Kerala High Court
The Chairman vs State Of Kerala on 15 March, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939
WP(C).No. 22511 of 2016 (L)
-------------------------------------------
PETITIONER(S) :
-------------------------
THE CHAIRMAN,
SCMS COLLEGE OF POLYTECHNICS, SCMS CAMPUS,
PRATHAP NAGAR, MUTTOM, ALUVA-683 106.
BY SRI.KURIAN GEORGE KANNANTHANAM (SENIOR ADVOCATE)
ADVS. SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
RESPONDENT(S) :
-----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HIGHER EDUCATION DEPARTMENT,
SECRETARIATANNEX, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF TECHNICAL EDUCATION
TRIVANDRUM-695 023.
BY SPL. GOVERNMENT PLEADER SRI. VIJAYAMOHAN P.K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-05-2017, ALONG WITH W.P(C).NO. 26277 OF 2016 AND
CONNECTED CASES, THE COURT ON 05-06-2017 DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 22511 of 2016 (L)
-----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 15.03.2016 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 30.04.2016 ISSUED BY
THE ACICTE.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 09.05.2016 FROM
THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 10.05.2016 ISSUED FROM
THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 10.06.2016 FROM
THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 15.06.2016 FROM
THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 14.06.2016 IN
W.P(C).NO. 20014/16 OF THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 29.04.2016 ISSUED FROM
THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE AGREEMENT DATED 18.05.2016 EXECUTED
BY THE EDUCATIONAL AGENCY AND GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE LIST OF STUDENTS OF SCMS COLLEGE OF
POLYTECHNICS.
EXHIBIT P11 TRUE COPY OF THE CHALAN RECEIPT DATED 05.10.2016.
EXHIBIT P12 TRUE COPY OF THE COVERING LETTER DATED 06.10.2016 OF
THE PETITIONER.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 19.10.2016 TO
THE PETITIONER.
EXHIBIT P14 TRUE COPY OF THE NOTIFICATION DATED 09.09.2016 OF
THE CONTROLLER OF TECHNICAL EXAMINATIONS.
EXHIBIT P15 TRUE COPY OF THE NOTIFICATION DATED 18.01.2017
THE JOINT CONTROLLER OF TECHNICAL EXAMINATIONS.
EXHIBIT P16 TRUE COPY OF THE NOTIFICATION DATED 02.03.2017 ISSUED BY
THE CONTROLLER OF TECHNICAL EXAMINATIONS.
WP(C).No. 22511 of 2016 (L)
-----------------------------------------
EXHIBIT P17 TRUE COPY OF THE 1ST TWO PAGES OF PROSPECTUS FOR
ADMISSION TO POLYTECHNICS 2017-2018 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE ANNEXURE-I OF THE PROSPECTUS.
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.S.TOJUDGE.
Msd.
C.R.
P.B.SURESH KUMAR, J.
-----------------------------------------------
W.P.(C) Nos.22511 & 26277 of 2016
and
W.P.(C) Nos.9371, 17190, 17256, 17366
& 17777 of 2017
-----------------------------------------------
Dated 5th June, 2017.
J U D G M E N T
These writ petitions relate to admission of students to the Polytechnic colleges of the petitioners for the academic year 2017-'18.
2. The petitioners have established Polytechnic colleges in the State and obtained approval of the All India Council for Technical Education (the AICTE) constituted under the All India Council for Technical Education Act ('the Act') for starting the same. The letters of approval issued to the petitioners by the AICTE provide, among others, that the petitioners shall obtain necessary approval from the concerned Board of Technical Education. Such a condition is imposed by the AICTE while granting approval to start Polytechnic colleges WPC No.22511 of 2016 & con. cases 2 as the examinations of the students admitted in Polytechnic colleges are conducted by the concerned Boards of Technical Education in the respective States. As far as the State of Kerala is concerned, there is no Board of Technical Education and the State Government is conducting the examinations through its Director of Technical Education. The admission of students to Polytechnic colleges in the State is also regulated by the State Government based on merit and in accordance with the principles of reservation through a centralised allotment process. The students who secure admission through the said allotment process are liable to pay only the fees prescribed by the Government in this regard. As far as the Polytechnic colleges in the self financing sector which have been approved by the State are concerned, 50% of their seats are being filled up by the State Government through the allotment process referred to above, after arriving at necessary consensus with the said Polytechnic colleges.
3. The petitioner in W.P.(C) No.22511 of 2016 has secured the approval of the AICTE to start a Polytechnic college WPC No.22511 of 2016 & con. cases 3 in the State in the academic year 2016-'17. Their case in the writ petition is that despite the positive recommendation made on their application for approval by the Director of Technical Education, the Government is yet to grant the approval sought by them. They have, therefore, approached this Court in the said writ petition for appropriate directions to the State Government to grant the approval sought by them. On 08.07.2016, this Court passed an interim order directing the State Government to allot students under the centralised allotment process to the Polytechnic college of the petitioner, provided they are prepared to accept the fee structure prescribed by the State Government and willing to enter into necessary agreement with the State Government for seat sharing. The said interim order was later modified on 04.04.2016, permitting the petitioner to admit students, as it was found that the State Government has not complied with the interim order dated 08.07.2016. On the strength of the said interim order, the petitioner has admitted students in their Polytechnic college in the academic year 2016-17 and later, as WPC No.22511 of 2016 & con. cases 4 per the interim order dated 09.11.2016, this Court has also permitted the students admitted in their Polytechnic colleges to participate in the examinations conducted by the State Government. The name of the Polytechnic college of the petitioner has not been included in the prospectus issued by the State Government inviting applications for admission of students in the Polytechnic colleges in the State for the academic year 2017-18. According to the petitioner, the said conduct on the part of the State Government would not only deprive an opportunity for the students who are aspiring for admission in the Polytechnic college of the petitioner to undertake their course in that college, but would also create a cloud in the mind of such students as to the legitimacy of the institution of the petitioner. The petitioner, therefore, preferred I.A.No.7652 of 2016 seeking directions to the respondents to consider their institution also for the centralised allotment of students and allot students to their Polytechnic college, if there are students who are willing to undertake courses in their college. It is indicated by the petitioner in their WPC No.22511 of 2016 & con. cases 5 pleadings that they have no objection in the State Government allotting 50% of the seats in their institution to students who are opting to undertake Polytechnic course in their institution on the fee structure prescribed by the Government.
4. Petitioners in W.P.(C).Nos.17256, 17366 and 17777 of 2017 are institutions who have secured approval of the AICTE to start Polytechnic colleges in the State during the academic year 2017-18. The State Government has not granted approval to the Polytechnic colleges of the said petitioners also. According to them, in so far as they have been granted approval to start Polytechnic colleges in the State by the AICTE, the State Government is bound to grant approval to their institutions. As far as W.P.(C).Nos.17366 and 17777 of 2017 are concerned, the applications preferred by the petitioners for approval of the State Government are yet to be considered and as far as W.P.(C) No.17256 of 2017 is concerned, the application preferred by the petitioner for approval has been rejected by the State Government. Ext.P11 in the said writ petition is the order issued by the State WPC No.22511 of 2016 & con. cases 6 Government in this connection. The stand taken by the State Government in the said order is that the State Government does not feel that there is any appreciable increase in scope for Polytechnic education in the State especially in the self financing sector and that the indiscriminate sanctioning of new self financing institutions would lead to a downward trend in the quality of education in the State. Since the institutions of the petitioners in the said three writ petitions are not included in the prospectus published by the State Government for the centralised allotment of students for the current year, all of them seek directions to the respondents to consider their institutions also for centralised allotment of students to Polytechnics during the current year and allot students to their Polytechnic colleges, if there are students who are willing to undertake courses in their respective colleges. These petitioners have also indicated in their pleadings that they have no objection in the State Government allotting 50% of the seats in their institutions to students who opt to undertake Polytechnic courses in their institutions on the fee structure WPC No.22511 of 2016 & con. cases 7 prescribed by the Government.
5. W.P.(C).Nos.26277 of 2016, 9371 of 2017 and 17190 of 2017 are writ petitions instituted by one and the same petitioner. The petitioner in the said cases is an existing Polytechnic approved by the State Government. During 2016, they have obtained approval from the AICTE for conducting an additional course also in their Polytechnic, viz, Diploma in Automobile Engineering. They have not been granted approval by the State Government for the said additional course. They have, therefore, filed W.P.(C).No.26277 of 2016 seeking directions to the State Government to approve the said additional course in their institution. It is seen that by virtue of the interim order passed by this Court in the said writ petition on 10.11.2016, the students admitted for the said course were permitted to undertake the examination conducted by the State Government provisionally. During the pendency of the said writ petition, the application preferred by the petitioner for approval of the State Government for the additional course sanctioned has been declined on the ground that the policy of WPC No.22511 of 2016 & con. cases 8 the State Government is not to grant approval for any self financing institution or course in the State. W.P.(C).No.9371 of 2017 is one instituted by the petitioner challenging the said decision of the State Government. W.P.(C).No.17190 of 2017 is filed by the petitioner later when the prospectus for the centralised allotment of the students for the year 2017-18 has been issued by the State Government without mentioning the additional course approved by the AICTE. The prayer in the said writ petition is for a direction to the respondents to notify the said additional course also for the centralised allotment of students for the current year.
6. A common counter affidavit has been filed on behalf of the State Government in W.P.(C).Nos.22511 of 2016, 17190 of 2017, 17256 of 2017 and 17366 of 2017. It is contended by the State Government in the counter affidavit that the petitioners are not entitled to the approval of the State Government for their institutions merely on the strength of the approval of the AICTE secured by them. In addition to the stand taken by the State Government in the orders rejecting the WPC No.22511 of 2016 & con. cases 9 applications preferred by the petitioners for approval to start Polytechnic colleges in the State which are impugned in the writ petitions, it is contended by the State Government in the counter affidavit that while granting letter of approval, the AICTE would consider only the infrastructure facilities being provided by the self financing colleges and not the demand for such courses in the area, overall quality of the technical education in the State, employability of successful candidates etc, which are taken into account by the State Government while granting approval to technical education institutions. It is also contended by the State Government that the State Government does not feel that there is an appreciable increase in the scope of Polytechnic education in the State, especially in the self financing sector.
7. Heard the learned Senior Counsel for the petitioners in W.P.(C).No.22511 of 2016 and 17777 of 2017, the learned counsel for the petitioners in the remaining writ petitions as also the learned Special Government Pleader.
8. The authority of the AICTE to grant approval to WPC No.22511 of 2016 & con. cases 10 start a new technical institution or to introduce new courses or programmes in the existing technical institutions is not disputed by the State Government. The contention of the State Government is only that the approval of the State Government is also required for starting new technical institutions and for introducing new courses or programmes in the existing technical institutions. Although there is no statutory or executive compulsion for the technical institutions to obtain the approval of the State Government to start a college/course, since the State Government is the examining authority of the students admitted to Polytechnic colleges and since the letters of approvals secured by the institutions from the AICTE to start Polytechnic colleges/courses contain a specific stipulation that the institutions have to secure the approval of the concerned Technical Education Board, the petitioners do not dispute their obligation to obtain the approval of the State Government for starting the Polytechnic College and also for starting additional courses in the existing colleges on the strength of the approval obtained from the AICTE. The contention of the petitioners is WPC No.22511 of 2016 & con. cases 11 only that the State Government cannot decline the approval sought by them on the grounds mentioned in the impugned orders as also in the counter affidavit filed in these matters. The question arises for consideration, therefore, is as to the scope of the power of the State Government in the matter of dealing with the applications for grant of approval to start technical institutions/additional courses in the existing technical institutions on the strength of the letters of approval obtained from the AICTE.
9. In order to understand the scope of the power of the State Government in the matter dealing with the applications for grant of approval, it is necessary to refer to the object of the Act as also the relevant provisions therein. It is seen from the preamble of the Act that the Act was introduced to establish an All India Council for Technical Education for the proper planning and co-ordinated development of the technical education system throughout the country; the promotion of qualitative improvement of such education in relation to planned quantitative growth; the regulation and proper WPC No.22511 of 2016 & con. cases 12 maintenance of norms and standards in the technical education system and for matters connected therewith. Section 10 of the Act provides that it shall be the duty of the Council constituted under the Act viz, the AICTE to take all steps as the said Council might think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. It is also provided in the said Section that for the purposes of performing its functions under the Act, the Council may, among others, undertake survey in various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; co-ordinate the development of technical education in the country at all levels; promote innovations, research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes; formulate schemes for promoting technical education for women, handicapped and weaker sections of the society; promote an WPC No.22511 of 2016 & con. cases 13 effective link between technical education system and other relevant systems including research and development organisations, industry and the community; evolve suitable performance appraisal systems for technical institutions and universities imparting technical education, incorporating norms and mechanisms for enforcing accountability; lay down norms and standards for courses, curricula, physical and instuctional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; fix norms and guidelines for charging tuition and other fees, grant approval for staring new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned and take necessary steps to prevent commercialization of technical education. Though at the cost of repetition, Section 10 of the Act needs to be extracted :
10. Functions of the Council :
It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes for performing its functions under this Act, the Council may-
WPC No.22511 of 2016 & con. cases 14
(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;
(b) coordinate the development of technical education in the country at all levels;
(c) allocate and disburse out of the Fund of the Council such grant on such terms and conditions as it may think fit to-
(i) technical institutions, and
(ii) Universities imparting technical education in coordination with the Commission;
(d) promote innovations, research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for over-all improvement of education processes;
(e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;
(f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community;
(g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;
(h) formulate schemes for the initial and in-service training of teachers and identify institution or centres and set up new centres for offering staff development programmes including continuing education of teachers;
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;
(j) fix norms and guidelines for charging tuition and other fees; WPC No.22511 of 2016 & con. cases 15
(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;
(l) advise the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examinations and awarding of membership certificates;
(m) lay down norms for granting autonomy to technical institutions;
(n) take all necessary steps to prevent commercialisation of technical education;
(o) provide guidelines for admission of students to technical institutions and Universities imparting technical education;
(p) inspect or cause to inspect any technical institution;
(q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council;
(r) take steps to strengthen the existing organisations and to set up new organisations to ensure effective discharge of the Council's responsibilities and to create position of professional, technical and supporting staff based on requirements;
(s) declare technical institutions at various levels and types offering courses in technical education fit to receive grants;
(t) advise the Commission for declaring any institution imparting technical education as deemed University;
(u) set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of WPC No.22511 of 2016 & con. cases 16 guidelines, norms and standards specified by it and to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de-recognition of the Institution or the programme;
(v) perform such other functions as may be prescribed."
10. The procedure for grant of approval to start Technical Institutions is prescribed by the AICTE in the Regulation framed by them under Section 23(1) of the Act viz, All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2012 (the Regulations). The Approval Process Hand Book issued by the AICTE requires the applicants for grant of approval to start technical institutions, to submit copies of the applications to the State Government also, so as to enable the State Government to forward their views in the matter to the AICTE. The Approval Process Hand Book of the AICTE also prescribes the time frame within which the views of the State Government on the applications for grant of approval are to be forwarded to the AICTE. The Regulations provide that if the views of the State Government are received on time, the same shall be considered by the Regional Committee of the WPC No.22511 of 2016 & con. cases 17 AICTE. Regulation 4 of the Regulations clarifies that if the views of the State Government are not received within the time limit prescribed, the AICTE will proceed with the process of the application for approval. In other words, though the authority to grant approval to start a technical institution or start a new course in an existing technical institution is vested with the AICTE in terms of the Act, the scheme of the Act mandates that if the State Government has any objection against the establishment of any technical institution in the State, the same shall be considered by the AICTE while taking a decision on the application for approval. It is thus clear that the scheme of the Act is that the State Government has to bring all objections in relation to matters which would fall within the scope of the Act and the functions of the AICTE, to the notice of the AICTE and it is for the AICTE is to take a decision as regards the said objections. When the scheme of the statute is that the objections that would fall generally within the scope of the authority of the AICTE as defined under the Act could be raised by the State Government before the AICTE, there is no difficulty WPC No.22511 of 2016 & con. cases 18 in arriving at a conclusion that such objections cannot be the basis for declining approval by the State Government, for , if such objections can be basis for declining approval by the State Government for technical institutions who have secured the approval of the AICTE, the State Government would be frustrating the provisions of the Act.
11. In this context, it is relevant to note that the Act is a legislation referable to Entry 66 of List I. But, eduction including technical education, medical education and universities are subjects falling under Entry 25 of List III of the Seventh Schedule to the Constitution. The said Entry reads thus:
"25. Education, including technical education, medical education and universities, subject to the provisions of entries in 63, 64, 65 and 66 of List I; vocational and technical training of labour".
Since Entry 25 refers to Entries 63, 64, 65 and 66 of List I of the Seventh Schedule, it is necessary to refer to the said Entries as well, for the purpose of understanding the scope of Entry 25. Entries 63, 64, 65 and 66 of list I of the Seventh Schedule to the WPC No.22511 of 2016 & con. cases 19 Constitution read thus :
"63. The institutions known at the commencement of this constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University; the University established in pursuance of Article 371-E; any other institution declared by Parliament by law to be an institution of national importance.
64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.
65. Union agencies and institutions for-
(a) professional, vocational or technical training, including the training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or detection of crime.
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
In the light of Entry 25 of List I, there will not be any difficulty for the State Government to regulate the functioning of the technical institutions in the State by appropriate legislation which would not be repugnant to the legislations coming under Entries 63, 64, 65 and 66 of List I of the Seventh Schedule as the power to make laws under the said Entries is the prerogative of the Central Government. Further, the State WPC No.22511 of 2016 & con. cases 20 Government can also regulate the functioning of the technical institutions in the State by executive orders. But, the limitation for such executive action would be that the same shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by the Parliament upon the union or authorities thereof, as provided for under article 162 of the Constitution. It needs to be clarified again in this context that AICTE being an authority constituted under a law made by the Parliament, the executive action of the State Government is limited and subject to the actions, if any, taken by the AICTE.
12. Now, I shall deal with the contentions raised by the State Government in the impugned orders as also in the counter affidavit filed in these matters to support the impugned orders. The reasons given by the State Government in the order rejecting the application for approval submitted by the petitioner in W.P.(C) No.17256 of 2017 are that the State Government does not feel that there is any appreciable increase in the scope for Polytechnic education in the State, WPC No.22511 of 2016 & con. cases 21 especially in the self financing sector and that the indiscriminate sanctioning of new self financing institutions would lead to a downward trend in the quality of education in the State. As far as the scope of polytechnic education is concerned, at the outset, it has to be pointed out that its scope has to be examined in the context of the requirements of the country as a whole. It is so, as large number of students aspiring admission to Polytechnic courses would be desirous of seeking employment elsewhere in the State, especially when there cannot be any dispute to the fact that a substantial number among the technocrats working elsewhere are from our State. As such, even if there is no appreciable increase in the scope for polytechnic education in the State, if there is enough scope for such education elsewhere in the country, it will be very difficult for a Court to accept such a stand for declining permission to start a polytechnic. Further, it is seen that the Central Government is attributing much importance to the polytechnic education for skill development and has plans even to provide financial assistance to State Governments for setting WPC No.22511 of 2016 & con. cases 22 up of new polytechnics, of course in unserved and under served districts. Ext.P16 in W.P.(C) No.17256 of 2017 is one of such schemes of the Central Government for promoting polytechnic education. The importance of polytechnic education as illustrated in Ext.P16 scheme reads thus;
"1.2 Importance of Polytechnic Education The Mission's basic objective is to create a trained Skilled Manpower of atleast 500 million persons by 2020. To translate the mission objective into action, several new initiatives are to be taken by various key Ministries. New Schemes orienting to Skill Development are to be launched. The existing capacity for training manpower is to be expanded many fold. This will include opening of new Industrial Training Institutes (ITIs) and Polytechnics., new Vocational Schools and Skill Development Centers. Through this, it is to ensure that annually over 100 lakh students get vocational training, which is a four-fold increase from today's level. Towards this, the active help of the private sector is also planned in a big way so that they do not only assist in the training but also lend a hand in providing employment opportunities".
Technical Education is instrumental in making a remarkable contribution to economic growth of the Developing Countries by way of suitable manpower production according to the needs of the Industry, Society and the Global World as a whole. To produce contemporary skilled manpower & technocrats suited to the present era of science and technology is the need of the hour. WPC No.22511 of 2016 & con. cases 23 Polytechnic education has therefore responded to the challenges of industrialization for self-reliance, as well as meeting international demands.
The aim of the polytechnic education is to create a pool of skill based manpower to support shop floor and field operations as a middle level link between technicians and engineers. The pass- outs of Diploma level Institutions in Engineering & Technology play an important role in managing shop-floor operations. It is further an established fact that small & medium Industry prefer to employ Diploma Holders because of their special skills in interpreting engineering, drawings, estimating, costing, billing, supervision, measurement, testing, repair & maintenance etc." In the light of Ext.P16, I do not think that the stand aforesaid is one taken after evaluating the relevant materials. Further, going by the scheme of the Act, the scope of the polytechnic education is something which the AICTE has to take note of while considering the application for grant of approval. In so far as approval has already been granted to the petitioner therein, it has to be presumed that the approval has been granted having regard to the scope of polytechnic education in the country. As such, the State Government cannot defeat the said decision of the AICTE by declining approval to start the WPC No.22511 of 2016 & con. cases 24 Polytechnic colleges in the State. Further, the materials on record indicate that the State Government themselves have applied to the AICTE for grant of approval to start polytechnic colleges in the State. When the State Government themselves apply for grant of approval to establish polytechnic colleges in the State, they cannot be heard to contend that there is no scope for Polytechnic education in the State. The view of the State Government that there is no scope for Polytechnic education in the State in the self financing sector also cannot be accepted, for, if there is scope for Polytechnic education in the State and if the State Government cannot establish enough polytechnic colleges in the State, there is no answer to the doubt as to why permission should be declined to establish Polytechnic colleges in the self financing sector, especially when the same does not involve any expenditure on the part of the Government. In short, the stand that there is no appreciable increase in the scope of Polytechnic education in the State and therefore, there is no need for any further institution in the State is arbitrary, unreasonable and against WPC No.22511 of 2016 & con. cases 25 public interest.
13. Another reason stated in the order impugned in W.P.(C) No.17256 of 2017 is that indiscriminate sanctioning of new self financing institutions would lead to a downward trend in the quality of education in the State. There cannot be any dispute to this proposition. As noted above, the State Government has all the power to take appropriate action either by legislation or by executive action to improve the quality of education in the State including the quality of education in the polytechnics. Inability on the part of the State Government to do so shall not be a reason for declining approval to establish educational institutions in the State, for, it is like burning the house to fright away the mouse. It is all the more so, as such a stand would only compel students who are aspiring admission in technical institutions to leave the State for pursuing their education. It is relevant in this context to refer to Ext.P13 in W.P.(C) No.17256 of 2017. It is an information furnished under the Right to Information Act by the State Technical Teachers Training Institute. It is stated therein that there were altogether WPC No.22511 of 2016 & con. cases 26 1,55,235 applicants for admission to Polytechnic courses in the State during the previous year and the State Government could provide admission only to 10,977 candidates among them in the State-owned Polytechnic colleges as also in the Polytechnic colleges in the self financing sector. In other words, the State could not even provide admission to at least 10% of the aspirants for admission. If this is the state of affairs prevailing, the decision of the State Government not to have any more technical institutions in the self financing sector can be accepted only as an arbitrary decision, especially when the State has no plans to establish sufficient number of technical institutions with State funds.
14. The reason for declining the approval sought by the petitioner in W.P.(C).Nos.26277 of 2016, 9371 of 2017 and 17190 of 2017 is that the policy of the Government is against establishing educational institutions in the self financing sector and additional courses in the existing self financing colleges. It is seen that the order issued by the State Government declaring the said policy has been interfered with by this Court W.P.(C) WPC No.22511 of 2016 & con. cases 27 No.24872 of 2016 and connected cases. True, it is made clear in the judgment that the said judgment will not preclude the State Government from objecting the establishment of an institution for reasons attributable to it. The State has no case that the petitioners in these writ petitions are not entitled to the approval sought by them for any reason peculiar or applicable to them. As such, in the light of the judgement of this Court in W.P.(C) No.24872 of 2016 and connected cases, the said stand of the State also cannot be accepted.
15. Coming to the contentions raised in the counter referred filed in these matters, the main contention is that the AICTE would consider only the infrastructure facilities being provided by the self financing colleges and not the demand for such courses in the area, overall quality of the technical education in the State, employability of successful candidates etc., which are taken into account by the State Government while granting approval to technical education institutions. Going by the scheme of the Act and the functions of AICTE, I do not agree with the stand taken by the State Government that WPC No.22511 of 2016 & con. cases 28 the function of the AICTE is only to see whether there is enough infrastructure in the technical institutions concerned. I have already indicated that the State Government can certainly regulate the quality of technical education by appropriate legislation or by executive order. The provisions in the Act, especially the functions of the AICTE as contained in the various clauses of Section 10, indicate beyond doubt that demand for technical education in the State, employability of successful candidates etc. are matters which are liable to be reckoned by the AICTE while granting approval. As indicated above, the State Government has an opportunity to raise its objections before the AICTE and the AICTE is bound to consider the objections of the State Government while taking decision on the applications for grant of approval. If in a given case the State does not submit their views before the AICTE at the appropriate time, the same cannot be a ground to decline approval to start the institutions after the AICTE grants approval to the institution. Identical view has been taken by the Apex Court in Jaya Gokul Educational Trust v. Commissioner & WPC No.22511 of 2016 & con. cases 29 Secretary to Government (2000 (2) KLT 267), in the context of engineering colleges, of course in the background of 1994 approval regulations issued by the AICTE. Paragraph 26 of the said judgement reads thus :
"26. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE's approval dated 30.4.95 showed that the approval had been given by the State Level Committee of which they were obviously members. It is, therefore, not understandable how the Director had given a contrary opinion to the State Government. Regulation 8(4) of AICTE only required calling for the "comments/recommendations" of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force and was to make a final recommendation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council WPC No.22511 of 2016 & con. cases 30 under the AICTE Act or before the Committees, eg. State Level Committee etc." (emphasis supplied) The said contention of the State Government as aforesaid also therefore, cannot be accepted as a ground to decline approval to technical institutions which have secured the approval of the AICTE. True, if any fresh facts come to light after the approval was granted by the AICTE or if the State feels that some conditions attached to the permission are not being complied with by the institution, it will be open to the State Government to bring the said facts to the notice of the AICTE for appropriate action.
16. For the aforesaid reasons, the petitioners are entitled to succeed and their institutions are liable to be approved by the State Government. It is seen that the State Government has already issued the prospectus for admission for the current year and applications have been received for admission. As such, it is not possible to direct the State Government to revise the prospectus. In the circumstances, I WPC No.22511 of 2016 & con. cases 31 am of the view that appropriate direction can be issued to the State Government to include the names of the institutions of the petitioners also in the online platform so that candidates would get an opportunity to opt for admission in their respective colleges also. Of course, as conceded by the petitioners, the State Government is free to allot 50% of the seats in these colleges also through the centralised allotment process to students who are willing to undertake the courses in the colleges of the petitioners on the fee structure prescribed by the Government.
In the result, the writ petitions are allowed and the respondents are directed to accord sanction to the petitioners to start the Polytechnic colleges/course forthwith. The respondents shall also include the names of their institutions/course in the online platform, so that candidates would get an opportunity to opt for admission in their respective colleges as well. It is also directed that allotment shall not be made for admission without complying with the aforesaid directions, and the dates fixed as per the prospectus WPC No.22511 of 2016 & con. cases 32 for the various activities shall be postponed, if necessary, to comply with the said directions with notice to the students/applicants.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)