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Judgment
Shaji P. Chaly, J.
The above batch of appeals are filed by the petitioners in the writ petitions challenging the judgment of the learned Single Judge whereby the
learned Single Judge dismissed the writ petitions holding that the prospectus issued by the Director of Technical Education, Thiruvananthapuram dated
03.07.2020 for the academic year 2020-2021, in regard to Lateral Entry (LE) Scheme intended to admit meritorious Diploma / D. Voc / B.Sc holders
to the 3rd semester of the B. Tech courses, to acquire a degree in Engineering was right and in accordance with law. Some of the writ petitions were
filed by the students of Self financing Colleges and the rest of the writ petitions were filed by the Management of the Self-Financing Colleges.
The sum and substance of the basic contentions advanced are typical in nature and therefore separate narration of facts are not required. However,
respective counsel have addressed their arguments, relying upon the grounds raised in their writ appeals, which would be dealt with while considering
the arguments advanced.
To put it succinctly, the fundamental aspect that persuaded the appellants to file the writ petitions was the intimations issued by the APJ Abdul
Kalam Technological University, canceling the registration of the students admitted in the respective institutes under Lateral Entry Scheme, since they
were not included in the rank list prepared by the Commissioner of Entrance Examinations, and thereby requested the Private Self-Financing
Institutions to ensure that those students do not attend the B. Tech S3 (R) Dec 2020 (2019 scheme) exam scheduled to commence on 15th April 2021.
Even though a learned Single Judge of this Court had granted interim order permitting the students to participate in the said examination, the
examinations were postponed by the University due to the emergent situations prevailing on account of the Covid â€" 19 pandemic.
Prospectus referred to above on the basis of the Lateral Entry Scheme is approved by the Government of Kerala as per G. O. (Ms) No.
156/2002/H.Edn dated 13.11.2002 and G.O. (Rt) No. 1305/2019/H.Edn dated 26.07.2019 providing for 10% of the sanctioned seats which will be over
and above the supernumerary seats and in addition to total seats plus the unfilled vacancies of the first year (lapsed seats of first year).
Fee structure includes fees for the various courses in Government / Aided / Government controlled / Private Self financing Colleges fixed by the
Government from time to time. The students are made liable to pay the fees and all other charges as per statutes and the fee structure is provided in
annexure A of the prospectus.
Eligibility for admission would be subject to regulations prescribed in the prospectus for B.Tech (LE) course 2020-21 and the Universities
concerned. The academic eligibility is stipulated as follows:-
(a) candidates who have passed three year Diploma Examination in Engineering / Technology (two years in the case of Lateral Entry Diploma) from State Board of
Technical Education / Universities or Institutions under Govt. of India, undergoing studies at AICTE approved institutions with at least 45 marks in aggregate (40%
in the case of reserved category candidates). The branch-wise eligibility is given in Annexure B
OR
 (b) Candidates who have passed three year D. Voc. (Vocational Diploma) examination from State Board of Technical Education / Universities or Institutions under
Government of India, undergoing studies at AICTE approved institutions, with at least 45% marks in aggregate (40% in the case of reserved category candidates).
Branch-wise eligibility is given in Annexure B.
OR
(c) Candidates who have passed B.Sc. Examination from a recognized university as defined by the UGC with at least 45% marks in aggregate (40% in the case of
reserved category candidates), having passed 10+2 examination with Mathematics as a subject, are eligible to apply, subject to the following conditions:
(i) Candidates belonging to B.Sc. Streams who get admission to B.Tech (LE) shall have to clear the subjects Engineering Graphics / Engineering Drawing and
Engineering Mechanics of the First year Engineering Programme along with the second year subjects.
(ii) Candidates belonging to B.Sc. Stream shall be considered for admission to B.Tech (LE) only after considering all the eligible applicants belonging to the Diploma
and D.Voc. Streams.
That apart the prospectus prescribes the documents to be uploaded with the online application form to prove academic eligibility. Since such aspects
are not in dispute, we are not going into the intrinsic details of the same. Apart from the same, other mandatory requirements are prescribed in the
matter of submitting the application under the prospectus in question. But certain clauses of the prospectus are relevant in order to adjudicate the
issues raised in the appeal.
Clause 5 of the prospectus prescribes the method of reservation of seats, and it is specified in 5.1 that in Government Engineering Colleges all seats
under Lateral Entry Scheme will be allotted as Government seats. Clause 5.2 stipulates that 15% of seats under Lateral Entry are reserved as
Management seats in Aided Engineering Colleges and remaining 85% will be allotted as Government seats. Clause 5.3 specifies that the availability of
Government seats in Government controlled and other Private Self-Financing Engineering Colleges will be announced before the ensuing online
admission. Communal reservation is prescribed in the matter of Socially and Educationally Backward Communities (SEBC) and the Scheduled Caste
and Scheduled Tribe (SC/ST) Communities apart from seats reserved for Differently Abled Candidates. Clauses 5.7 and 5.8 are eminent in the matter
of identifying the issues correctly. They are as follows:-
“5.7. Admission & Allotment: A distinction will be made between 'Admission' to a course and seat 'Allotment' to a college. Admissions are offered through
allotment of seats under CAP. Allotments will be first offered under State Merit (SM) even to candidates having eligible reservation benefits as per mandatory
reservation so long as vacancies are available under the same, statewide. Only after all the 'State Merit' vacancies are exhausted across the State, seats will be offered
under the candidate's eligible reservation quotas under mandatory reservation.
5.8 All seats under Lateral Entry Scheme will be filled from the common rank list prepared by the Commissioner for Entrance Examinations, Kerala for the LET
Admission 2020.â€
Clause 10 of the prospectus delineates the manner in which selection of candidates are to be made. It reads thus:-
“10.1 The rank list shall be prepared with all the eligible candidates in the descending order of percentage of consolidated marks secured in the Diploma
examination/ D.Voc examination. Separate rank list will be prepared and published for the eligible candidates from B.Sc stream based on the percentage of
consolidated marks red in their B.Sc examination.
10.2 After the completion of the second allotment and its admission procedures, if seats remain vacant, a centralized spot admission will be conducted on a suitable
date as fixed later. All candidates in the rank list published by the Commissioner for Entrance Examinations, Kerala are eligible to appear for the centralized spot
admission. Those who are admitted in any institutions through centralized allotment can appear for centralized spot admission without NOC from the principals of
respective institutions. All other candidates should produce the original certificate/mark lists at the time of admission. The principals of concerned institutions should
issue TC and release all certificates and other relevant documents of candidates who obtained allotment through centralized spot admission without any delay.
Candidates selected for admission through centralized spot admission will have to join the respective institutions on the date specified, by remitting the required fees
at the respective institutions.
In case of practical difficulties in conducting a centralized spot admission, an online mop-up allotment will be conducted in which all the candidates in the rank list
can take part.
10.3. If seats remain vacant even after the centralized spot admission or the online mop-up allotment, as the case may be, the heads of the institutions are permitted to
admit the candidates from the rank list prepared by the Commissioner for Entrance Examinations, Kerala through institutional level spot admissions by giving wide
publicity in the media. Through this clause, institutions can fill vacant seats up to the last date of closing admission which will be decided by the Commissioner for
Entrance Examinations, Kerala.
10.4 The institutional level spo t admissions (mentioned in para 10.3 above) will be conducted only after the conduct of all phases of the Centralized Online
Allotments followed by the centralized spot admission or online mop-up counseling, as the case may be.â€(emphasis supplied)
The paramount contention advanced by the petitioners are that clause 5.8 of the prospectus would make it clear that it applies only to the
admissions conducted by the Commissioner of Entrance Examinations, Kerala to the Government Colleges and therefore the findings rendered by the
learned Single Judge that the prospectus applies to Private Self-Financing Colleges cannot be legally and factually sustained. In order to have a clear
picture of the contentions raised by the appellants, we are relying upon the pleadings put forth by the appellant in W. A. No. 857 of 2021 and the
documents would be referred in the sequence of order in the said writ petition.
The main contentions raised by the appellants are that as per the provisions of the APJ Abdul Kalam Technological University Act, only the
University could make provisions for fixing the eligibility qualifications for admissions and also for the method of selection. The Government has no
power at all in this matter. The AICTE also was competent to lay down the eligibility. The conduct of an Educational Institution being an ""occupation
entitled to the protection of Article 19(1)(g), the same could be interfered with only under a process traceable to Article 19(6). For that there has to be
a legislative exercise. A mere executive order is not sufficient. Therefore the Government have no source of power in issuing a prospectus affecting
admissions to Management Quota. The provisions of the Prospectus could apply only to Government seats.
Appellants further contended that before issuing the impugned order on the eve of the exams, there was no notice either to the College or to the
students. In that case, the Government had not filed any counter affidavit or even a statement. Only the University filed their counter affidavit and
though the matter was elaborately argued, unfortunately, the learned Single Judge was pleased to dismiss the writ petition. As far as the contention of
lack of notice to affected parties before the impugned orders were issued, there is no discussion in the judgment. As far as the contention that as per
the University Act, it is the exclusive domain of the University to fix the eligibility and method of admission, though this contention is referred to in the
judgment, there is no discussion or finding on that issue. Against the fundamental contention that there is no source of power to the Government to
make the prospectus applicable to Management quota, though there is no answer, the learned Single Judge appears to be banking on an agreement
with the Managements Association and the Government. Though this agreement was not produced in this case, the learned Standing Counsel had
relied on that and had argued that it is the source of power and there is a specific provision and that admissions would be made only from the rank list
published by the Commissioner.
Appellants further contended that they had made available a copy of the agreement for the perusal of the court and had specifically contended that
the same was not applicable to Lateral Entry Admissions. The said agreement was intended only for the regular admissions for the 1st year B. Tech.
Yet the learned Single Judge proceeded as if the same applies to Lateral Entry admissions also without entering into a specific finding on that. The
judgment precedes that after having ""agreed"" the petitioner cannot wriggle out of it. Appellants argued that there was no such agreement at all so far
as concerning the lateral entry course.
The predominant grounds raised are that the impugned judgment does not consider the contention that the impugned order of the University was
without notice to the affected parties though the said contention was referred to in the judgment. That apart it was submitted that the contention that
the University alone can lay down the eligibility and method of admission under the University Act is not answered in the impugned judgment. So also
it is stated that there was a specific contention that the State has no power to issue the prospectus affecting the admissions in Management quota.
Therefore the learned Single Judge fundamentally erred while trying to trace the source of power to the Government to an agreement and in fact
there was no agreement at all for Lateral Entry admissions for 2021. In fact the University alone has filed a counter affidavit along with relevant
documents to decide the issue on the point.
The basic aspects pointed out by the University are that the Management seeking a direction to the University to allow the students admitted by
the Management in blatant violation of the procedure prescribed in the prospectus issued by the Commissioner for Entrance Examination after
approval by the government is nothing but an abuse of the process of this Court. The justifications put forward by the petitioners is that they were not
aware of the procedure prescribed in the prospectus that admission of students for B. Tech Lateral Entry Course has to be made from a ranked list
prepared by the Commissioner for Entrance Examination. The above averment contained in the writ petition is ex-facie unsustainable and the same is
nothing but a ruse and a misleading statement made for filing the writ petition and getting the relief prayed for. The Government Order approving the
prospectus along with the prospectus is produced as Ext. R2 (a) by the University.
It is categorically stated in the counter affidavit that Annexure D appended to Ext.R2(a) prospectus lays down the criteria for preparation of the
ranked list. After the issuance of Ext.R2(a) prospectus, the Commissioner for Entrance Examinations issued a notification dated 14.10.2020, inviting
application for B. Tech Lateral Entry course 2020. Notification dated 14.10.2020 issued by the Commissioner for Entrance Examinations is produced
as Exhibit-R2(b) by the University. In paragraph 4 of Ext.R2(b) notification, the last date fixed for submission of online application was 20.10.2020.
Ext.R2(b) laid down a detailed procedure for submitting applications by prospective students for seeking admission to B.Tech Lateral Entry Course.
It is further submitted that after the issuance of Ext.R2(b) notification, the Commissioner for Entrance Examinations issued another notification
dated 20.10.2020 extending the last date fixed for submission of online application up to 27.10.2020. Notification extending the last date fixed for
submission of online application dated 20.10.2020 is produced as Exhibit-R2(c) by the University. Thereafter, the Commissioner for Entrance
Examination issued another notification dated 09.11.2020, inter alia, giving the schedule for making admission to B. Tech Lateral Entry Course and
also giving the list of B. Tech Degree Courses that are equivalent to diploma/diploma in vocational courses, which was fixed as the minimum eligibility
qualification and also details of the Engineering Colleges included in the Centralized Allotment Process. The above said notification dated 09.11.2020 is
produced as Exhibit-R2(d) by the University. Annexure 1 of Ext.R2(d) would show that the petitioner college is included among the list of Engineering
Colleges approved by the University and Commissioner for Entrance Examination for making admission to B. Tech Lateral Entry course for the year
2020.
It is further submitted that the Commissioner for Entrance Examinations thereafter issued a notification dated 13.11.2020, notifying the publication
of the rank list for admission to B. Tech Lateral Entry Course for the year 2020 in the website of the Commissioner for Entrance Examination.
Notification of the Commissioner for Entrance Examinations dated 13.11.20 is produced as Exhibit-R2(e) by the University. In Ext.R2(e) notification,
the Commissioner for Entrance Examinations also allowed candidates who were not included in the rank list and whose results were withheld for the
reasons stated therein to rectify the defects before 16.11.2020, for inclusion of their names in the rank list. In Ext.R2(e) notification, it was also stated
that the candidates who are included in the rank list and who participated in the Centralized Allotment Process conducted by the Commissioner for
Entrance Examination and who are allotted to a particular Engineering College shall be admitted to the course only after the college authorities verify
the certificates and the qualifying marks obtained by the candidates before granting such admission and it was also stated therein that in case of any
discrepancies noted by the admitting authority in the marks submitted for the B. Tech (Lateral Entry rank list), the candidature will be cancelled. From
the above notification, it is clear that the petitioners who are the Management of the institution were strictly bound by the norms laid down in the
prospectus and the conditions stipulated in the notification. In accordance with the norms laid down in the prospectus, it is beyond any cavil of doubt
that only candidates included in the ranked list could be admitted for B. Tech Lateral Entry course by the Engineering Colleges/Technical Institutions,
who are included in the common centralized admission process of the Commissioner for Entrance Examination and affiliated to the University.
It is also submitted that after issuance of the above notification, the Government have issued order dated 28.12.2020 extending the last date fixed
for completing the admission process for B. Tech Engineering Courses till 31.12.2020, on finding that large number of seats in various Self-Financing
Engineering Colleges and Government controlled Self-Financing Engineering Colleges under the Lateral Entry quota were lying vacant. Government
Order dated 28.12.2020 is produced as Exhibit-R2(f) by the University.
The 2nd respondent University also submitted that after the completion of the admission process and the commencement of the classes, the
University issued a notification dated 09.03.2021 to all technical institutions affiliated to the University that only students admitted for B. Tech Lateral
Entry Course from the common rank list prepared by the Commissioner for Entrance Examinations, Kerala for admission 2020 will be permitted to
register in the University portal. Notification dated 09.03.2021 issued by the University is produced as Exhibit-R2(g).
Therefore according to the University it is clear that a detailed procedure and norms were laid down by the Government for making admission to
B.Tech Lateral Entry Course for the year 2020 for all the institutions affiliated to the University and who were included in the list of approved
technical institutions for admission to common centralized allotment process conducted by the Commissioner for Entrance Examinations.
The sum and substance of the contention advanced by the University is that the rank list was prepared strictly in accordance with the norms laid
down in the prospectus and the notifications issued by the Commissioner for Entrance Examinations and the rank list was prepared from the
candidates who had submitted their applications complying with the procedure prescribed in the prospectus and in the notification seeking admission
for B.Tech Lateral Entry Course. It was the said common rank list that was published in the website of the Commissioner for Entrance Examinations.
It is also clear that it was in the light of the orders issued by the Government extending the last date fixed for completing the admission process for
B.Tech Lateral Entry Course and considering the supplementary notification issued by the Commissioner for Entrance Examinations allowing students
to cure the defects notified, the Commissioner for Entrance Examinations published a supplementary list of candidate who were found eligible for B.
Tech Lateral Entry Course as per Exhibit-R2(h) notification dated 28.12.2020.
It is also evident that after the publication of the common rank list of candidates who were found eligible for admission to B.Tech Lateral Entry
Course for 2020-21 by the Commissioner for Entrance Examinations the centralized allotment process was commenced and completed by the
Commissioner for Entrance Examinations and students who were opted for admission for B. Tech Lateral Entry Courses in different Government
Engineering Colleges, Government controlled Self-Financing Engineering Colleges and Self-Financing Engineering Colleges affiliated to the University
were granted admission including the College of the appellants.
Therefore it was predominantly contented that the appellant colleges had absolutely no authority or power vested in it to admit students for B.
Tech Lateral Entry Course who were not included in the common rank list prepared by the Commissioner for Entrance Examinations and outside the
centralized admission process conducted by the Commissioner for Entrance Examinations. It is also the contention of the University that the
Managements had admitted the students outside the common rank list prepared by the Commissioner for Entrance Examinations without any authority
of law and in blatant violation of the norms and procedure prescribed in the prospectus which is the rule and the law governing the admission to B.
Tech Lateral Entry Courses.
The University had relied upon various judgments of this Court as well as the Hon'ble Apex Court to drive home the point that the learned Single
Judge was right in arriving at the conclusions and dismissing the writ petitions. The learned Single Judge after taking into account the rival submissions,
the pleadings, the documents and the principles of law laid down by the Hon'ble Apex Court in Priya Gupta v. State of Chattishgarh and others [(2012)
7 SCC 433], Visveswaraya Technological University and another v. Krishnendu Halder and others [AIR 2011 SC 1429=(2011) 4 SCC 606], Mahatma
Gandhi University and Another v. Jikku Paul and Ors. [AIR 2011 SC 3543=(2011) 15 SCC 242], Sainulabdin v. State of Kerala [1995 (2) KLT, 629]
analyzed the situation in the cases at hand and held as follows:-
“19. I find from an examination of the contentions raised and the pleadings that it is not in dispute that the petitioners themselves have acceded in the provision of
making admissions to 50% Lateral Entry seats from the list prepared by the Commissioner of Entrance Examinations. They themselves admit that in previous years,
the admissions has been made from the list prepared after conduct of the Lateral Entry test. In the current year also, it is admitted that to the merit seats, that is 50% of
the seats which are available for Lateral Entry as per the Government Order, the admissions have been made from the list prepared by the Commissioner of Entrance
Examinations. If that be so, the contention now raised that the prospectus and the agreement have no application to the Lateral Entry Seats at all is completely
untenable, since the petitioners themselves have acted in accordance with the prospectus with regard to the 50% seats available for Lateral Entry. It is only with
regard to the 50% of the seats in the Management quota that they have raised an objection, that too, for the first time when the order was passed by the University
removing the students so irregularly admitted. In the above view of the matter, the contention with regard to the in-applicability of the prospectus or the agreement,
according to me, is not a ground which can be raised by the petitioners, who have themselves admittedly gone in accordance with the prospectus as well as the
agreement.
It is an admitted case that all admissions to such engineering colleges in the previous years, including Lateral Entry Seats were regulated by the prospectus
issued from time to time. All admissions were made from the ranked list prepared by the Commissioner of Entrance Examinations after Entrance Examinations/Lateral
Entry Tests. The purpose of conduct of such examinations and the procedure for making admissions from a list prepared by the Commissioner of Entrance
Examinations was undoubtedly to make sure that the process of admission would be a transparent process based on the merit as also to protect public interest and
the quality of technical education. The changed circumstance in the present year is only to the extent that the Lateral Entry test could not be conducted due to the
pandemic situation prevalent. However, the Director of Technical Education as well as the Commissioner of Entrance Examinations had issued notifications making it
abundantly clear that admissions to the Lateral Entry seats available could be made from the ranked list prepared by the Commissioner of Entrance Examinations
pursuant to the applications to be made by eligible candidates. Admittedly, the prospectus was issued on 15.9.2020. An agreement was entered into by the private
college Managements with the Government on 5.10.2020 agreeing to make admissions as provided therein. The prospectus dated 15.9.2020 contained the specific
provision that admissions to Lateral Entry would also be made from the list prepared by the Commissioner of Entrance Examinations. The prospectus also provided
the procedure for eligible students for making their applications for being included in the ranked list. The time granted has been extended on various occasions on
account of the difficulties faced by the students due to the pandemic. Thereafter, it appears that a supplementary list had also been prepared, taking note of the fact
that seats were lying vacant in many of the colleges. The private college Managements or the concerned students made absolutely no effort to challenge the
provisions in the prospectus dated 15.9.2020 at the relevant time. The Managements made admissions by Lateral Entry to certain seats without reference to the list
prepared by the Commissioner of Entrance Examinations. They contend that the list of students had been placed before the University as early as in January, 2021.
Even so, having made the admissions de hors the prospectus, I am of the opinion that the Managements cannot, at this distance of time, contend that the provisions
of the prospectus were illegal or not applicable to them. If the legal contentions raised in these writ petitions are accepted, the consequence would be a grant of
complete laissez-faire to the private college Managements to make admissions to the Lateral Entry Seats at their whims and fancies. This would lead to a situation
where the quality of technical education would come to be compromised, since no transparent procedure for assessment of the comparative merit of the students
would be liable to be followed by the Managements in the matter of filling up the Lateral Entry Seats. Such a situation would not be in public interest and would work
against the decisions laid down by the Apex Court as well as this Court on the subject matter.
21.Having found that the admissions made by the colleges were irregular and illegal, the prayer made by the students for permission to appear for the examinations
and to continue the course cannot be countenanced by this Court. In view of the fact that wide publicity was given to the fact that admission by Lateral Entry in Self
Financing Engineering Colleges on the basis of a ranked list published by the Controller of Entrance Examinations in the order of marks obtained by the students in
the diploma courses undergone by them, there exists no justification whatsoever for their action in having secured admissions de hors such procedure.
It is clear that the right of the private college Managements to conduct their colleges has to be balanced with the larger public interest and the quality of technical
education in the country. In such circumstances, I am of the opinion that the contentions raised are unsustainable. The writ petitions fail and the same are
accordingly dismissed.â€
We have heard, learned Senior Counsel Sri. Kurian George Kannanthanam assisted by Adv. P. M. Saneer, Sri. S. Krishnamoorthy, Sri. Abdul
Jawad K., Sri. Sherry J. Thomas, Sri. R. T. Pradeep, Sri. Liju V. Stephen, Sri. K. A. Abdul Jaleel and other learned counsel appearing for the
petitioners, Sri. Elvin Peter, Standing Counsel for the APJ Abdul Kalam Technological University, Sri. Surin George Ipe and Sri. Aravind Kumar Babu
Senior Government Pleaders for the State and perused the pleadings and materials on record.
Sri. Kurian George Kannathanam, learned Senior Counsel led the arguments for the appellants. Learned Senior Counsel has relied upon Section 8
of the APJ Abdul Kalam Technological University Act, 2015, which prescribes the powers and functions of the University and specifically referred to
clause (xiii) which specifies the powers and functions to control and regulate admission of students for various courses of study in colleges,
departments, or centers maintained by the University. Learned Senior Counsel has relied upon Section 30 dealing with powers functions and duties of
the Executive Committee and specifically referred to clause (vi) thereunder which is vesting power in the Executive Committee to control and regulate
admission of students for various courses of study in colleges, departments, or centers maintained by the University, and Section 34 dealing with
powers, functions and duties of the Academic Committee was referred to and relied upon clause (v) which empowers the Academic Committee to
prescribe the qualifications for admission of students to the various branches of studies and to the examinations with the approval of the Executive
Committee.
Placing reliance on the aforesaid provisions the paramount contention advanced by the learned Senior Counsel was that the University and
authorities under the Act 2015 alone are vested with powers to prescribe the qualifications and the criteria for admission of students and looking from
that angle the State Government and its officials had no power to issue a prospectus and regulate and control the admissions to the B. Tech Lateral
Entry Courses. Learned Senior Counsel also submitted that the agreement executed by the Management is only in regard to the B. Tech Regular
Students admissions in the 1st year and that cannot be applied to the Lateral Entry Scheme to which the qualified students are admitted in the 3rd
semester i.e. the 2nd year of B. Tech course.
Learned Senior Counsel has also relied upon Article 19(6) of the Constitution of India and submitted that unless and until a law is prescribed in
regard to the Lateral Entry admissions the State Government has no power to issue prospectus exercising the executive power which according to the
learned Senior Counsel is a very well settled legal position.
That apart, it was contended that the prospectus was issued by the State Government for the academic year 2020-21 to deal with the Government
Colleges alone which is quite discernible from the phraseologies employed in various provisions of the prospectus and therefore the learned Single
Judge absolutely erred in relying upon the stipulations and Rules projected in the prospectus so as to nonsuit the appellants. It was also submitted that
the University did not raise any objection when the students were admitted by the Managements and at the fag end of the classes while the students
were preparing for the examinations, their admissions were terminated without even a notice and therefore the action of the University is absolutely in
violation of the principles of natural justice. It was also submitted that going by the prospectus, only the Controller of Examinations / the Director of
Technical Education alone were vested with powers to cancel any admissions.
Sri. Liju V. Stephen, learned counsel appearing for the appellant in writ appeal No. 871 of 2021 submitted that his issue is basically relating to the
admissions given through the Lateral Entry against the seats which were remaining vacant from the 1st year B. Tech course done in terms of the
provisions of the prospectus. According to the learned counsel, 74 seats were remaining vacant in the 1st year B. Tech course and therefore the
appellant was entitled to admit 24 students, which was the practice that was being followed during the previous years. It was also submitted that the
University has deviated from the usual practice of permitting the college to fill up the seats remaining vacant in the 1st year through Lateral Entry, all
on a sudden, and without any information to the college as well as the students. Therefore according to the learned counsel, the entire action of the
University in canceling the registration and depriving the students from participating in the University examination cannot be sustained, being arbitrary
and violative of the principles of natural justice.
Sri. S. Krishnamoorthy, learned counsel for the appellant in writ appeal No. 862 of 2021 relied upon the phraseology “will†employed in clause
5.8 of the prospectus and contended that the terminology used makes it clear that the Management is entitled to fill up the remaining seats, without the
juncture of the Controller of Entrance Examinations or the Director of Technical Education, or else the phraseology employed instead of “willâ€
should have been “shallâ€. It was also contended that if there was any objection to the admissions made by the Management, it ought to have been
raised by the University, then and there itself, and not when the students were offering themselves for the University examinations. Learned counsel
also contended that the All India Council for Technical Education has decided not to conduct any entrance examinations and on a reading of the
prospectus, it would be clear that the prospectus was intended to draw up a rank list after conduct of an entrance examination. It was further
submitted that the provisions of the prospectus would show that in the facts and circumstances, it can never apply to the Private Management Self-
Financing Institutions.
Sri. Abdul Jawad appearing for the appellants in writ appeal No. 854 of 2021 and 858 of 2021 submitted that the cancellation of the registration of
the students in the appellant institutes were in regard to the admissions made under the NRI quota guided by Ext. P9 Government Order produced in
the writ petition dated 05.10.2020, enabling the educational agency to fill up 15% seats in the NRI category, by admitting qualified students, who are
dependents of Non-Resident Indians, as per Section 2(o) of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation
of Admission, Fixation of Non-Exploitative Fee and Other measures to Ensure Equity and Excellence in Professional Education) Act, 2006, since all
the students are exempted from qualifying any entrance test and can be admitted, if they satisfy the prescribed conditions of academic eligibility.
The other counsel appearing for the appellants have also addressed arguments akin to the ones raised by the learned counsel.
The learned counsel for the University addressed arguments as contended in the counter affidavit and submitted that the action of the University in
canceling the registration of the students admitted, violative of the provisions of the prospectus in question, is in accordance with law, and the learned
Single Judge has rightly found that the action of the University was correct.
Learned Senior Government Pleaders also supported the arguments advanced by the learned counsel for the University, and in particular,
submitted that the Government Order dated 05.10.2020 relied upon by Sri. Abdul Jawad is in respect of a general order concerning higher education
â€" technical education admission to professional degree courses for the academic year 2020-21 and fee structure and allotment of seats by the
Commissioner of Entrance Examinations in the Self-Financing Engineering Colleges under the Kerala Self-Financing Engineering College
Management Association. However, since a specific prospectus is issued by the Director of Technical Education, so as to regulate the admissions of
Lateral Entry B. Tech course, the Management will have to abide by the conditions contained thereunder and they cannot seek refuge in the
notification specified above to submit that Non-Resident Indians can be admitted by the Management, without any reservations or overlooking the
guidelines contained under the prospectus.
We have evaluated the rival submissions made across the Bar.
The paramount questions raised by the learned Senior Counsel Sri. Kurian George Kannanthanam revolves around Article 19(6) of the
Constitution of India and so also Sections 8, 30 and 34 of the Act 2015.
In our view, Section 8 deals with powers and functions of the University. Clause (xiii) thereto enables the University to control and regulate
admission of students for various courses of study in colleges, departments or centers maintained by the University. Going by the provision, it is clear
that the admission of students is a subsequent act, consequent to the preparation of a list of eligible students, in accordance with the eligibility and other
conditions fixed by the statutory authorities. The eligibility is prescribed by the All India Council for Technical Education and any student who secures
45% marks in the qualifying examinations are entitled to apply for the B. Tech Lateral Entry Course. Therefore, the University is entitled to regulate
such students who are entitled to get admission in the institutions as per the list prepared by the Commissioner of Entrance Examinations, in
accordance with the prescriptions contained under the prospectus. Similarly, Section 30 is a power vested in the Executive Committee, which is
subject to the provisions of the Act, the statutes, and the executive powers of the University, including the general superintendence and control over
the institutions affiliated to the University.
Learned Senior Counsel relied upon clause (vi) thereto which specifies that the Executive Committee is vested with powers to control and regulate
admission of students for various courses of study in colleges, departments or centers maintained by the University. It also shows that it is a power
conferred on the Executive Committee after the selection procedure is complete. So also Section 34 is the power of the Academic Committee, and as
per clause (v) thereto, it has the power to prescribe the qualifications for admission of students to the various branches of studies and to the
examinations with the approval of the Executive Committee.
In our view, all those have nothing to do with the selection process carried out by a common admission process and in the case at hand, the All
India Council for Technical Education has prescribed the qualification of 45% in order to participate in the selection process for the B. Tech Lateral
Entry Course.
Much arguments were advanced by the learned Senior Counsel relying upon Article 19(1)(g) and (6) of the Constitution of India and basically
contended that Executive power of the State conferred under Article 162 of the Constitution of India cannot be exercised to make law, since clause
(6) of Article 19 explains the rigor of the Constitutional provision by which the common admission process can only be done by prescribing a law.
The sum and substance of the contention advanced was that a prospectus issued by the State exercising its Executive power under Article 162 of
the Constitution, was nothing but circumventing the law intended under clause (6) of Article 19 of the Constitution.
Article 162 clearly specifies that the Executive power of a State shall extent to the matters with respect to which the Legislature of the State has
power to make laws and the proviso makes it clear that in any matter with respect to which the Legislature of a State and Parliament have power to
make laws, the Executive power of the State shall be subject to and limited by Executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union or authorities thereof. It is significant and relevant to note that the appellants have no case that by making the
selection procedure by issuing a prospectus the State Government has overlooked any laws made by the Parliament. The intention of the State was
only to have a common admission procedure in order to select the meritorious students to the Lateral Entry Course and the appellants have failed to
show that any Union law is guiding the said field.
A learned Single Judge of the Madras High Court had occasion to consider almost a similar issue in the Judgment in Tamil Nadu Self Financing
Engineering Colleges Association v. the State of Tamil Nadu in W.P. No. 8223 of 1997 and other connected matters [MANU/TN/1463/1997] in the
matter of allotment of branches on the basis of the Government Orders issued, in so far as concerning Self-Financing Engineering Colleges, wherein it
was held that Government Order had been issued in interest of general public and complaints regarding commercialization received by High Level
Committee clearly shows that commercialization was positively harmful to society and it was opposed to public policy. It was further held that if the
private unaided institutions were again given power of allotment of branches, then it would completely defeat the principles evolved by the Hon’ble
Supreme Court. Therefore it was held that on the basis of the scheme evolved by the Hon’ble Supreme Court, Government had necessary power
to allot branches to students at the time of admission. That apart, it was held that sub regulation (9) of regulation 8 framed under the AICTE Act
makes it clear that admission against seat includes allotment of students to various courses and institutions and regulation also makes it clear that the
competent authority, i.e. the State Government had power to allot branches to students.
Paragraphs 17 to 20 are relevant to the context and they read thus:-
“17. I have also carefully gone through the report of the High Level Committee and the report of the said committee was submitted after holding several public
hearings in various parts of the State of Tamil Nadu. I am quite satisfied that the impugned Government Orders have been issued in the interest of general public and
the complaints regarding commercialisation received by the High Level Committee clearly show that the commercialisation is positively harmful to the society and it is
opposed to the public policy. If the private unaided institutions are again given the power of allotment of branches, then it will completely defeat the principles
evolved by the Supreme Court in Unnikrishnan's case. I am, therefore of the opinion that on the basis of the scheme evolved by the Supreme Court in Unnikrishnan's
case, the Government has the necessary power to allot the branches to the students at the time of admission of the students. Otherwise, the students admitted
against the free seats as well as payment seats would be exposed to the evil that was sought to be remedied by the Supreme Court. If the contention of the Learned
Counsel for the Petitioners that the allotment of seat is one aspect and the allotment of branch is another aspect in the matter of education is accepted, it will set at
naught or go against the scheme framed by the Supreme Court in Unnikrishnan's case.
Further, when the seats are sanctioned for a particular Engineering College, the number of seats is fixed by the appropriate authorities with reference to each
branch of study. The appropriate authorities allot the number of seats according to different faculties and the allotment of seat is made with reference to a particular
branch of study. The approval granted may be with reference to civil engineering or mechanical engineering or electrical engineering or computer engineering course
of study. Therefore, when the appropriate authorities sanction the seats, it includes the branch, there cannot be a different meaning for the 'seat' in the scheme framed
by the Supreme Court to exclude the branch allotment. That apart, it cannot be assumed that the apex court was not aware of the distinction between the admission to
a college and the allotment of branch. It is relevant to notice that the Supreme Court noticed the provisions of A.I.C.T.E. Act and when according to the Petitioners,
the expression ‘admission’ of students in Section 10(o) of the A.I.C.T.E. Act includes the branch allotment, it must be held that when the Supreme Court held
that there shall be allotment of students against the seats it meant allotment of the branch as well. In my view, by placing the natural meaning to the expression,
'seat’, this Court has not interpreted the decision of the apex court as if it is a statute.
The regulations prescribed by A.I.C.T.E. fix the norms and guidelines for charging tuition fees and guidelines for admission. The regulations also make it clear that
allotment of seat includes the allotment of branch for a course of study. Regulation No. 8 provides for procedure for allotment of seats and under that regulation, no
professional college shall call for applications for admission separately or individually and application form should also indicate whether the applicant wishes to be
admitted against a free seat or a payment seat or both and the order of preference upto three professional colleges. Regulation 8(5) makes it clear that fifty per cent of
the seats in professional colleges, course or programme shall be earmarked as free seats and the allotment of students against payment seats shall be done on the
basis of inter se merit determined on the same basis as in the case of free seats. Regulation 8(6) also provides that there should be no management quota or any other
quota whatsoever either for free seats or payment seats except as otherwise provided regulations . Under regulation 8(9), the competent authority shall prepare a
detailed schedule every year relating to inviting of applications, conducting of examination drawing up of merit order, publication of results Allotment of students to
various courses and institutions both for free seats and payment seats in accordance with the Regulations and shall act in accordance with such schedule. The
above Sub-regulation 9 clearly makes it clear that admission against seat includes the allotment of the students to various courses and the institution. The regulation
also makes it clear that the competent authority, i.e. the state Government has the power to allot the branch to students. Therefore, in my view, both under the
principles laid down by the Supreme Court in Unnikrishnan's case and on the basis of the regulation framed under A.I.C.T.E. Act, the State Government is empowered
to issue impugned Government Orders.
As I have already held, the above impugned Government Orders have been issued keeping in view the Public interest. That apart, the Supreme Court has made it
clear that it is open to the appropriate authorities or competent authorities to issue any further instructions or directions as they may think appropriate, not
inconsistent with the scheme evolved by the Supreme Court by way of elaboration or elucidation. In my view, the Government Orders issued cannot be stated to be
in any way inconsistent with the scheme evolved by the Supreme Court in Unnikrishnan's case, but they were issued to give effect to the scheme in Unnikrishnan's
case. Therefore, I am of the view, when the Supreme Court has conferred powers on the competent authorities to allot a seat, it also includes the power to allot a
branch also. Further any interpreter which would enable self-financing Engineering Colleges to retain the right of allotment of branches would be contrary to the
scheme framed by the Supreme Court. The object of the Supreme Court's judgment in Unnikrishnan's case is to put an end to commercialisation of the education in
technical institutions and if the private colleges are given the power to allot the branches, it would amount to granting a discretion on the management to allot the
branch and the spirit behind the Supreme Court's decision would be given a go-by and defeated. Therefore, I am of the view, the State Government was justified in
issuing the Government Orders which were issued with the laudable object of putting an end to the evil commercialisation of education at the time of allotment of
branches by the self financing engineering colleges.â€
In our considered view, Article 19(6) enables the State from making any law relating to the professional or technical qualifications necessary for
practicing any profession or carrying on any occupation, trade or business, which has nothing to do with the qualification and eligibility reproduced in
the prospectus constituted by the Government Â
for the purpose of making a selection procedure. On deeper analysis of clause (6) of Article 19, it is clear that the ‘law’ intended thereunder is
for professional or technical qualifications prescribed for the purpose of practicing any profession or carrying on any occupation, trade or business and
not the qualification necessary for making admissions. Apart from the same, the All India Council for Technical Education, and the University have
enacted laws for the purpose of regulating, controlling and providing admissions. It is significant to note that there is no provision either under the
AICTE Act or the University Act in the matter of conducting a common admission test or selection procedure. True, prior to 2020-21, a selection
procedure was made by conducting an entrance examination, however, due to the pandemic Covid â€" 19, the authorities have decided to conduct the
selection process on the basis of marks secured by the students in the qualifying examination.
Therefore it is clear that during the previous years the selection conducted was on the basis of a prospectus issued by the State Government on
the basis of an entrance examination and the list prepared in accordance with the rank secured by the students in the entrance examination. However
therein also the qualification was prescribed for participating in the selection process and it was fixed by the All India Council for Technical Education.
Now a circular issued by the All India Council for Technical Education for the academic year in that regard is relevant which reads thus:-
“F. No. AICTE/AB/SCR/Circular/(Lateral Entry)/2020-21 Date: l7-09-2020
CIRCULAR
Subject: Diploma Students in B. Tech (Lateral Entry), Admission-Regarding.
It has come to the knowledge of AICTE that some of the AICTE institutions are refusing Diploma qualified students for lateral entry admission under Engineering and
Technology courses with restricted discipline only.
Whereas, as per the AICTE Approval Process Handbook for A/Y 2O2O-21 clause 1.3, there is no such restriction in the admission of Diploma students to Under
Graduate Engineering & Technology courses under lateral entry.
The Clause 1.3(Viii) of APH AIY 2O2O-21 for the admission for Diploma Students into Engineering and Technology (UC Courses) under lateral entry is as:
Program Duration EligibilityÂ
Engineerin g and 3 years a. Passed Diploma examination with at
Technology (Lateral least 45% marks (40% marks in case of
Entry to Second year) candidates belonging to reserved
category) in ANY branch of
Engineering and Technology.
b . Passed B.Sc. Degree from a
recognized University as defined by
UGC, with at least 45% marks (40%
marks in case of candidates belonging
to reserved category) and passed 10+2
examination
 with mathematics as a subject.
 c. Provided that the students
belonging to B.Sc. Stream, shall clear
the subjects Engineering Graphics /
Engineering Drawing and Engineering
Mechanics of the First Year
Engineering Programme along with the
Second year subjects.
d. Provided that the students belonging
to B.Sc. Stream shall be considered
after filing the supernumerary seats in
this category with students belonging
to the Diploma stream.
e. Passed D.Voc Stream in the same or
allied sector. f. In the above cases,
suitable bridge Courses, if required
such as in Mathematics or basic
Engineering foundation courses may be
suitably designed and implemented.
Further as per clause 1.3 (i) admissions in UG (Engineering) and Technology ""Passed Diploma (in Engineering and Technology) examination with at
least 45% marks (40% marks in case of candidates belonging to reserved category) subject to vacancies in the First Year, in case the vacancies at
lateral entry are exhausted"". Therefore, all the State Government/ Universities are requested to inform all the institutions falling under their jurisdiction
to adhere to the condition mentioned above for the admission of diploma qualified students in Undergraduate courses as per the Approval Process
Handbook Clause 1.3 for lateral entry admission.
Sd/-
(Prof. Rajive Kumar)
Member Secretaryâ€
On a reading of the said circular, it is clear that a minimum 45% marks in the general category and 40% marks in the case of reserved category
was fixed by the AICTE in any branch of Engineering and Technology and other degree courses. This is what is clearly reflected in the prospectus. It
is clear from the circular that the State Government or Universities are requested to inform all the institutions falling under the jurisdiction to adhere to
the condition mentioned above for the admission of diploma qualified students in undergraduate courses as per the Approval Process Handbook clause
1.3 for Lateral Entry Admission. Therefore it is evident and discernible that the contention advanced by the learned counsel that the State is not vested
with any powers under any law to conduct the selection process by issuing a prospectus can never be sustained under law. In the circular, the State
Government is notified by the AICTE that it shall ensure to inform all the institutions falling under the jurisdiction to adhere to the conditions mentioned
in the circular, which can never be treated as an empty formality, and the State can never be treated as a post office to communicate the conditions.
Rather, by that short and crisp request it intends the State to undertake a systematic and disciplined procedure for conducting the selection procedure.
Above all, the AICTE has launched the approval process handbook 2021-22 and clause 1.3 of the same deals with undergraduate degree and in
the footnote to the said clause, it is made clear that for the year 2021-22 respective State Government / Affiliating University / Board may decide the
eligibility criteria for entry level qualification for different programmes or courses. Therefore the circular issued by the AICTE for the academic year
2020-2021 dated 17.09.2020 assumes importance in the matter of request made to the State Government / Universities to inform all the institutions
falling under their jurisdiction to adhere to the condition mentioned above for the admission of diploma qualified students in undergraduate courses as
per the approval process handbook clause 1.3 for Lateral Entry admission for the year 2020-2021. To put it otherwise the state Government was
expected to ensure a methodology to conduct a selection procedure in the larger interests of the students and to avoid any manner of malpractices in
the process of providing admission by the private educational institutions, the colleges and the management, and to ensure and retain standard of
education.
As we have pointed out earlier, there is no other statutes for the purpose of conducting a common admission process and the only way to prepare
a rank list was, either by conducting an entrance examination or a selection procedure taking into account the marks secured by the candidates in the
qualifying examinations, by invoking the powers conferred under Article 162 of the Constitution of India which is not in conflict with any other laws
made by the Union Government in the matter of conducting admission to technical courses. Therefore, we are of the clear opinion that the contention
advanced by the learned counsel for the appellants that the State and its officials were not empowered to conduct the selection process by issuing a
prospectus has no legal basis or legs to stand.
Now we are coming to the other contentions raised by learned counsel for the appellants relying upon the prospectus. We have extracted the
relevant provisions of the prospectus. On a reading of clause 3 of the prospectus, it is clear that fee for the various courses in Government / aided /
Government controlled / Private Self-Financing Colleges will be as fixed by the Government from time to time and students will be liable to pay the
fees and all other charges as per the statutes. That apart clause 5.3 makes it clear that the availability of Government seats in Government controlled
and other Private Self-Financing Engineering Colleges will be announced before the ensuing online admission. Therefore it is clear that the prospectus
takes in not only the Government or aided Government Colleges but the Private Self-Financing Engineering Colleges also. Viewed in that manner the
prospectus issued by the Government after approving the same on 15.09.2020 is binding on all the Technical institutions conducting the Lateral Entry
Course in B. Tech. The prospectus also shows that it deals with the communal reservation for SEBC category, SC/ST category and disability
category, apart from other reservations on various counts approved by the Government. It is also an admitted fact that the Managements have
admitted students from the list prepared by the Government as per the prospectus. The case of the Management is that there were no sufficient
students in the reserve list of the Controller of Entrance Examinations and therefore the Management was free and at liberty to provide admissions to
students of their choice, which approach has to be deprecated because it was clearly specified in the prospectus that the admissions under any
circumstances can only be made from the list prepared by the State.
Whatever that may be, we are of the considered opinion that the contention advanced by the University relying upon the requisite Government
orders produced, makes it clear that a cut off date was fixed for submitting applications for the academic year 2020-21 to the course in question,
which period was extended on various occasions. It is also clear from Ext. R2(h) supplementary list dated 28.12.2020 that only 8 students applied for
the course in question, taking advantage of the finally extended period up to 28.12.2020.
Therefore we find force in the contentions advanced by learned Standing Counsel for the University that all the applicants were streamlined by the
Commissioner of Entrance Examinations in accordance with their marks secured in the qualifying examinations and if the seats were remaining vacant
there was no empowerment to the Management to fill up those seats. Â
In that regard, learned counsel for the University invited our attention to the judgment of the Hon’ble Apex Court in Visveswaraiah
Technological University and another v. Krishnendu Halder and others [(2011) 4 SCC 606] where the question involved was whether the eligibility
criteria for admission to the Engineering courses stipulated under the statutory rules and regulations of the State Government or University could be
relaxed or ignored and candidates who do not meet with such eligibility criteria can be given admission on the ground that a large number of seats
have remained unfilled in professional colleges, if such candidates possesses the minimum eligibility prescribed under norms of the Central body
(AICTE).
After assimilating the factual and legal situations and the proposition of law laid down by the Apex Court in various judgments such as State of
T.N. v. S. V. Bratheep [(2004) 4 SCC 513, State of T.N. v. Adiyaman Educational & Research Institute [(1995) 4 SCC 104, Preethi Srivastava (Dr.)
v. State of M.P. [(1999) 7 SCC 120] it was held as follows:-
“15. The primary reason for seats remaining vacant in a State is the mushrooming of private institutions in higher education. This is so in several States in regard
to teachers training institutions, dental colleges or engineering colleges. The second reason is certain disciplines going out of favour with students because they are
considered to be no longer promising or attractive for future career prospects. The third reason is the bad reputation acquired by some institutions due to lack of
infrastructure, bad faculty and indifferent teaching. Fixing of higher standards, marginally higher than the minimum, seldom the reason for seats in some colleges
remaining vacant or unfilled during a particular year. Therefore, a student whose marks fall short of the eligibility criteria fixed by the State/University, or any college
which admits such students directly under the Management quota, cannot contend that the admission of students found qualified under the criteria fixed by AICTE,
should be approved even if they do not fulfill the higher eligibility criteria fixed by the State/University.
The proliferating unaided private colleges, may need a full complement of students for their comfortable sustenance (meeting the cost of running the college and
paying the staff, etc.). But that cannot be at the risk of quality of education. To give an example, if 35% is the minimum passing marks in a qualifying examination, can
it be argued by the colleges that the minimum passing marks in the qualifying examination should be reduced to only 25 or 20 instead of 35 on the ground that the
number of students/ candidates who pass the examination are not sufficient to fill their seats? Reducing the standards to ""fill the seats"" will be a dangerous trend
which will destroy the quality of education. If there are large number of vacancies, the remedy lies in (a) not permitting new colleges; (b) reducing the intake in
existing colleges; (c) improving the infrastructure and quality of the institution to attract more students. Be that as it may. The need to fill the seats cannot be
permitted to override the need to maintain quality of education. Creeping commercialization of education in the last few years should be a matter of concern for the
central bodies, States and universities.
No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there
are unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of
higher education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are
beyond the purview of judicial review, unless it is established that such standards are arbitrary or ""adversely affect"" the standards, if any, fixed by the central body
under a Central enactment. The order of the Division Bench is therefore unsustainable.â€
Learned counsel has also invited our attention to the judgment of the Hon’ble Apex Court in Mahatma Gandhi University and another v. Jikku
Paul and others [AIR 2011 SC 3543] wherein the issue in relation to the admission to Lateral Entry Course was considered by the Hon’ble Apex
Court in view of the Government Order dated 30.11.2002 issued by the Government of Kerala, according sanction for admitting the diploma holders in
the State directly to the 2nd year of the Engineering Degree (B. Tech) course, subject to the concurrence of the All India Council for Technical
Education and the Universities concerned, wherein the eligibility prescribed by the AICTE to seek Lateral Entry to Engineering Degree programme at
the 2nd year / 3rd semester level, a candidate must have passed the Diploma in Engineering in the relevant branch with a minimum of 60% in the
aggregate.
Apparently, it was also stipulated that the selection of candidates will be based on an entrance test, the merit ranking in the test being the basis of
admission. As per 6.1(b) therein eligibility was fixed by the AICTE wherein it was made clear that it is necessary to select only meritorious students
who have passed the diploma with good academic record.
The issues raised therein were considered by the Hon’ble Apex Court at paragraphs 9 and 10 which are significant and relevant to sort out the
issues raised in this writ appeals. They read thus:-
 “9. The issues raised in this appeal are squarely covered by a recent decision of this Court in Visveswaraya Technological University & Anr. v. Krishnendu
Halder & Ors. [2011 (3) SCALE 359 (AIR 2011 SC 1429: 2011 AIR SCW 2180)]. We extract below the relevant principles from the said decision:
(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by
the Central Body/AICTE. The term 'adversely affect the standards' refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards
for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and
excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/ AICTE.
xxxxx
(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply
or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria
fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is
not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of higher education is maintained.
 (iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions,
keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total
number of seats available in the state and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to
continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.
This court further held:
No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are
unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher
education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond
the purview of judicial review, unless it is established that such standards are arbitrary or 'adversely affect' the standards, if any, fixed by the Central Body under a
Central enactment. The order of the Division Bench is therefore unsustainable.
It is not in dispute that as per the scheme of AICTE [vide clause 6.1 (b)] to seek lateral entry to an engineering degree, the candidate must have passed the
diploma in engineering in the relevant branch with a minimum of 60% marks in the aggregate. The said clause also provides that the selection of candidates will be
based on the entrance test, the merit ranking in the test being the basis of admission. As per the Lateral Entry Scheme of the State Government, the additional
requirement is that the candidates should also secure minimum of 20% marks in the entrance test. In view of the decision in Krishnendu Halder (AIR 2011 SC 1429:
2011 AIR SCW 2180) (supra), the contentions of the appellant will have to be accepted and the decision of the High Court is liable to be set aside.â€
Therefore it is clear that merely because there are unfilled seats in a particular year, the Managements are entitled to admit students by their own
volition. It is clear from the prospectus that a rank list is to be drawn by the Commissioner of Entrance Examinations on the basis of marks secured by
the students in the qualifying examinations, and from there alone, the admissions would have to be made by the colleges. In fact the said procedure
was followed by the Management / colleges and admitted students from the rank list prepared. But later they have filled up seats by their own
selection procedure overlooking the provisions of the prospectus after the list and the supplementary list were exhausted, and probably after the
extended cut off date during which period the Commissioner of Entrance Examinations has drawn up a supplementary list of 8 qualified students.
Which thus also means during the extended period no qualified students other than the eight students applied. Therefore none of the authorities vested
with power to make the admission had occasion to verify the credentials of the students in accordance with eligibility and merit.
On an analysis of the provisions of the prospectus and the judgments discussed above, it is clear that the Managements / colleges were duty bound
to admit only students from the list or supplementary list drawn up by the Commissioner of Entrance Examinations. Also the apex court considered
whether the minorities rights to establish and administer educational institution of their choice will include the procedure and method of admission and
selection of students, where the Hon’ble Apex Court held that a minority institution may have its own procedure and method of admission, as well
as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges
should be on the basis of merit. It was further held that the procedure adopted or selection made should not tantamount to maladministration and even
an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges
aforesaid, as in that event, the institution will fail to achieve excellence.
Therefore taking into account the aforesaid legal principles and intrinsic factual aspects, we have no hesitation to hold that admissions made by the
Managements / colleges by their own volition, giving a go by to the meritorious students and outside the list prepared by the Commissioner of Entrance
Examinations under any circumstances, are totally illegal, arbitrary and unjustified, which if perpetrated, would lead to disastrous consequences,
including the dilution of educational standards in the B. Tech course.
That apart, Learned Single Judge was also of the view that the consensual agreement executed by the Managements during October 2020 to
conduct the admissions of 1st year B. Tech course was not only for the purpose of the B. Tech regular course but also to the lateral entry, and that
will enable the Government to saddle the Managements from admitting students in the B. Tech Lateral Entry Course outside the agreement
conditions.
In our considered view, the agreement makes it clear that the agreement is entered into by and between the State Government and the
Management colleges and therefore whatever course conducted by the Managements during the particular academic year would be guided by the
agreement. An agreement was made available for our perusal and from that it is clear that 90 member colleges of the Association, i.e. the educational
agency or educational agencies of colleges or member colleges are included in the list incorporated in the agreement. It is clear that the Government,
the Association and the Management of the member colleges listed in the agreement have arrived at a consensus to fulfill the objective by entering
into an agreement for the academic year 2020-21, in accordance with the terms and conditions contained in the agreement. It is also clear from the
agreement that the Government as well as the Private Self-Financing Engineering College Managements have understood that the Government has
entered into the agreement, desirous of ensuring admission to 50% seats in Private Self-Financing Engineering Colleges from the list of students who
have qualified themselves in the common entrance test conducted by the Commissioner for Entrance Examinations, in accordance with merit and
complying with the principles of reservation in Government Engineering Colleges.
Therefore, it cannot be said that the agreement executed by and between the State Government and the educational agencies would not take in
the Lateral Entry Course and if that was the situation, there would have been a specific exclusion of the Lateral Entry Course from the agreement
executed by and between the parties. To put it otherwise, the learned Single Judge was right in holding that the agreement executed by the
Government and the Management is binding on the Management in regard to the Lateral Entry admissions also.
Even though contentions are advanced for and on behalf of the NRI students relying upon the Government Order referred above, we are of the
considered opinion that, that is a general order issued by the Government for admissions of the NRI students, however, when a prospectus was issued
by the State Government specifically for dealing with Lateral Entry admissions, we are of the view that it displaces the Government order referred
and the conditions and the provisions of the prospectus would strictly apply to the NRI students also.
Similar is the situation with the vacant seats available with the educational agencies in the regular B. Tech courses, i.e. to say, merely because
seats are remaining vacant will not enable the colleges to provide admissions since clear prescriptions are made in the prospectus including the seats
that are remaining vacant in the regular 1st year B. Tech course.
Therefore, in our view, the contentions advanced in those regards to get over the provisions of the prospectus can never be sustained under law.
Learned Senior Counsel Sri. Kurian George Kannathanam as well as Sri. S. Krishnamoorthy advanced arguments on the basis of the terminology
“will†used in clause 5.8.
In our opinion, the usage of “shall†and “will†depends upon the degree of the achievement intended by the maker of law in the contextual
circumstances . The dictionary meaning of “shall†and “will†from the Revised 13th Edition of the Chambers Dictionary would make the
situation clear, and further the employment of words, terminology or phrases cannot in any manner dilute or displace the objective and intention of the
Government in issuing the prospectus:- Â
“shall /shal or shal/ vt (no participles; 2nd pers sing (archaic) shalt; 3rd pers sing shall; pat should /shud or shad/; 2nd pers sing (archaic) shouldest or shouldst)
orig expressing debt or moral obligation, now used with the infinitive of a verb (without to) to form (in sense) a future tense, expressing in the first person mere
futurity (as will¹ does in the second and third), in the second and third implying also promise, command, decree, or control on the part of the speaker (rules for the
use of shall and will are often ignored); must, will have to, is to, etc (in 2nd and 3rd persons, and interrogatively 1st); may be expected to, may chance to, may well (in
all persons); may in future contingency, may come to (in all persons). [OE sculan, prt sceal, scealt, sceal; pat sceolde; cf Ger soll, Gothic skal, ON skal]
“will¹/ wil/ V (2nd pers sing present indicative (with thou; archaic) wilt; 3rd pers will; pat would / wud/; 2nd pers sing (with thou; archaic) wouldst; no pap) used
with an infinitive or absolutely: esp in 2nd and 3rd pers to form a future tense (shall often being used in 1st pers); in 1st pers to express intention or determination; to
make requests, issue commands, or invite; to indicate capacity, as in the car will seat six; to suggest willingness or readiness on the part of someone or something, as
in the car will not start; to express assumptions; to wish, desire or want, as in say what you will; to express resignation or frustration at events, another's perversity,
etc. [OE wyllan, willan to wish, to be willing]â€
It is so well settled that “Every Rule or provision of law†has to be interpreted in its literal, terminological and etymological sense and ascribe
ordinary meanings as could be gathered from the entire provisions of the Rules. The well settled doctrine of the Golden Rule of Construction, is to
read the statutory language grammatically and terminologically in the ordinary and primary sense which it bears in its context without omission or
addition. Which thus means the natural and ordinary meaning cannot be departed from by giving interpretations to suit the convenience of the litigants.
As we have pointed out above, the intention and the objective of the Government by issuing the prospectus was to make a common admission
process so as to maintain the standard of education in the technological education sphere, and it was with the intention that the All India Council of
Technical Education has in its Admission Handbook and circular issued, prescribed the eligibility criteria.
It is undisputed that it is due to the pandemic Covid â€" 19 that entrance examinations could not be conducted to draw up the rank list, however, a
procedure had to be adopted in order to tide over the situation to provide admissions to the students ,in the best suited and possible manner, and that is
how the State Government had decided to prepare a rank list on the basis of the marks secured by the students in the respective qualifying
examinations which cannot be found fault with.
Taking into account all the above aspects, we have no hesitation to hold that appellants have not made out any case for interference with the common
judgment of the learned Single Judge. Upshot of the above discussion is that appeals fail and accordingly they are dismissed.