded, we find no merit in both the appeals afore- referred. While dismissing these appeals, we issue the following directions:
46.1 Both grant/refusal of approval and admission schedule, as aforestated, shall be strictly adhered to by all the authorities 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.
46.3. While dealing with the application for grant of approval to new colleges or additional seats, AICTE shall inform the applicant within three weeks from the date of receipt of its application or date of inspection, as the case may be, the shortcomings/defects, who, in turn, shall remove such shortcomings/defects within 15 days from the date of such communication or within such period as AICTE may grant and re-submit its papers without default. The process of grant of approval has to be transparent and fair. AICTE or the University or the State Government concerned shall take disciplinary action against the person who commits default in adherence to the schedule and performance of his duties in W.P.(C) Nos.39134 & 39826 of 2016 22 accordance therewith."
20. Smt.Mary Benjamin, the learned Standing Counsel appearing for the ASC, submits that, the action pursued by the Committee is well within the powers conferred upon the Committee as per Act 19 of 2006, which is mainly to ensure that the admissions effected in the professional Educational Institutions are fair, transparent and without any instance of profiteering/exploitation or involving any capitation fee; thus satisfying the 'Triple Tests' enunciated by the Apex Court. The question as to the power, competence and jurisdiction of the Committee has already been considered by another Division Bench of this Court and it has been declared as per the decision reported in Kerala Private Medical College Management Association v. Admission Supervisory Committee For Professional Colleges [2013 (3) KLT 316] that the Committee is having power and jurisdiction to intervene at any stage, which is stated as upheld by the Apex Court. Reference is also made by the verdict passed by this Court reported in Self Development W.P.(C) Nos.39134 & 39826 of 2016 23 Aims Trust, Palakkad and Another v. Admission Supervisory Committee for Professional Colleges in Kerala, Trivandrum and others [2016 (5) KHC 517] [to which one of us - Justice P.R. Ramachandra Menon, was a member].
21. As per the relevant provisions of law, it was quite obligatory for the Educational Institutions to have submitted their Prospectus and the Agreement stated as entered with the Government, for seat sharing before the Committee and to have got it approved. It is pointed out that, there is no much pith or substance in the contention that, the Committee has issued the impugned proceedings only in the 11th hour and without affording an opportunity of hearing. Admissions were being effected by the Educational Institutions, based on the Agreement stated as executed between their Association and the Government and also the subsequent G.O. dated 30.06.2016 issued by the Government [produced as Ext.P5]. As discernible from the opening paragraph of Ext.P13 issued by the Committee, the W.P.(C) Nos.39134 & 39826 of 2016 24 Association representing the Educational Institutions was required, vide letter dated 02.05.2016, to submit the Prospectus of the member Colleges for the year 2016-2017. On a query raised by the Association, whether they could submit the Prospectus after executing the Agreement or should it be done before, it was informed by the Committee that, they could submit the Prospectus after execution of the Agreement, to avoid repetition of facts. As per Ext.P5 G.O. dated 30.06.2016, it was disclosed that, Agreement had already been executed [as mentioned in paragraph 3 of Ext.P13 proceedings of the Committee]. Eventhough the office bearers of the Association were contracted for submitting the Prospectus and the Agreement, none of them chose to submit the same and were not approved so far. It was taking note of the subsequent developments as mentioned in paragraph 4 of Ext.P13, and to save time as mentioned in paragraph 5, that further proceedings were pursued. Ext.P8 list of the students, who were admitted was submitted by the 2nd respondent Educational Institution, W.P.(C) Nos.39134 & 39826 of 2016 25 along with Ext.P7 forwarding letter dated 30.08.2016; which refers to the letter dated 22.08.2016 sent by the Committee in this regard. It was after submission of the above particulars on 30.08.2016 that, they were verified by the Committee, which revealed the incriminating circumstances, which was sought to be explained by issuing a notice to the Principal of the Institution, as stated in paragraph 9 of Ext.P13. The 'NRI' candidates were also given a chance to be present before the Committee [as to be communicated through the Principal, as mentioned therein] but no student had appeared on 01.12.2016. It was also conceded by the 2nd respondent Institution before the Committee [as observed in paragraph 10 of Ext.P13] that, no application for approval had been made to the AICTE so far and the only submission was that an attempt would be made to get approval of the AICTE for 'NRI' admission. The inference drawn by the Committee that, 'NRI' candidates were admitted without approval of the AICTE stands unrebutted. The position with regard to the fact that, no approval W.P.(C) Nos.39134 & 39826 of 2016 26 application was submitted in respect of the year 2016-2017 with respect to NRI Quota and no fee in this regard was remitted stands conceded. Admittedly, the approval given by the AICTE vide Ext.P3 dated 29.04.2016 does not include permission for 'NRI' Quota and still, the Educational Institution has not approached this Court till date, challenging the proceedings of the AICTE or that of the Technological University [vide Ext.P2 application excluding NRI Quota], if any grievance was to be redressed in any manner. As it stands so, there is absolutely no merit in contending that the Committee was sleeping over the issue, or that no opportunity of hearing was given.
22. With regard to the students/petitioners in WP(C) No.39134 of 2016, the learned Standing Counsel for the ASC submits that, the Committee is not bound to issue notice to the students as the scrutiny being made in terms of the statute, is with reference to the course and procedure pursued by the Institution in giving admission and it is for the Institution to substantiate the facts and figures to the W.P.(C) Nos.39134 & 39826 of 2016 27 satisfaction of the Committee, where they have failed. That apart, no particulars of the students admitted with reference to their address is given in Ext.P8 furnished by the Institution. Their particulars are not contained anywhere in the proceedings of the Commissioner for Entrance Examinations as well; obviously since the 'NRI' students admitted were never supposed to pass any Entrance test, but for satisfaction of 45% marks in the 'Plus Two' level. The lapse/omission on the part of the Educational Institution is clearly evident from Ext.P11 submission dated 29.11.2016 preferred by them before the Committee, which is extracted below:
"As the admissions were low in 2016-
17 due to change in admission policy and many NRI candidates approached for admission in the closing days of admission, it was decided by the Musaliyar Education Trust to admit students under normally permissible NRI Quota after taking necessary approval. The NRI approval process could not be progressed as the AICTE portal was disabled. However, due to the then prevailed crises and to provide education for the eligible NRI candidates, the college went ahead to admit them and to seek ex-post facto sanction for NRI W.P.(C) Nos.39134 & 39826 of 2016 28 admission as and when the AICTE portal is enabled. It is assured that the college will make all efforts to get the approval for the NRI admissions of 2016-17. It is brought to your notice that, out of 360 seats, the intake for 2016-17 was only 157 inclusive of 23 NRI students. The College has not denied admission to any of the qualified students who approached."
The ASC cannot be expected to remain as a silence spectator to the atrocities being pursued by the Educational Institutions and the authority to intervene stands answered by a Division Bench of this Court as per the verdict passed on 10.04.2015 in WP(C) No.17328 of 2014 and connected cases.
23. During the course of hearing, it was submitted by the learned counsel for the 2nd respondent Institution [in WP(C) No.39134 of 2016] that Ext.R3(d) order passed by the Division Bench of this Court on 11.08.2016, staying the operation of Ext.R3(c) verdict passed by the learned Single Judge, has already been intercepted by the Apex Court, based on the submission made by the learned Standing Counsel for the AICTE that, there was no excess admission W.P.(C) Nos.39134 & 39826 of 2016 29 beyond the 'NRI' Quota and further that, it was only a procedural irregularity, for which, 'fine' has to be imposed. The SLPs were disposed of accordingly. In the said circumstances, the bar of time schedule stipulated by the Supreme Court in Parshvanath's case [cited supra] will not be attracted and seeks the case to be disposed of in similar terms, stating that the Educational Institution is ready to satisfy the 'fees' and also the 'fine'/penalty, if any. The said submission is sought to be adopted by the petitioner in the connected writ petition as well.
24. The learned Standing Counsel appearing for the AICTE submits that, Ext.R3(c) verdict and the verdict passed by the Supreme Court [against Ext.R3(d) order passed by the Division Bench] are not applicable to the case in hand, as the factual position involved in the former cases is entirely different. In the aforesaid cases, there was a fact finding exercise by the learned Single Judge holding that, there was "zero percent deficiency"; that the Institutions were already permitted to have 'NRI' admissions to the W.P.(C) Nos.39134 & 39826 of 2016 30 requisite extent; that the issue was only regarding rejection of the application for renewal of 'NRI' Quota; that the Institutions had already made applications in this regard, which came to be rejected by the AICTE; that the said orders of rejection were challenged before this Court then and there [leading to Annexure R3(c) judgment dated 15.07.2016] and that it was thereafter that admissions were made by the Institutions in the 'NRI' Quota based on the Agreement/Government Order issued in this regard. In the instant case, no such similarity is there, in so far as no application was ever submitted before the AICTE for the year 2016-2017, no fee for getting approval of 'NRI' Quota was remitted, the 'approval order' issued by the AICTE and 'affiliation order' by the University [both excluding the 'NRI' Quota] were never challenged [even now] and as such, there was no occasion for the AICTE to have considered the position or to have passed any order to impose 'fine' for the lapse in this regard. It is also pointed out that, the AICTE was never a party to the proceedings before the ASC or to W.P.(C) Nos.39134 & 39826 of 2016 31 the 'Agreement' stated as executed by the Association of Self-financing Institutions with the Government and it is not bound by the said terms. The Approval Process Handbook is stated as statutory, by virtue of the Regulations framed under Section 23 of the AICTE Act and further that, the maximum extent of 'NRI' Quota is only 5% and never beyond.
25. In the above circumstances, it has become necessary to ascertain whether there is any similarity and if the verdict passed by the Supreme Court in the SLPs arising from Annexure R3(c)/R3(d) verdicts is to be made applicable in the case of the petitioners. The operative portion of the order dated 09.11.2016 passed by the Apex Court in SLP No.25021 of 2016 reads as follows:
"Mr.Anil Soni, learned counsel appearing for the AICTE has obtained instructions and according to his instruction, the petitioner-Institution has not admitted any students beyond the NRI quota, but it had not taken the approval at the relevant point of time. According to Mr.Soni, it is a procedural mistake on the part of the petitioner-Institution for which penalty has to be levied and requisite fee to be paid. In W.P.(C) Nos.39134 & 39826 of 2016 32 view of the said submission, it is directed that the quantum of fees and penalty be computed by the AICTE and communicated to the petitioner-Institution, which shall be paid within four weeks from the date of receipt of communication. Needless to say, thereafter, the AICTE shall issue the letter of approval and the students shall be allowed to prosecute their studies as they are continuing in the petitioner-Institution. The present order is passed regard being had to special features of the case."
Similar course was pursued in respect of the connected case as well, as discernible from paragraphs 2 & 3 [unnumbered] dealing with SLP No.29893 of 2016, which are reproduced below:-
It is submitted by the learned senior counsel for the petitioner that the Institution has admitted students within the quota, but approval was not taken at the appropriate time. According to him, the case is similar to that of SLP (C) No.25021 of 2016. He has also pointed out that the controversy arises from the common order.
Mr. Anil Soni, learned counsel appearing for the AICTE would submit that the case may be disposed of in terms of the order passed in SLP(C) No.25021 of 2016."
The factual position involved in the basic case is discernible from the observations made by the learned W.P.(C) Nos.39134 & 39826 of 2016 33 Single Judge in Ext.R3(c). The relevant portion of the verdict as contained in paragraph 2 is extracted below:
"Ext.P1 in WP(C) No.21798 of 2016 is the approval process handbook of AICTE for the year 2016-2017. As per Ext.P1, existing institutions had to submit applications for extension of approval online through the web portal of AICTE. As per the norms, the existing engineering colleges are entitled to fill up 5% of the seats within the sanctioned intake under NRI quota with the prior approval of AICTE. Separate infrastructure facilities are to be provided for admitting students under NRI quota. Since both the engineering colleges have the requisite infrastructure facilities for admitting students under the NRI quota, they have been granted approval for the same by the AICTE during the previous years.
xxxxx xxxxx
5. The fact that the petitioners have the requisite infrastructure for admitting students under the NRI quota was not disputed by the Standing Counsel. Likewise, the fact that the petitioners were enjoying the benefit of NRI quota admissions during the previous years was also not disputed by the Standing Counsel. In other words, had the petitioners applied for NRI intake, they would have been certainly granted approval for the same by the AICTE. Since the petitioners have all the infrastructure facilities for admitting students under the NRI quota and since they were enjoying the benefit of NRI quota admissions during the previous years, there is no reason for them not to submit W.P.(C) Nos.39134 & 39826 of 2016 34 applications for approval of NRI intake during the current year. It is also relevant to note that the petitioners have preferred complaints well before the outer time limit prescribed for grant of approvals, pointing out their inability to submit the applications online for NRI quota and the said complaints are not seen attended to by the AICTE. In the circumstances, I am inclined to accept the case of the petitioners that they could not submit applications for the approval of NRI quota on account of the technical errors of the web portal."
26. From the above, it is evident that, the petitioners in the writ petitions, wherein Ext.R3(c) judgment was passed, stand on a different footing, having already been permitted by the AICTE to have 'NRI' admissions for the previous year and the Educational Institutions had made necessary applications for renewal, but came to be rejected by the AICTE, when they approached this Court much before giving admissions, leading to Ext.R3(c) judgment. It was in the said circumstances, that, leniency was extended by the learned Single Judge, which ultimately came to be dealt with by the Apex Court, based on the submission made by the learned counsel for the AICTE that the 'procedural W.P.(C) Nos.39134 & 39826 of 2016 35 irregularity' could be rectified by imposing 'fine', which in turn was permitted. The AICTE has granted approval after realising the 'fine', as put forth by the learned Standing Counsel.
27. The Management Association representing the petitioners, who had entered into an Agreement with the Government for seat sharing [on the basis of which, Ext.P5 G.O. dated 30.06.2016 was passed by the Government providing for filling up of 15% seats in the 'NRI' category] was very well aware as to the actual extent of 'NRI' Quota permitted by the AICTE as per paragraph 14.1(6) of the Approval Process Handbook, which is only to an extent of 5%. As a matter of fact, the Government, by virtue of paragraph/clause 17 in the G.O., had agreed to fill up 15% seats in the 'NRI' category without getting qualified in any Entrance Test; which is quite contrary to the AICTE norm. As put forth by the learned Standing Counsel appearing for the ASC, the difficulty experienced by the Management Association having admitted students to an extent of 15% in W.P.(C) Nos.39134 & 39826 of 2016 36 the 'NRI' Quota, contrary to the mandate given by the AICTE, was taken up before the Government as per representation dated 16.09.2015. After considering the same, to solve the situation, particularly when admissions were already over, the Government issued G.O.[MS] No.618/2015/H.Edn. dated 16.10.2015, whereby, sanction was given to the Educational Agencies to fill up 15% seats as 'Non-Resident Kerala [NRK]' category, by admitting qualified students, who were dependants of Non-Resident Keralites and that the fee structure would be the same as for the 'NRI' category. A copy of the said GO is produced before this Court [along with the Memo dated 16.12.2016 of the Standing Counsel for the ASC], which reads as follows:
"Government have entered agreement with KSFECMA for fee structure and seat sharing vide G.O. read as 1st paper above. Clause 20 of the said Government Order stipulates:
"The Educational Agency shall be entitled to fill up 15% seats in the NRI category (NRI) by admitting qualified students who are dependents of Non Resident Indians as per the Section 2(o) of W.P.(C) Nos.39134 & 39826 of 2016 37 Act XIX pf 2006. All these students are exempted from qualifying in any Entrance Test and can be admitted if they satisfy the prescribed conditions of academic eligibility."
The President, Kerala Self Financing Engineering College Management Association (KSFECMA), vide letter read as 3rd paper above, requested the Government to issue the clarification regarding the B.Tech.
admission under NRI quota, since the AICTE has stipulated Admission under the NRI quota as 5%.
Government have examined the matter in detail and are pleased to accord sanction to the Educational Agency to fill up 15% seats as Non Resident Keralites (NRK) category by admitting qualified students who are dependants of Non Resident Keralites.
The fee structure is same as for NRI category."
28. After getting the situation saved, the Management Association approached the ASC with a copy of the said GO vide letter dated 07.11.2015 pointing out that, the member Institutions had already admitted 15% students under the 'NRK' category. The lapse on the part of some Colleges in this regard was also conceded, assuring that such lapses will not be repeated in future and that if repeated again, the Association will not support such Colleges in their future endeavours. Indulgence of the Committee was sought for, W.P.(C) Nos.39134 & 39826 of 2016 38 to approve the admissions for the year '2015-2016' in the said circumstances, which was considered and accepted by the ASC in the light of the said G.O. dated 16.10.2015. The relevant portion of the 'undertaking' given by the Management Association in the said letter dated 07.11.2015 [a copy of which is also produced along with the Memo dated 16.12.2016 of the Standing Counsel for the ASC] is reproduced below:
"Expecting a favourable Government Order, the member colleges have admitted 15% candidates under NRK category. It is admitted that there are some lapses on the part of certain colleges. The KSFECMA has taken the issue seriously and decided to issue strict direction to the member colleges not to repeat such lapses in future ie, from next year onwards. If such lapses are repeated, the Association will not support such Colleges in their future endeavours. In this connection, the KSFECMA hereby undertake that from next year onwards, the member colleges will not commit such lapses."
The learned Standing Counsel appearing for the ASC submits that, it is without any regard to the past events, course and conduct in the last year, that the petitioners and W.P.(C) Nos.39134 & 39826 of 2016 39 9 other Institutions have repeated the very same course/ mistake and admitted 'NRI' students, even without making any application or remitting fees to the AICTE for approval. Three other Colleges have admitted students in the 'lapsed seats' without passing the common Entrance Test and in the said circumstances, the unauthorised admissions made by the Institutions have been intercepted by the Committee, approving only the permissible extent as per the relevant proceedings. We find considerable force in the said submission.
29. By virtue of Clause 4.3 of the All India Council for Technical Education [Grant of Approvals for Technical Institutions] Regulations, 2012, the Council shall publish from time to time, Approval Process Handbook, detailing the conditions for approval and procedure to process the applications of Institutions/promoters. As such, the Approval Process Handbook is of statutory in nature as rightly contended by the learned Standing Counsel for the AICTE. Further, we find from Ext.R3(b) order passed by the Apex W.P.(C) Nos.39134 & 39826 of 2016 40 Court on 06.01.2016, that the Approval Process Handbook of the AICTE for the year 2016-2017 has been approved by the Supreme Court and the AICTE has been permitted to bring in such Handbook to govern the field of admissions for the future years as well. Implementation of the Approval Process Handbook is dealt with separately under Clause 14.3, by virtue of which, there is a duty upon the competent authority of the State[competent authority as defined under Clause 2.8 of the Regulations] to collect the factual aspects from the Institution and inform the AICTE to take appropriate action, in accordance with law. In so far as there is no dispute with regard to the stipulation in the Handbook as to the extent of 'NRI' reservation [5%] and further since the provisions are not under challenge and above all, the requirements by way of submitting an application for approval and satisfaction of fees, are not satisfied, the petitioners cannot expect any relief at the hands of this Court.
30. In response to the submission made by the learned W.P.(C) Nos.39134 & 39826 of 2016 41 Senior Counsel appearing for the petitioners in WP(C) No.39134 of 20165 with reference to Ext.P3 application stated as submitted on 17.05.2016 for granting approval before the AICTE and Ext.P6 reminder dated 11.07.2016, this Court specifically asked the learned counsel, as to how the said proceedings were forwarded and to produce proof, if at all any [if it was submitted on-line, by fax, by speed post, by registered post or otherwise]. After getting instructions, the learned counsel for the 2nd respondent Educational Institution submitted that, the said applications were forwarded only through 'ordinary post'. This persuades this Court to reasonably presume that it had never reached the hands of the AICTE, as asserted by the learned Standing Counsel. Even otherwise, such application was submitted much after the cut off date of '30.04.2016' fixed by the Apex Court in Parshvanath's case [cited supra] and hence not acceptable. That apart, if at all there was any lapse or mistake on the part of the AICTE in considering the applications stated are submitted, the aggrieved parties W.P.(C) Nos.39134 & 39826 of 2016 42 ought to have approached this Court for appropriate relief, which course has not been pursued by the petitioners/Institutions or the students.
31. In the above circumstances, this Court is of the firm view that, the mistakes/lapses were consciously being perpetuated by the Educational Institutions and they have rather disowned their Association, who had given an 'undertaking' before the Committee in the last year; that such lapses will not be repeated any further [while seeking for approval of the admissions made during the year 2015- 2016]. This being the position, the petitioners do not deserve any sympathy; more so since, the issue involved is admission to professional courses, where merit cannot be compromised and further when the 'NRI' students concerned have been admitted without passing any Entrance test. Since the merit and transparency are of paramount importance, no interference is warranted by extending misplaced sympathy, which otherwise is an evil.
32. With regard to the alleged lack of power or W.P.(C) Nos.39134 & 39826 of 2016 43 competence of the Committee to have passed order like Ext.P13 declaring the admission as invalid and contending that the Committee can only make 'recommendation', it will be worthwhile to make a reference to Section 4; particularly sub-Sections 2, 7 & 8 of Section 4, as extracted below:
"Section 4(2) The Admission Supervisory Committee may adopt its own procedure for the conduct of its business.
(7) The Admission Supervisory Committee may hear complaints with regard to admission in contravention of the provisions contained herein. If the Admission Supervisory Committee after enquiry finds that there has been any violation of the provisions for admission on the part of the unaided professional colleges or institutions, it shall make appropriate recommendation to the Government for imposing a fine up to rupees ten lakhs and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or any other course of action as it deems fit and the amount so fixed together with interest thereon shall be recovered as if it were an arrear of public revenue due on land. The Admission Supervisory Committee may also declare admission made in respect of any or all seats in a particular college or institution to be de hors merit and therefore invalid and communicate the same to the concerned University. On the receipt of such communication, the W.P.(C) Nos.39134 & 39826 of 2016 44 University shall debar such candidates from appearing for any further examination and cancel the results of examinations already appeared for.
(8) The Admission Supervisory Committee may if satisfied that any unaided professional college or institution has violated any of the provisions of this Act, recommend to the University or statutory body for withdrawal of the affiliation or recognition of such college or institution or any other course of action it deems fit."
With reference to the above provisions, it was submitted by the learned Senior Counsel appearing for the petitioners, that the power of the Committee is only to make recommendations to the Government and never to pass any order like Ext.P13, directing the University to remove the names of the students admitted by the Institution. It is also pointed out that, such power to recommend can only be in the course of the supervisory function to be discharged in respect of violation of any of the provisions of the particular Act, ie., Act 19 of 2006, which cannot attract violation of the provisions of the AICTE Act, the Regulations or provisions in the Approval Process Handbook issued by the AICTE. This W.P.(C) Nos.39134 & 39826 of 2016 45 Court finds it difficult to agree to the said proposition, by virtue of the specific wording in the statute.
33. The first limb of sub-section 7 of Section 4, with reference to the contravention of the provisions of the Act in making admissions in the Institutions, deals with the complaints in this regard and as to the power of the Committee to conduct enquiry and make appropriate recommendation to the Government for imposing a fine up Rs.10 lakhs. The power vested with the Committee under sub-Section 8 of Section 4 is also with reference to violation of the provisions of Act 19 of 2006 and the authority of the Committee to recommend to the University or Statutory Body for withdrawal of the affiliation or recognition of such College or Institution or any other course of action, it deems fit. This means, both the 'first limb' of sub-Section 7 and the sub-Section 8 of Section 4 deal with the 'recommendatory' power of the Committee. Unlike this, the second limb of sub-Section 7 of Section 4 is quite categoric, which says that, the Committee may also declare admission made in W.P.(C) Nos.39134 & 39826 of 2016 46 respect of any or all seats in a particular College or Institution to be de hors merit and therefore invalid and communicate the same to the concerned University, on receipt of which, the University shall debar such candidate from appearing for any examination and cancel the results of the examination, already appeared for". It is the said power, which has been exercised by the Committee in passing Ext.P13 order and hence the University is bound to implement the same.
34. Another contention raised during the course of hearing is that, the violation of statutory provision, if any, can result only in ordering a 'fine' and that the admission given cannot be declared as invalid. Reference is made to Chapter IV of the Approval Process Handbook issued by the AICTE [copy of which has been produced as Ext.P14]. Paragraph 1.1 of Chapter IV [extracted already] clearly stipulates that, violation of regulations/Approval Process Handbook 2016-2017 shall be liable to appropriate initiation of penal/civil action including fine, no admission, reduction W.P.(C) Nos.39134 & 39826 of 2016 47 in sanctioned intake, withdrawal of approval and/or criminal action by the Council against defaulting Societies/Trusts/ Companies/Associated individuals and/or the Institution, as the case may be. Even a cursory reading of the said provision is enough to note that, payment of fine is only one of the consequential actions on violation and it is all the more open to declare it as "no admission" and such other consequences as mentioned above. Appropriate punishment is a matter to be considered by the AICTE, particularly as to the offence of violation. But, that will not mitigate the power of the Committee under sub-Section 7 of Section 4 of the Act 19 of 2006 to declare the admission as invalid, for the reasons mentioned above. Since the Educational Institution admittedly had not made any application for approval of the AICTE for the year 2016-2017 and since the prescribed fee was not remitted in this regard, the said admitted fact does not require any further proof. The finding rendered by the ASC is quite in order and not assailable.
35. Incidentally, it is noted that, Ext.P13 order has W.P.(C) Nos.39134 & 39826 of 2016 48 been passed by the Chairman of the Admission Supervisory Committee. A doubt may arise whether such an order passed by a single individual, though be the Chairman of the Committee, is liable to be treated as a proper and valid order passed by the Committee. This issue had come up for consideration before another Division Bench of this Court and as per judgment dated 10.04.2015 in WP(C) No.17328 of 2014, it was held that, by virtue of the scheme of the statute [Act 19 of 2006] and the specific power conferred upon the Committee, to regulate its own procedure, for transaction of its business as per Sections 4(2) and 5(3), read with other relevant provisions, there cannot be any dispute in this regard and that the order is valid in all respects. The verdicts rendered by the Apex Court, holding that, when a specific quorum is not mentioned in the statute, it has to be on the basis of the simple majority, was also adverted to and distinguished by the Bench with reference to the intention of the Legislature. However, since no such challenge is raised in this regard, in either of these W.P.(C) Nos.39134 & 39826 of 2016 49 writ petitions, this Court does not find it necessary to deal with this issue in any manner.
36. What emerges from the above discussion is that, there is no dispute for the petitioners that approval of the AICTE is necessary for effecting admissions to 'NRI' students and also for extension of the approval, satisfying the requisite fees. Admittedly, no applications have been preferred for the year 2016-2017 and no fee has been remitted to the AICTE in this regard. Affiliation given by the University as borne by Ext.P2 specifically alerts the Institution as per Condition No.iii incorporated therein, that, they shall observe Section 60(2) of the APJ Abdul Kalam Technological University Act; the norms and standards prescribed by the AICTE in the Approval Process Handbook 2016-2017; the Guidelines issued by the University from time to time and the Undertaking/Affidavit given by the Institution along with the application on the portal. In so far as separate infrastructure had to be arranged and the factual position in this regard had to be W.P.(C) Nos.39134 & 39826 of 2016 50 verified by the AICTE by conducting an inspection and since no application was submitted for the year 2016-2017 to have permission under the 'NRI' Quota and no fee was paid as stipulated and above all, since the cut off date fixed by the Apex Court to submit the application and to have it finalised by the AICTE is already over, the petitioners cannot now be heard to say that the admission effected under the 'NRI' Quota is liable to be treated as valid. If the students have been misguided in this regard, to what extent they are entitled to have relief against the wrong-doers, is not the subject matter involved in these cases and hence we are not expressing any opinion in this regard, more so when no 'alternate relief' is claimed in the aforesaid lines. In so far as Ext.P3 order passed by the AICTE granting approval/extension of approval in respect of the year 2016- 2017 and Ext.P2 order granting affiliation by the Technological University [both, excluding the NRI Quota] have not been challenged by the petitioners even in the present writ petition, but for challenging the orders passed W.P.(C) Nos.39134 & 39826 of 2016 51 by the Admission Supervisory Committee, this Court is of the view that the order passed by the Committee cannot be isolated from the proceedings of the AICTE/University. Since this cannot be answered in favour of the petitioners, this Court holds that the reliefs sought for in these writ petitions are not liable to be entertained. We are not expressing anything with regard to the right of the students to proceed against the Institution, for returning the due amount or to proceed against them by way of appropriate steps, if at all the deeds and misdeeds amounted to some or other offence under any of the prevailing statutes.
Writ petitions are devoid of any merit. They are dismissed accordingly.
Sd/-
P.R. RAMACHANDRA MENON, Sd/-
P.SOMARAJAN, JUDGE.
sp //True Copy// P.A. to Judge