(2012) 236 KLR 804 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933 WP(C).No. 23695 of 2011 (J) --------------------------------------- PETITIONER: ------------------- COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY.P.O., KALAMASSERY, KOCHI-22. BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY,S.C, SRI.P.M.A.KALAM,S.C. RESPONDENTS: ------------------------ 1. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, REPRESENTED BY ITS MEMBER SECRETARY, INDIRA GANDHI SPORTS COMPLEX, IP ESTATE, NEW DELHI, PIN-110 002. 2. THE DIRECTOR, SOUTH WEST REGIONAL OFFICE, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, P.K.BLOCK, PALACE ROAD, BANGALORE, PIN-560 009. R1 & R2 BY SRI.S.KRISHNAMURTHY,S.C, A.I.C.T.E. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2012, ALONG WITH W.P.(C).NO. 23978/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.23695/2011-J: APPENDIX PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S.SIRI JAGAN, J. ================== W.P.(C).Nos.23695 & 23978 of 2011 ================== Dated this the 13th day of February, 2012 J U D G M E N T In these two writ petitions, The Cochin University of Science and Technology and students, who aspire for admission to the engineering course in a college affiliated to the Cochin University of Science and Technology, challenge the orders of the AICTE reducing the intake of students in that college to the Engineering Degree Programme. In these writ petitions, a learned Judge of this Court passed the following order in both these writ petitions on 5.9.2011; 'WP(C) No.23978/11 Sri.Krishna Murthy, Standing counsel takes notice for R1 and R2. Sri.S.P.Aravindakshan Pillai, standing counsel takes notice for R3 and R4. W.P.(C) Nos.23695 & 23978 of 2011 2. In these writ petitions, the challenge is against order dated 4/8/2011 passed by the AICTE reducing the students intake in the various disciplines of Engineering courses in the Cochin University College of Engineering, Kuttanad established by the Cochin University of Science and Technology. 3. In WP(C) No.23978/11, the main contention raised by the counsel for petitioners is that the College, being one established by the Cochin University of Science and Technology, is outside the purview of the AICTE. This submission is sought to be supported by relying on Section 2(h) of the AICTE Act, 1987 and the principles laid down by the Apex Court in Bharathidasan University v. All India Council for Technical Education, (2001) 8 SCC 676. 4. On the other hand, standing counsel appearing for the AICTE conteded that the colleges of technical education in the country, irrespective of whether it is established by a University or not, are bound to adhere to the standards specified by the AICTE. In support of this plea, learned standing counsel relied on a Division Bench judgment of this Court in University of Calicut v. N.C.T.E., 2004 KHC 771 and the Apex Court Judgment in All India Council for Technical Education v.Surinder Kumar Dhawan and others, (2009) 11 SCC 726. 5. I have considered the submissions made. Prima facie, I am inclined to agree with the learned counsel for the petitioners in WP (C) No.23978/11. Section 2(h) of the AICTE Act defines Technical Institution and this section reads as under: "(h) "technical institution" means an institution, not being a University which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;" 6. Interpreting Section 2(h) and various other provisions of the AICTE Act and the UGC Act, in the Bharathidasan University's case (supra) {2001(8) SCC 676}, it has been held by the Apex Court thus:- To put it in a nutshell a reading of S.10 of AICTE Act will make it clear that whenever the Act omits to cover a 'University', the same has been specifically provided in the provisions of the Act. For example, while under clause (k) of S.10 only 'technical institutions' are referred to, clause (o) of S.10 provides for the guidelines for admission of students to 'technical institutions' and 'Universities' imparting technical education. If we look at the definition of a 'technical institution' under S.2(h) of the Act, it is clear that a 'technical institution' cannot include a 'University'. The clear intention of the Legislature is not that all institutions whether University or otherwise ought to be treated as 'technical institutions covered by the Act. If that was the intention, there was no difficulty for the Legislature to have merely provided a definition of 'technical institution' by not excluding 'University' from the definition thereof and thereby avoided the necessity to use alongside both the words 'technical institutions' and University in several provisions in the Act. The definition of 'technical institution' excludes from its purview a 'University'. When by definition a 'University' is excluded from a 'technical institution', to interpret that such a clause or such an expression wherever the expression 'technical institution' occurs will include a 'University' will be reading into the Act what is not provided therein. The power to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned is covered by S.10(k) which would not cover a 'University' but only a 'technical institution'. If S.10(k) does not cover a 'University' but only a 'technical institution', a regulation cannot be framed in such a manner so as to apply the regulation framed in respect of 'technical institution' to apply for Universities when the Act maintains a complete dichotomy between a 'University' and a 'technical institution'. Thus, we have to focus our attention mainly to the Act in question on the language adopted in that enactment. In that view of the matter, it is, therefore, not even necessary to examine the scope of other enactments or whether the Act prevails over the University Act or effect of competing entries falling under Entries 63 to 65 of List I vis a vis Entry 25 of List III of the Seventh Schedule to the Constitution." 7. Thus, it is obvious that the Apex Court has understood Section 2(h) as one excluding colleges established by the Universities from the purview of the AICTE Act itself. 8. In so far as the judgments relied on by the learned counsel for the AICTE is concerned, the first one is University of Calicut v. N.C.T.E., 2004 KHC 771. This was a case dealing with the provisions of the National Council for Teacher Education Act, 1993. In that case, the University of Calicut contended that in view of the Apex Court Judgment in Bharathidasan University's case (supra), training colleges established by the University are outside the purview of the NCTE Act That contention was dealt with by a Division Bench in para 7 of the judgment and the relevant portion of which reads as under:- "With regard to the petitions files by the University, the contention of the university is that the University centres where Teacher Education Courses are being offered need not follow NCTE regulation cannot be accepted at all. A University which is bound to maintain standards in educational institutions cannot dilute the norms and say that centres run by it need not have necessary minimum infrastructures and educational standards. In fact, this attitude of the Universities makes the degrees granted by it worthless and degenerates educational standards. The legal contention raised by the University is that University centres impart teacher training course are not 'institutions' as defined in the act as University is separately defined and the provisions under the Act are not applicable to governing University Centres where teacher education is offered. Their contention is based; on the Supreme Court decision in Bharathidasan University v. All India Council for Technical Education, AIR 2001 SC 2861. But that argument also cannot stand. In the above case the Supreme Court has considered the definition of "technical institution" as defined under All India Council for Teachers Education Act, 1987. Technical Institution was defined under S.2(h) of the Act as follows; "technical institution" means an institution, not being a University which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions." (underlining for emphasis) Therefore, it can be seen that Universities were specifically excluded from the definition under that Act. Here in the definition of "institution" under S.2(e) of the NCTE Act the Universities were not specifically excluded. Therefore, Universities are also included in the term "institution". 9. A reading of the Judgment shows that the Division Bench has held that in so far as the training colleges are concerned, the judgment in the Bharathidasan University's case has no relevance. Therefore, this judgment and the principles laid down by the Division bench in the aforesaid case are of no assistance to the AICTE. 10. Leaned Counsel then relied on the judgment in All India Council for Technical Education v. Surinder Kumar Dhawan and others, (2009) 11 SCC 726 and contended that even colleges established by the University are bound to adhere to the AICTE standards. This judgment dealt with the case of technical education by name YMCA Institute of Engineering. From this itself it is obvious that such an institution is not one established by a University, unlike in the case of Cochin University College of Engineering, Kuttanad. Therefore, this judgment also does not help AICTE to contend that the principles laid down in the Bharathidasan University's case have been diluted or varied in any manner. For the aforesaid reasons, prima facie the College being one established by the Cochin University of Science and Technology, is outside AICTE, and if so, the order dated 4/8/2011 issued by the AICTE is illegal and cannot be enforced. 11. Be that as it may, this is a case where the University itself has chosen to obtain approvals from the AICTE from the inception. Although I have prima facie agreed with the contentions of the petitioners in WP(C) No.23978/11 that the colleges established by the University are outside the purview of AICTE, it is for the University to decide whether they are still opting to be under the coverage of the AICTE and proceed with admission complying with the directions issued by the AICTE.' 2. The AICTE took up the matter in appeal before a Division Bench of this Court in W.A.No.1472/2011, in which, the following judgment was passed: "The appellant herein was the respondent before the learned Single Judge and the learned Single Judge by order dated 5.9.2011 made a common interim order in W.P(C).Nos. 23695 and 23978 of 2011, wherein there is a clear direction that it is for the University to decide whether they are still opting to be under the coverage of the AICTE and proceed with the admission complying with the directions issued by the AICTE. 2. The statement filed by the Standing Counsel for the University Council, especially in paragraph 3, indicates that the University intends to have the coverage of AICTE and proceed with the admission complying with the directions issued by the AICTE. If that be so, nothing remains for us to interfere with the present matter. It is between the University and the students to proceed with the matter for the academic year 2011-2012. It is not for this Court to say what would the outcome of the admissions, if any, made by the University as submitted by the appellants' counsel. The Writ Appeal is, therefore, dismissed." I am of opinion that the interim order and the judgment of the Division Bench in the writ appeal practically dispose of these writ petitions themselves. Accordingly, these writ petitions are disposed of in terms of the interim order and the judgment in the writ appeal. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge |
