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Judgment
P.N. Ravindran, J.—The Thangal Kunju Musaliar Institute of Technology, Kollam, a private Engineering College in the self-financing sector, hereinafter referred to as the ''Institute'' for short, is the petitioner in this writ petition. It is an institution recognised by the Cochin University of Science and Technology, hereinafter referred to as the ''University'' for short, u/s 6 (ii)of the Cochin University of Science and Technology Act, 1986, hereinafter referred to as the ''Act'' for short.
The Institute which has the approval of the All India Council for Technical Education, hereinafter referred to as the ''AICTE'' for short, is conducting B.Tech. degree courses in different branches of Engineering. The sanctioned strength for the B.Tech. degree course in Electronics and Communication Engineering is 60. In view of the facilities existing in the Institute and the demand from the student community, the Institute applied to the AICTE for increasing the intake of students in the said course from 60 to 120. The Institute also applied for starting M.Tech. degree courses in Electronics and Communication Engineering, VLSI & Embedded Systems, Computer Science and Engineering and Software Engineering for the academic year 2009-2010. It is stated that M.Tech. degree course in VLSI and Embedded Systems is a course offered for study in Model Engineering College, Thrikkakara, yet another institution recognised by the University.
Acting on the application submitted by the Institute, the AICTE inspected the Institute and taking note of the facilities existing in the Institute, decided to grant approval for increasing the intake of students for the B.Tech. degree course in Electronics and Communication Engineering from 60 to 120 for the academic year 2009-2010. The AICTE also granted approval for the M.Tech. degree course in VLSI and Embedded Systems with an intake of 18 students as can be seen from Ext.P1 produced along with writ petition. After such approval was granted by the AICTE, the Institute requested the University by submitting Exts.P2 and P3 letters for sanction to increase the intake of students for the B.Tech. degree course in Electronics and Communication Engineering from 60 to 120 for the academic year 2009-2010 and for starting the M.Tech. degree course in VLSI and Embedded Systems during the academic year 2009-2010. Along with Exts.P2 and P3 letters, copies of Ext.P1 were also enclosed.
The Syndicate of the University that met on 22.7.2009 and 1.8.2009 considered the request made by the Institute and other institutions and decided to decline the requests of managements of private colleges for starting new courses or for enhancement of seats. Unaware of that decision, the Institute filed W.P.(C) No. 23582 of 2009 in this Court seeking various reliefs. When the said writ petition came up for hearing, it was brought to the notice of this Court that the Syndicate that met on 1.8.2009 has already taken a decision not to grant recognition for new courses or for enhancement of seats in private colleges. The said writ petition was thereupon closed reserving liberty with the petitioner to challenge the decision of the Syndicate in other appropriate proceedings. This Court also directed that a copy of the decision taken by the Syndicate should be furnished to the Institute before 26.8.2009. A copy of the decision was accordingly furnished to the Institute and it is produced along with this writ petition as Ext.P4. This writ petition was thereupon filed on 24.8.2009 challenging Ext.P4 and seeking the following reliefs:
(i) Issue a writ of certiorari calling for the records leading to Ext.P4 and to quash the same;
(ii) Issue a writ declaring that the decision as reflected in Ext.P4 is vitiated and bad for not considering the application on its merits and considering the nature of the course, the body which gave the approval and the corresponding duty of the university in granting the recognition;
(iii) Issue a writ declaring that the decision as reflected in Ext.P4 in so far as it affect the petitioner is discriminatory, selective and violative of Article 14 of the Constitution of India;
(iv) Issue a writ declaring that in the light of the approval given by AICTE for the increased intake and sanctioning new course the respondent university is statutorily obliged to grant recognition enabling the petitioner to commence the course during the academic year 2009-2010.
The petitioner contends that as the AICTE has granted approval for increasing the intake of students for the B.Tech. degree course in Electronics and Communication Engineering from 60 to 120 and also for starting M.Tech. degree course in VLSI and Embedded Systems with an intake of 18 students, the University is bound to grant recognition. It is contended that the Institute has the necessary infrastructure, facilities and other requirements prescribed by the AICTE and that the University could not have taken a decision ignoring the approval granted by the AICTE, to decline requests from managements of private colleges for recognising new courses or for enhancement of seats in existing courses. It is contended that the University is bound to take a decision on the merits of the application and that it cannot discriminate between private self-financing colleges and self-financing colleges in the Government sector. As regards the post- graduate degree course newly approved by the AICTE, it is contended that the said course is being conducted in Model Engineering College, Thrikkakara which is an Institution recognised by the University and therefore, as an approved syllabus is in existence, all that the Institute is required to do is to follow the approved syllabus. On these grounds, the Institute seeks recognition for the increased intake of students and for the new course approved by the AICTE for the academic year 2009-2010 in order to enable the Institute to commence the said courses during the current academic year.
The respondents have filed a counter affidavit It is contended that as per Ext. R1(a) rules issued by University order dated 24.6.2009, a no objection certificate from the Government of Kerala is required for starting new courses or for enhancement of intake of students and that the last date for submission of requests for recognition is 31st day of March prior to the commencement of the academic year for existing courses and 28th February for new courses. It is also contended that Ext.R1 (a) was circulated to Principals of all recognised colleges along with Ext.R1 (b) University order dated 24.6.2009, wherein, the fee to be paid as decided by the Syndicate of the University at its meeting held on 30.12.2008 was also set out. The respondents contend that the Institute has not submitted any request for recognition of increased intake of students and for recognition of the new course in terms of Ext.R1 (a) rules and Ext. R1 (b) University order. In the counter affidavit it is however admitted that the Institute had sent letters on 2.10.2008 to the Principal Secretary to Government, Higher Education Department seeking increase in the intake of students for the B.Tech. degree course in Electronics and Communication Engineering from 60 to 120 and for starting M.Tech. degree course in VLSI and Embedded Systems with an intake of 18 students. It is admitted that along with the said letters, copies of the application submitted by the Institute to the AICTE were also enclosed. Though copies of the said letters are in the files, the University contends that a formal request from the Institute was received only on 29.6.2009. As regards the institutions run by CAPE and IHRD, it is stated that they had applied with necessary documents evidencing approval by the AICTE and the Government before 31.3.2009 and therefore, there is no discrimination as alleged by the Institute. It is also contended that the petitioner is entitled to approval for starting a new course and for additional intake of students only if, after inspection by the Committee appointed by the Syndicate of the University, the Syndicate is satisfied that the Institute is entitled to such approval. It is also contended that since classes in similar courses in the University and in other recognised institutions have already started in July, 2009, recognition cannot be granted at this stage.
I heard Sri. George Poonthottam, the learned Counsel appearing for the petitioner and Sri. P. Chandrasekhar, the learned Counsel appearing for the University. I have also perused the relevant files which were made available to me. The University does not dispute the fact that the AICTE has granted approval for increasing the intake of students for the B.Tech. degree course in Electronics and Communication Engineering from 60 to 120 and also for starting the M.Tech. degree course in VLSI and Embedded Systems with an intake of 18 students during the academic year 2009-2010. It is also evident from Ext.P4 that before declining to grant recognition u/s 6 (2) of the Act, no inspection was conducted or caused to be conducted by the Syndicate of the University. The Syndicate of the University however decided to decline the request given by managements of private colleges for starting new courses and for enhancement of seats, while it took a different stand in the case of new courses/increase in intake of students in existing courses in colleges managed by CAPE and IHRD. In my opinion, such a stand cannot be countenanced. The University, which was established to promote graduate and post-graduate studies and advanced research in applied science, technology, industry, commerce, management and social science, cannot in my opinion discriminate among recognised institutions in the private sector and those run by the Government or its agencies and instrumentalities. The petitioner in this writ petition is an Institute recognised by the University. The institutions run by CAPE and IHRD are also recognised institutions. They are also entitled to start new courses or increase the intake of students in existing courses only with the approval of the AICTE. The fact that the AICTE has granted such approval is not disputed. The decision taken by the Syndicate of the University that notwithstanding such approval it will not grant recognition to institutions in the private sector for starting new courses or for enhancement of seats in existing courses, smacks of arbitrariness and is evidently rested on extraneous and irrelevent considerations.
I shall now deal with the question whether rule (6) of Ext. R1 (a) governs the request made by the Institute for recognition of the M.Tech. degree course in VLSI and Embedded Systems and for additional intake of students in the existing B.Tech. degree course in Electronics and Communication Engineering. Paragraphs 5 and 6 of Ext.R1 (a) reads as follows:
(5) Last date for issue of application form for new colleges and their receipt will be 31st March prior to the Academic Year. (6) Requests for new courses and for increase in intake of existing courses will be considered, provided such requests are submitted along with NOC from the Government of Kerala and approval letter from the AICTE (or the concerned Apex body). If Government of Kerala/National Level Apex Body concerned insist for NOC from the University as a precondition for their approval, the University may issue NOC subject to the specific condition that such NOC is conditional and for the sole purpose of obtaining their approval only and by itself does not guarantee University approval. But requests for new courses, which are not presently offered by the University, will be considered only if sufficient time is available for framing rules and regulations of admission and scheme and syllabus of examination by the Academic Bodies concerned. Last date for receipt of such requests will be 31st March prior to the commencement of the Academic year for existing courses and 28th February for new courses. In the case of new courses, 5 copies of draft rules and regulations of admission and scheme and syllabus of examination of the new course for which approval is sought are also to be submitted.
It is evident from a reading of Rule 5 that the stipulation therein relates only to new colleges. Therefore, Rule 5 cannot apply to the case on hand. Rule 6 stipulates that requests for new courses and for increase in intake of students in existing courses will be considered, provided such requests are submitted along with a no objection certificate from the Government of Kerala and approval letter from the AICTE or from the concerned apex body. It is also stipulated that requests for new courses which are not presently offered by the University will be considered only if sufficient time is available for framing rules and regulations of admission and scheme and syllabus of examination by the academic bodies concerned. In relation to such new courses, it is also stipulated that the last date for receipt of requests will be 31st March prior to the commencement of the academic year for existing courses and 28th February for new courses. Rule 7 stipulates that recognised institutions have to remit inspection fee, annual recognition fee and other fees as applicable from time to time to the University, on demand. A reading of Ext.R1 (a) indicates that the rules therein apply to all recognised institutions. The rules do not make a distinction between institutions in the private sector and institutions run by the Government or its agencies like CAPE or IHRD.
The first limb of Rule 6 stipulates that requests for starting new courses and for increase in intake of students in existing courses will be considered, provided such requests are submitted along with a no objection certificate from the Government of Kerala and approval letter from the AICTE. The Apex Court has in Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, held, following an earlier decision of the Apex Court in State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, that a provision requiring the approval of the State Government would be repugnant to Section 10(k) of the All India Council for Technical Education Act, 1987 and hence void. It was held that the University cannot impose any condition inconsistent with the AICTE Act or the regulations or the conditions imposed by the AICTE for the purpose of grant of affiliation and that conditions which can be imposed by the University cannot be inconsistent with the provisions of the Central Act, namely, the All India Council for Technical Education Act, 1987. The Apex Court held in unambiguous terms in Jaya Gokul Educational Trust''s case (supra) that the Kerala University or Mahatma Gandhi University cannot seek the approval of the State Government for grant of affiliation and that even if the University Statutes require such approval, it would be repugnant to the AICTE Act. From the authoritative pronouncement of the Apex Court in the aforesaid decisions, it has to be necessarily held that the stipulation in Ext.R1 (a) that a no objection certificate from the State Government should be produced for grant of recognition to start a new post-graduate course and for additional intake of students in an existing course in a recognised institution is repugnant to the provisions of the AICTE Act and is void and unenforceable.
As noticed earlier, Rule 6 of Ext.R1 (a) inter alia stipulates that requests for new courses which are not presently offered by the University will be considered only if sufficient time is available for framing rules and regulations of admission and scheme and syllabus of examination by the academic bodies concerned. It is not in dispute that the B.Tech. degree course in Electronics and Communication Engineering offered in the Institute, is a recognised course. The syllabus for the B.Tech. degree course in Electronics and Communication Engineering is one already approved by the University. The request of the University is only to allow enhancement of the student strength from 60 to 120 which has been approved by the AICTE. Therefore, it cannot be stated that the B.Tech. degree course in Electronics and Communication Engineering is a course which is not presently offered by the University. Likewise, it is not in dispute that the M.Tech. degree course in VLSI and Embedded Systems is an existing course which is offered for study in Model Engineering College, Thrikkakara, an institution recognised by the University. Therefore, the M.Tech. degree course in Embedded Systems also cannot be said to be a course which is not presently offered by the University.
I shall now turn to the stipulation in Rule 6 regarding the last date for submission of applications. The stipulation reads as follows:
The last date for receipt of such requests will be 31st March prior to the commencement of the Academic year for existing courses and 28th February for new courses.
It is not in dispute that prior to the issuance of the University order dated 24.6.2009, Ext.R1 (a) had not been issued or communicated to Principals of recognised institutions. It is evident from Ext.R1 (b) that Ext.R1 (a) Rules was approved by the Syndicate of the University only on 13.5.2009. In my opinion, it would be plainly arbitrary to insist that a rule which was approved only on 13.5.2009 should be complied with, with retrospective effect. Ext.R1 (a) was communicated to Principals of recognised institutions only along with Ext.R1 (b) order dated 24.6.2009. It is impossible for any Institute seeking recognition for a new course which is presently offered by the University, to seek approval for starting a new course for the current academic year 2009-2010 by submitting an application before 28.2.2009 or 31.3.2009, since the last date was stipulated only long thereafter and made known to the Institute still later. Further, it is evident from the files that as early as in October, 2008, the Institute had addressed the Registrar of the University and informed him that they have applied to the AICTE seeking approval for new courses and for increasing the intake of students in an existing course. The University was therefore aware that the Institute has moved the AICTE seeking such approval. The University ought to have in my opinion, as a public authority, informed the Institute that it must make a formal application for the grant of recognition. The Institute is not a stranger to the University. It is a recognised Institution which was granted recognition after inspection. Many years have passed after such recognition was granted. The University has no case that the facilities in the College are inadequate or that the conditions prescribed by the AICTE have not been fulfilled. In such circumstances, I am persuaded to hold that the University cannot be heard to contend that the Institute did not apply within time. As regards payment of fee, it is evident from Rule 7 of Ext. R1 (a) that the fee has to be paid on demand. The University has no case that fee was not paid notwithstanding a demand. The institutions run by CAPE and IHRD have also not submitted formal applications for recognition, apart from sending letters. They have also not paid any fee before 31.3.2009. In fact, it is evident from the files that there was no inspection also before the Syndicate decided to grant recognition for new courses and for increased intake of students in existing courses in the institutions run by CAPE and IHRD. I accordingly hold that the decision taken by the Syndicate of the University in Ext.P4 declining the request made by the Institute to grant recognition for the M.Tech. degree course in VLSI and Embedded Systems and for enhanced intake of students for the existing B.Tech. degree course in Electronics and Communication Engineering, cannot be sustained.
The Institute has admittedly entered into a seat sharing agreement with the Government. As per the terms of the said agreement, seats that remain vacant in the 50% quota surrendered to the Government can be filled up by the management themselves after 14.8.2009. Since the University did not grant recognition, no allotment could have been made by the Government to the additional seats sanctioned for the B.Tech. degree course in Electronics and Communication Engineering or for the M.Tech. degree course in VLSI and Embedded Systems if the said course is also taken in by the seat sharing agreement. In my opinion, the Institute has a duty, notwithstanding the last date fixed in the seat sharing agreement, to surrender to the Government, 50% of the additional seats sanctioned by the AICTE in respect of both these courses, if both courses are covered by the said agreement, to the Government so that the Government can make allotment to seats before 31.10.2009.
For the reasons stated above, I allow this writ petition, quash the decision taken by the Syndicate of the University to decline recognition for additional intake of students in the existing B.Tech. degree course in Electronics and Communication Engineering and the newly introduced M.Tech. degree course in VLSI and Embedded Systems in Thangal Kunju Musaliar Institute of Technology and direct the University to grant recognition in respect of the said courses for the current academic year. This shall be done within one week from today. If the Institute has to pay any fee, the same shall be paid within two days from the date of receipt of a demand in that regard. The Institute shall, notwithstanding the stipulations in the seat sharing agreement, surrender 50% of the seats additionally sanctioned for the B.Tech. degree course and if the seat sharing agreement relates to post-graduate degree courses also, 50% seats in the newly introduced M.Tech. degree course in VLSI and Embedded Systems, to the Government so that the Government can fill up the seats before 31.10.2009. The Government shall, immediately after a copy of this judgment is received, take expeditious steps in that regard and notify the seats for allotment through the Commissioner for Entrance Examinations.
The Registry is directed to communicate a copy of this judgment to the Secretary to Government, Higher Education Department, Government of Kerala, Thiruvananthapuram forthwith.