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Judgment
K.M. Joseph, J.—W.P.C. No. 34284/2010 is filed by the Manager and the Principal of an unaided college. W.P.C No. 16612/2011 is filed by the Manager of the very same college. In both these cases the issue relates to starting of additional Courses in the petitioner''s college. In W.P.C.No. 16612/2011 the additional Courses are MA (English), B.C.A and B.Com (Finance). In W.P.C.No. 34284/2010 the additional Courses are M.B.A., M.Com (Finance) and B.B.A (CCSS). The petitioners approached the respondent University and the respondent University has recommended for the Courses. The petitioners have approached this court seeking the following reliefs : In W.P.C.No. 16612/2011 the prayers are as follows :
a. Issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the 3rd respondent to grant provisional affiliation to the Courses applied for as per Exts. P1 and P2 without waiting for the NOC from the State Government;
b. declare that the NOC from the State Government is not required for starting additional Courses in the existing Self Financing Arts and Science Colleges and that the University is bound to grant provisional affiliation forthwith.
In W.P.C.No. 34284/2010, the prayers are as follows :
a. issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the first respondent to consider the recommendations of the University and grant NOC to the petitioners so as to enable them to start the Courses applied for in Exts. P1 and P2 forthwith;
b. issue a direction to the 3rd respondent to grant provisional affiliation to the Courses applied for as per Exts. P1 and P2 without waiting for the NOC from the State Government.
The petitioners would claim that it is a minority institution. In W.P.C. No. 34284/2010 the petitioners filed Exts. P1 and P2 applications for additional affiliation for the Courses which are mentioned therein. Exts. P3 and P4 evidenced that there was an inspection. Ext. P5 is the communication of University to the Principal of the college indicating that additional Course has been recommended for MBA. Ext. P6 likewise would show that affiliation has been recommended to the Director of Collegeate Education for BBA (40 seats) and M.Com (20 seats).
In W.P.C. No. 16166/2011 the petitioner filed an application for additional affiliation of MA (English), BCA and B.Com (Finance) during the year 2011-2012. There was inspection. By Ext. P2, the University had informed the Principal of the college that it has recommended the application of the petitioner for M.A English (15 seats) and BCA (25 seats). Ext. P3 is the circular dated 25.07.2008 issued by the Government of Kerala.
We heard the learned counsel for the petitioner, the learned counsel appearing for the University and also the learned Government Pleader.
The case of the petitioner would appear to be that the petitioner does not have to seek NOC of the Government in terms of the circular produced as Ext. P3 in W.P.C. No. 16612/2011. According to the petitioner, Ext. P3 relates to Courses of a technical nature. In respect of technical Courses, it is submitted by the learned counsel for the petitioner that, no doubt, affiliation from the AICTE may be necessary. He would submit that as far as MBA is concerned, it may be covered by the AICTE Act and the petitioner is not pressing for any relief in respect of the MBA Course. But as far as the other Courses are concerned, he would submit that it relates to Arts and Science Colleges. They are not technical Courses. Once the University has recommended, nothing more is required.
The learned counsel also draws our attention to Ext. P12. It purports to be an order passed by the university of Calicut, apparently on the strength of an order passed by this Court. Per contra, the learned Government Pleader would submit that NOC of the Government is required in terms of Ext. P3, and also Ext. P4 which was produced under a Memo. The learned counsel for the university would submit that the recommendations made by the university can be treated as approval of the university for starting the Course. Ext. P3, according to which the learned counsel for the petitioner would argue that no NOC is required, inter alia, reads as follows :
Several Self-financing Institutions have approached Government for obtaining approval for new colleges/ new courses in the existing colleges/ incease in the intake in existing courses. There is a considerable ambiguity in the department as to the procedure to be adopted in giving sanction to these institutions. Hence the following procedures have to be strictly followed for approval of new colleges/ new Ccourses in the existing colleges/ increasing the intake under Self-financing Institutions.
(1) When an application form is received for new Engineering College/ new Course in the existing Engineering College/ increase in the intake in existing Engineering College, the management should be advised that they have to seek both University and AICTE approval.
In the case of Training Colleges the management will be advised to seek the approval of the University and NCTE.
In the case of Arts & Science Colleges the management will be advised to seek the approval of concerned University.
(2) Once AICTE/NCTE approval and University approbal (as relevant) are received copy of format of the appropriate agreement should be given to the party. The Agreement must be in Stamp Paper worth
Rs. 50/- and in the prescribed format as vetted by Law Department. This agreement should be executed before the Principal Secretary (Higher Education Department) on proper identification of the party attested by two witnesses whose identification shall also be verified.
If a management approaches Government after obtaining all necessary approvals (University/ AICTE/ NCTE as the case may be) then the agreement may be executed as specified herein.
(3) On the side of Gvernment the Joint Secretary/ Deputy Secretary/ Under Secretary/ Section Officer shall sign the agreement as witness.
(4) After executing the agreement Government will issue order according NOC with all conditions in the agreement incorporated in the Government Order. Before issuing NOC the orders of the Minister (Eucation) should be obtained.
(5) Each case should be dealt separately
(6) The Government Order will be published in Official Gazette.
(7) In order for ensuring the compliance with the terms of agreement an Education Department or his representative from Higher Education Department is the Convener of the Monitoring Committee. Concerned Officer who is in charge of the stream (not below the rank of Under Secretary) is to be nominated for this purpose from Government side. Director of Technical Education/ Director of Collegiate Education will nominate an Officer not below the rank of Deputy Director as a member of Monitoring Committee. Representative of the University concerned are to be decided by the Vice-Chancellor. The Monitoring Committee will inspect all institutions which have been granted NOC by Govrnment this year. NOC will be renewed only after receipt of the report of the Monitoring Committee. A permanent Register will be maintained by the concerned department incorporating all the details contained in the proposal. The remarks of Monitoring Committee as regards compliance of the conditions in the agreement must be entered in the register.
Ext. P4 which is dated 03.03.2008 (produced under Memo) was issued prior to Ext. P3. The Government has indicated under paragraph 5 in Ext. P4 that an undertaking in respect of matters which are indicated thereunder should be submited by the Management as a condition for granting NOC for new unaided colleges/ courses.
When we consider Ext. P3 we are of the view that it may not be correct for the petitioner to contend that in the Courses of Arts and Science Colleges, no NOC from the Government is required in terms of Ext. P3. In Ext. P3, the Government has provided for streamlining the procedures to be followed for approval of new colleges/ new Courses in the existing colleges and increasing the intake in the existing Courses under self financing institutions. Under Clause I as far as Engineering Colleges are concerned, no doubt, the Government is to advise the Management that they have to seek both the University and the AICTE approval. In respect of training colleges, management will be advised to seek approval of the university and the NCTE. As far as the Arts and Science Colleges are concerned, the Management will be advised to seek approval of the concerned university. Thereafter Ext. P3 provides that once AICTE/NCTE approval and University approval (as relevant) are received, a copy of the format of the appropriate agreement should be given to the party. The agreement is to be executed in the manner provided in the Clause and Ext. P3 mandates that after executing agreement the Government will issue an order, according NOC with all the conditions in the agreement incorporated in the Government Order. We may now revert back to Ext. P2 in W.P.(C) No. 16612/2011. In the so called recommendation issued by the university it is indicated that the petitioner is requested to obtain administrative sanction and NOC from the State, inter alia for taking further action. Thus reading Ext. P3 along with recommendations of the university it is crystal clear that there is no merit in the argument of the petitioner that Ext. P3 does not provide for NOC in respect of Arts and Science Colleges. Going by Ext. P3 on the basis of approval and after entering into agreement, the NOC is to be issued. Going by Ext. P2 on the basis of the administrative sanction and NOC, the University will process the matter further and consider the grant of affiliation.
The learned counsel for the petitioner would then submit that the petitioner is prepared to enter into an agreement, so that NOC can be obtained. He would pray that the petitioner may be permitted to admit students this year immediately. We would think that a time limit should be fixed for the Government and the University to act on the basis of the action by the petitioner in terms of Ext. P3. Accordingly we dispose of the writ petition directing that if the petitioners are applying for NOC, then the State Government (respondent) will consider the grant of NOC in terms of the Government Orders and take a decision within a period of 2 weeks from the date of receipt of the application. Upon receipt of the NOC, the petitioners may approach the respondent University seeking affiliation and the respondent University will take a decision within two weeks from the date of receipt of the application seeking affiliation. We make it clear that the judgment will not relate to the course of MBA.