Kerala High Court
Valia Koonambaikulathamma College Of ... vs The Chairman on 29 April, 2015
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. 39370 of 2016 (U)
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PETITIONER:
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VALIA KOONAMBAIKULATHAMMA COLLEGE OF ENGINEERING AND
TECHNOLOGY, CHAVARCODE, PARIPPALLY P.O.-691 574
REPRESENTED BY ITS PRINCIPAL.
BY ADVS.SRI.P.K.SURESH KUMAR (SR.)
SRI.SERGI JOSEPH THOMAS
RESPONDENTS:
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1. THE CHAIRMAN, ADMISSION SUPERVISORY COMMITTEE
FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4
PRASANTHI BUILDINGS, M.P. APPAN ROAD
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 001.
2. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REPRESENTED BY ITS SECRETARY, 7TH FLOOR
CHANDRALIK BUILDING, JANPATH, NEW DELHI-110 001.
3. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS
THIRUVANANTHAPURAM-695 016
REPRESENTED BY ITS REGISTRAR.
4. THE STATE OF KERALA REPRESENTED BY THE SECRETARY
TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
R3 BY ADV. SRI.S.KRISHNAMOORTHY, SC, KTU
R2 BY ADV. SRI.S.KRISHNAMURTHY,SC, AICTE
R BY GOVERNMENT PLEADER
R BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.12.2016, THE COURT ON 12.01.2017 DELIVERED THE FOLLOWING:
WP(C).No. 39370 of 2016 (U)
APPENDIX
PETITIONER'S EXHIBITS:-
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EXT.P1 - COPY OF THE PAYMENT DETAILS MADE BY THE PETITIONER
FOR THE ACADEMIC YEAR 2015-2016
EXT.P2 - COPY OF THE COMMUNICATION DATED 29.04.2015 OF THE
SECOND RESPONDENT.
EXT.P3 - COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER COLLEGE.
EXT.P4 - COPY OF THE ORDER GRANTING EXTENSION OF AFFILIATION
TO THE PETITIONER COLLEGE FOR THE ACADEMIC YEAR
2016-2017 DATED 14.05.2016 GRANTED BY THE THIRD
RESPONDENT.
EXT.P5 - COPY OF THE ORDER DATED 30.04.2016 OF THE SECOND
RESPONDENT.
EXT.P6 - COPY OF THE G.O.(MS) NO.155/2016/H.EDN.
THIRUVANANTHAPURAM DATED 30.06.2016.
EXT.P7 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P8 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P9 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P10 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P11 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P12 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P13 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P14 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P15 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P16 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
[CONTD....]
WP(C).No. 39370 of 2016 (U) 2
EXT.P17 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P18 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P19 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P20 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P21 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P12 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P13 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P14 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P15 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P26 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P27 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P28 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P29 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P30 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P31 - COPY OF THE HALL TICKET ISSUED TO THE STUDENT
ADMITTED UNDER THE NRI QUOTA.
EXT.P32 - COPY OF THE ORDER NO.ASC100/16/B.TECH/VKCET DATED
30.11.2016 ISSUED BY THE FIRST RESPONDENT.
EXT.P33 - COPIES OF PAGE NOS.1 AND 10 OF THE APPLICATION FOR
EXTENSION OF APPROVAL MADE BY THE PETITIONER FOR
THE ACADEMIC YEAR 2015-2016.
EXT.P34 - COPY OF EMAIL DATED 17.08.2016 ALONG WITH THE
SCREEN SHOT OF THE STUDENT'S REGISTRATION LINK SENT
TO THE THIRD RESPONDENT.
[CONTD....]
WP(C).No. 39370 of 2016 (U) 3
EXT.P35 - COPY OF EMAIL DATED 17.08.2016 SENT BY THE SUPPORT
TEAM OF THE THIRD RESPONDENT.
EXT.P36 - COPY OF EMAIL DATED 17.08.2016 SENT TO THE THIRD
RESPONDENT.
EXT.P37 - COPY OF THE EMAIL DATED 18.08.2016 SENT BY THE
SUPPORT TEAM OF THE THIRD RESPONDENT.
EXT.P38 - COPY OF THE LETTER NO.VKCET/C3 ADMISSION/2016-17
DATED 01.08.2016 SENT TO THE THIRD RESPONDENT.
EXT.P39 - COPY OF EMAIL DATED 28.11.2016 SENT BY THE FIRST
RESPONDENT.
EXT.P40 - COPY OF EMAIL DATED 09.12.2016 SENT BY THE THIRD
RESPONDENT.
EXT.P41 - COPY OF THE NO DEFICIENCY REPORT OF THE AICTE FOR
THE ACADEMIC YEAR 2015-2016.
RESPONDENTS' EXHIBITS:- NIL
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//TRUE COPY//
P.A. TO JUDGE
sp
P.R. RAMACHANDRA MENON & P.SOMARAJAN,JJ.
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W.P.(C) Nos.39370 of 2016
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Dated this the 12th day of January, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Challenge is against Ext.P32 order passed by the ASC [Admission Supervisory Committee], holding that 28 students who belong to the `NRI' segment are not eligible to be admitted for want of Approval of the AICTE and in turn, giving directions to the Technological University to remove their names.
2. Heard Mr.P.K. Suresh Kumar, the learned Senior Counsel appearing for the petitioner Educational Institution; Smt.Mary Benjamin, the learned Standing Counsel appearing for the 1st respondent ASC; Mr. S. Krishnamoorthy, the learned Standing Counsel for the 2nd W.P.(C) Nos.39370 of 2016 2 respondent/AICTE and also for the 3rd respondent Technological University and the learned Senior Government Pleader appearing for the 4th respondent State.
3. The challenge against Ext.P32 is mainly on the grounds that the 1st respondent does not have any power to declare the admission as invalid or to direct the University to remove the names of the students from the Roll and further that no proper opportunity of hearing was given to the petitioner or the students.
4. Mr.P.K. Suresh Kumar, the learned Senior Counsel appearing for the petitioner submits with reference to the sequence of events that, the petitioner Institution has obtained approval of the AICTE and affiliation from the 3rd respondent University to conduct Engineering Course in the 'five' different branches with an intake of 60 students in each branch. For obtaining extension of approval from the AICTE, a sum of Rs.4 lakhs was remitted by the Institution, in respect of the Academic year 2015-2016, as borne by W.P.(C) Nos.39370 of 2016 3 Ext.P1, which included a sum of Rs.3 lakhs payable in respect of Scrutiny to be conducted by the AICTE for admission of `NRI' students. But when 'extension of approval' was granted by the AICTE for the year 2015-2016 as per Ext.P2 dated 29.04.2015, in the relevant column of the table given therein, the NRI Approval Status was shown as `No'. The very same document revealed that, the total intake capacity sanctioned for the year 2014-2015 was 60. The petitioner contends that, Ext.P3 representation was submitted before the AICTE, stating that the `NRI' intake has not yet been approved and sought for extension of approval of the `NRI' students as well; though the date of submission of Ext.P3, how it was submitted, what was the position in respect of the previous year 2014-2015 etc. are not discernible therefrom.
5. The application submitted for 'extension of affiliation' before the University, was considered and granted for the year 2016-2017, with a sanctioned intake of 60 students, as W.P.(C) Nos.39370 of 2016 4 per Ext.P4 proceedings dated 14/05/2016. Ext.P5 is the extension of approval for the year 2016-2017, issued by the AICTE, on 30.04.2016. Here, the relevant column showing the `NRI' approval status has been shown as `NA' [Not Applicable]. The total intake capacity sanctioned for 2015- 2016 as '60', was retained as approved for the year 2016- 2017 as well.
6. In the further course of proceedings, the Government issued Ext.P6 G.O. dated 30.06.2016, based on the Agreement executed between the Association representing the Self-Financing Engineering Colleges [including the petitioner] and the Government, agreeing for seat sharing. Out of the total number of seats, 50% was to be earmarked as 'Merit Quota', to be allotted by the Commissioner for Entrance Examinations, based on the result in the Entrance Test; whereas 35% was to be in the 'Management Quota' and the remaining 15% in the `NRI' segment. For admission in the `NRI' sector, no clearance in W.P.(C) Nos.39370 of 2016 5 any test is necessary, but for satisfying 45% marks in the 'Plus Two' Examination as mentioned in paragraph 17of Ext.P6 G.O. It is conceded that, the petitioner Institution has effected the admissions strictly based on the said G.O., including the `NRI' segment, though approval of the AICTE was not specifically obtained. Admittedly, no amount was remitted for granting or renewal of permission to make admissions in the `NRI' Quota in respect of the year 2016- 2017.
7. 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 W.P.(C) Nos.39370 of 2016 6 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.
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."
8. 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 W.P.(C) Nos.39370 of 2016 7 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 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 W.P.(C) Nos.39370 of 2016 8 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].
9. 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 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 W.P.(C) Nos.39370 of 2016 9 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.
10. 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 W.P.(C) Nos.39370 of 2016 10 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 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].
11. 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 W.P.(C) Nos.39370 of 2016 11 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 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 the proceedings of the Committee. Eventhough the office W.P.(C) Nos.39370 of 2016 12 bearers of the Association were contacted 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 the proceedings issued by the Committee, and to save time as mentioned in paragraph 5, that further proceedings were pursued. The list of the students, who were admitted was submitted by the 2nd respondent Educational Institution, along with the 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 the proceedings of the Committee. The 'NRI' candidates were also given a chance to be present before the Committee [as to be W.P.(C) Nos.39370 of 2016 13 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 the proceedings of the Committee] 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 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 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 application dated 29.04.2015 W.P.(C) Nos.39370 of 2016 14 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.
12. The Management Association representing the petitioners, who had entered into an Agreement with the Government for seat sharing, on the basis of which, Ext.P6 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 W.P.(C) Nos.39370 of 2016 15 Association having admitted students to an extent of 15% in 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 Agencis 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 W.P.(C) Nos.39370 of 2016 16 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 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."
13. 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 W.P.(C) Nos.39370 of 2016 17 not be repeated in future and if repeated again, the Association will not support such Colleges in their future endeavours. Indulgence of the Committee was sought for, 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 W.P.(C) Nos.39370 of 2016 18 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 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.
14. With regard to the alleged lack of power or 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 W.P.(C) Nos.39370 of 2016 19 be worthwhile to make a reference to Section 4; particularly sub-Sections 2, 7 & 8 of Section 4, as extracted below:
"Section 4(2) (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 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 W.P.(C) Nos.39370 of 2016 20 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 Court finds it difficult to agree to the said proposition, by virtue of the specific wording in the statute.
15. The first limb of sub-section 7 of Section 4, with W.P.(C) Nos.39370 of 2016 21 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 respect of any or all seats in a particular College or Institution to be de hors merit and therefore invalid W.P.(C) Nos.39370 of 2016 22 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.
16. Incidentally, it is noted that, Ext.P13 order has 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 W.P.(C) Nos.39370 of 2016 23 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 writ petitions, this Court does not find it necessary to deal with this issue in any manner.
17. The learned Senior Counsel appearing for the petitioner however pointed out that, the application preferred for granting permission to effect admission in the `NRI' Quota and satisfaction of the fee for the year 2015- 2016 was not rejected by the AICTE, nor was the fee returned. In fact, an inspection was conducted by the AICTE and 'Zero Deficiency' was certified, as envisaged in W.P.(C) Nos.39370 of 2016 24 paragraph 14.1 of Chapter II of the Approval Process Handbook issued by the AICTE. A copy of the 'Zero Deficiency Report' issued by the AICTE has been produced as Ext.P41 along with I.A. No.20787 of 2016. In page 8 of Ext.P41, it is clearly stated as; "applied to continue the NRI Quota". Thereafter, two more surprise inspections were conducted by the AICTE, based on some complaints, but no incriminating circumstance was pointed out. Allocation of 15% seats to the 'NRI' students was within the permitted intake capacity of 60 and as such, no interference ought to have been made by the ASC, with regard to the `NRI' students, submits the learned counsel.
18. Some additional documents have been produced along with I.A. No.20331 of 2016, particularly copies of pages 1 and 10 of the application for extension of approval made before the AICTE for the year 2015-2016, as Ext.P33 and copies of e-mails dated 17.08.2016 sent to the 3rd respondent University and also to the 1st respondent ASC as W.P.(C) Nos.39370 of 2016 25 Exts.P34 to P40. Initially, the University did not register the students, but on furnishing the clarifications sought for, registration of the students was effected by the University, with reference to the contents of Ext.P6 G.O. and such other materials. The clarification given and the defects stated as rectified are borne by Exts.P37 and P38, submitted before the University. It was while so, that Ext.P39 notice was issued by the 1st respondent ASC on 28.11.2016, instructing the Principal of the Institution to appear before the Committee on 30.11.2016. The said notice was served only at 6.50pm [as evident from Ext.P39 itself] which came to the hands of the Principal on the next day, pursuant to which, he appeared before the Committee on 30.11.2016 and sought for time to submit a proper reply. The request was rejected and Ext.P32 order came to be passed on that day itself. As such, no proper/adequate/effective opportunity was given to the petitioner. The learned Senior Counsel also made submissions with reference to the W.P.(C) Nos.39370 of 2016 26 provisions contained in the Regulations formulated by the AICTE in terms of Section 23 of the AICTE Act and also as to the contents of the Approval Process Handbook.
19. The assertion made by the learned Senior Counsel for the petitioners is that the petitioner Institution had specifically applied for approval of 'NRI' admission in respect of the previous year, ie., 2015-2016 and that the requisite fee was remitted as per Ext.P1. Since it was never intimated as rejected by the AICTE, they were under the impression that, it had already been permitted. It is pointed out that, since at the time of getting AICTE approval vide Ext.P5 dated 30.04.2016, there was no Government Order permitting admission of 15% NRI students [Ext.P6 G.O. having been passed only on 30.06.2016], the petitioner could not seek approval or remit the requisite fee for the year 2016-2017. It is further stated that, immediately on passing Ext.P6 G.O., the petitioner attempted to effect the payment, but the AICTE portal was closed by that time. The W.P.(C) Nos.39370 of 2016 27 learned Senior counsel added that, if there was any lapse on the part of the petitioner in this regard,it is inadvertant and that the petitioner is entitled to have the benefit of the verdict passed by the Apex Court in SLP No.25021 of 2016 [arising from the judgment of the learned Single Judge of this Court in WP(C) No.21798 of 2016 and the interim order dated 11.08.2016 in WA No.1583 of 2016, of the Division Bench]. In the aforesaid cases, after getting instructions, the learned Standing Counsel appearing for the AICTE submitted before the Apex Court that, it was only a "procedural lapse", which could be rectified by imposing 'fine'. The learned Senior counsel submitted that, the petitioner is also ready to satisfy the requirement, if at all any 'fine' is to be imposed, so that career of the innocent students could be protected. It is also brought to the notice of this Court that, the petitioner Institution, unlike the other Institutions in the Self Financing Sector, is run by a Charitable Trust and that, the annual tuition fee being W.P.(C) Nos.39370 of 2016 28 charged from the students, is only much on the lesser side, [at the rate of Rs.60,000/-].
20. After getting instructions over telephone, the learned Standing Counsel for the AICTE submitted that, the submission made by the learned Senior counsel for the petitioner as to the inspection conducted by the AICTE, who recorded satisfaction of 'zero deficiency' was correct. It was also stated that, there were two complaints [preferred by some former employees of the petitioner Institution] based on which, two surprise inspections were also conducted by the AICTE, but no incriminating circumstances could be detected and that the complaints were dropped. No further proceedings could be pursued, as the last date for granting approval, as specified by the Apex Court in Parshvanath's case [cited supra], was already over.
21. After hearing both the sides, this Court finds that, there was absolutely no fault on the part of the petitioner in making the application or satisfying the requisite fees for W.P.(C) Nos.39370 of 2016 29 getting 'NRI' approval as stipulated in the Approval Process Handbook for the previous year 2015-2016. In view of the admission made by the AICTE that, inspection was conducted and 'zero deficiency' was recorded and no incriminating circumstances were brought to light despite the two surprise inspections based on the complaints as aforesaid, the petitioner Institution was entitled to have approval for the year 2015-2016 and as a natural consequence, it was open for the petitioner to have sought for extension of approval, on satisfaction of the requisite fee for the current year [2016-2017] as well. The AICTE has no case that, the fate of the application for approval of 'NRI' admission of 2015-2016, after conducting inspection and recording 'zero deficiency', was ever communicated to the petitioner. Since, the application was not rejected, and since the requirements under paragraph 14.1 of Chapter II of the Approval Process Handbook were admittedly satisfied, it ought to have been allowed. This being the position, the W.P.(C) Nos.39370 of 2016 30 lapse is evidently more on the part of the AICTE, than on the shoulders of the petitioners. In the said circumstances, this Court finds it fit and proper to order that, an opportunity be given to the petitioner Institution to cure the defect/procedural lapse in respect of the year '2016-2017' by causing payment of fine, if any, to be stipulated by the AICTE, satisfying the prescribed fee as well.
22. The learned Standing Counsel for the AICTE submits that, a formal application is to be submitted, upon which, a similar treatment as given to the petitioners in SLP No.25021 of 2016 could be extended to the petitioner as well; however adding that the maximum NRI quota can only be 5% and that the stipulation in Ext.P6 GO dated 30.06.2016, showing it as 15%, cannot have any effect, in so far as AICTE is concerned. The stipulation made by the AICTE, which is constituted as per the Parliamentary legislation will prevail over the conflict, if at all any, with respect to the State Legislation or any Executive Orders W.P.(C) Nos.39370 of 2016 31 issued in this regard. That apart, even in the case dealt with by the Supreme Court in SLP No.25021 of 2016 [arising from the verdict passed by the Single Bench of this Court in WP(C) No.21798 of 2016 and the interim order, staying the same, passed by the Division Bench of this Court in WA No.1583 of 2016], the Apex Court permitted regularisation of NRI admissions only to an extent of 5%.
23. In the said circumstance, the petitioner Institution is set at liberty to make an application for approval/ regularisation of the NRI admissions for the year 2016- 2017 before the AICTE, confining it to an extent of 5%, strictly based on the merit level of the candidates already admitted and to satisfy the balance fees, if any, along with 'fine' to be stipulated by the AICTE, for the procedural lapse. Subject to this, the respondent University is directed to pass appropriate orders for granting approval and regularising the admission to the said extent. Regarding the remaining candidates admitted in the NRI W.P.(C) Nos.39370 of 2016 32 segment, it is open for the petitioner Institution to consider whether they will come within the purview of "Persons of Indian Origin" as dealt with under paragraph 13 of the Approval Process Handbook and if so, an application could be made to the AICTE for approval of the said candidates as well. On such an event, the said application shall be considered and appropriate orders shall be passed in accordance with law, taking note of the particular facts and circumstances as discussed above. The AICTE is free to realise the deficit fees, if any, and 'fine' to the requisite extent. Based on the orders to be passed as aforesaid, further proceedings shall be taken by the Technological University to finalise the registration of the admitted students and weed out the ineligible hands, if any. Necessary applications in this regard shall be submitted by the petitioner Institution within 'ten days' from the date of receipt of a copy of this judgment; upon which, the proceedings shall be finalsied by the AICTE within 'one W.P.(C) Nos.39370 of 2016 33 month' thereafter. The University shall finalise the proceedings based on the orders to be passed by the AICTE as above within 'two weeks' from the date of passing the Order by the AICTE. Ext.P32 order passed by the 1st respondent Committee will stand modified to the said extent.
The writ petition stands disposed of.
P.R. RAMACHANDRA MENON, P.SOMARAJAN, JUDGE.
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