P.R. Ramachandra Menon, J.
1. 'Can the lapsed seats for Engineering Course in the Merit Quota' be filled up by the Educational Institution, by admitting students who are not qualified in the Entrance Test conducted by the Commissioner for Entrance Examinations is the moot question. Ext.P3 order passed by the second respondent/Admission Supervisory Committee (ASC in short) approving some of the admissions made by the petitioner Institution to the first year B.Tech course 2016-17 while disqualifying 46 students admitted under the 'lapsed seats' in various Engineering Branches, in turn rejecting their candidature and directing the third respondent/Technological University not to register the rejected candidates, is under challenge at the instance of the Educational Institution. Ext.P6 order passed by the third respondent/University giving effect to Ext.P3, also directing the petitioner Institution to ensure that the disqualified candidates are not permitted to write the forthcoming S1-B.Tech examination is also under challenge.
2. The petitioner is running an Engineering College at Adoor and is a member of the Kerala Self Financing Engineering College Management Association (KSFECMA). In respect of the previous year 2015-16, the Association, representing the member Institutions including the petitioner, had entered into an Agreement with the Government, as borne by Ext.P1 for seat sharing. It was stated that the said agreement was to have a validity for three years, till 2017-18 and that 50% of the seats were to be filled up on merit by the Commissioner for Entrance Examinations from the list prepared by him and the remaining 50% was to be filled up by the Management from the students who had cleared the Entrance Examination. But the said Agreement came to be replaced for the year 2016-17 as per Ext.P1 (a) Agreement dated 28.06.2016 executed between the Management Association and the Government. The petitioner, being a member of the Association, is placed at Sl.No.49 in Ext.P1(a). Prior to Ext.P1(a) Agreement, a Government Order had been passed which provided for doing away with the practice of admitting students by the Management from the prenormalised list. Validity of the said G.O, was subjected to challenge by the Association of Self Financing Colleges in W.P.(C) 23829 of 2016, wherein interference was declined and the writ petition was dismissed as per judgment reported in 2016(5) KHC 139 (DB) (Kerala Self Financing Engineering College Managements' Association (KSFECMA) vs. State of Kerala and Another).
3. Coming to the factual data, altogether 300 seats are available in the petitioner's Institution for the first semester B.TEch under 'five' different disciplines. Among the total 300 seats, pursuant to Ext.P1(a)agreement, 150 seats were to be filled up by the Commissioner for Entrance Examinations and the remaining 150 were seats were set apart to the Management which included 15% NRI Quota as well. As a matter of fact, the Commissioner for Entrance Examinations forwarded names of only '69' candidates, thus leaving out '81' seats under the 'Merit Quota' to remain vacant. In the said circumstance, the petitioner Institution gave admission to 46 students who were having the basic qualification as stipulated by the AICTE to make them eligible to apply and to obtain admission ( possessing 45% marks in the 'Plus Two level') and having the subject requirements as specified. According to the petitioner, out of the total 300 seats, only 225 seats could be filled up and the remaining 75 seats were remaining unfilled. The last date stipulated for admissions was on 15.08.2016. But since the petitioner Institution had not submitted the particulars of the students admitted before the ASC, a letter dated 22.08.2016 was issued by the ASC. On receipt of the said letter, particulars of the candidates admitted were made available as per Ext.P2 dated 07.09.2016. After considering the materials, the Admission Supervisory Committee issued Ext.P3 order dated 04.11.2016 disqualifying 46 students admitted in the 'lapsed seats', on the ground that they were not qualified in the Entrance Test. The Technological University was directed not to register the disqualified students, which led to issuance of Ext.P5 Show-Cause Notice giving an opportunity to explain the position. According to the petitioner, without waiting for a reply, the third respondent University issued Ext.P6 order, whereby the petitioner was directed not to permit the disqualified students to appear for the S-1 Examinations. According to the petitioner, Ext.P3 order passed by the ASC and Ext.P6 order passed by the University are not correct or sustainable in law and hence the challenge.
4. A statement has been filed on behalf of the second respondent/ASC pointing out the facts and figures and producing some documents as Annexures R2(1) to R2(3). The petitioner has filed a reply affidavit as well; producing a copy of the reply dated 13.12.2016 (stated as given to the University in response to Ext.P5) as Ext.P7.
5. Heard Mr. Bechu Kurian Thomas, the learned Senior counsel appearing for the petitioner; Smt. Mary Benjamin, the learned Standing Counsel for the ASC, Shri P. Krishnamoorthy the learned Standing Counsel for the AICTE as well as for the University and the learned Sr. Govt. Pleader appearing for the State.
6. The contentions of the petitioner, as put forth by the learned Sr. Counsel, are mainly two fold. Firstly that, no opportunity of hearing was given to the petitioner before passing Ext.P3 and hence there is violation of the principles of Natural Justice. The second contention is that Ext.P3 order passed by the second respondent is not liable to be treated as an order passed by the Committee under the Act 19 of 2006, the same having been signed by the Chairman alone and not by the Committee. The Admission Supervisory Committee as defined under Section 2(a) of the Act and constituted under Section 4(1) of the Act consists of 6 persons as mentioned therein and this being the position, the order passed solely by the Chairman, virtually amounts to usurpation of powers and hence is liable to be interfered by this Court. Though the statute does not contemplate any 'Quorum' for convening the Committee to transact the business, it is stated that, in the absence of any such stipulation, the decision of the Committee, to be valid, shall be taken by simple majority . Reliance is sought to be placed on the verdicts passed by the Apex Court in AIR 1976 SC 1739 (Ram Bharosey Agarwal vs. Har Swarup Maheshwari). It is contended that the verdict passed by the Division Bench of this Court in W.P.(C)No.17328 of 2014 holding similar order as correct, by virtue of the specific provisions in the Statute, particularly Section 4(2) and 5(3) of the Act, is contrary to the law declared by the Supreme Court in AIR 1976 SC 1739 (cited supra), which was omitted to be noted. Relying on the observations made by the Constitution Bench of the Apex Court in (2016 )5 SCC 1 (Supreme Court Advocates-On-Record Association vs. Union of India)(Para 395), it is contended that the verdict passed by the Division Bench of this Court in W.P.(C) No.17328 of 2014 requires reconsideration.
7. According to the petitioner, as per the AICTE norms, a candidate having 45% or above marks in the 'Plus Two level is entitled to get admission for the Engineering Course and that the petitioner has admitted only such students who were having 45% or more marks in the 'Plus Two level' examinations. It is also pointed out that, since the Commissioner for Entrance Examinations had allotted only '69' students (out of the State Merit quota of 150), the remaining seats were lying vacant, which would be detrimental to the very existence of the Institution. It was accordingly, that '46' lapsed seats were filled up by candidates, who had obtained 45% or more marks in the 'Plus Two level' and such exercise is stated as permissible in law as per the ruling rendered by the Supreme Court in 1995 (4) SCC 104 (State of T.N. and another vs. Adhiyaman Educational & Research Institute and others).
8. Ms. Mary Benjamin, the learned Standing Counsel for the Admission Supervisory Committee submits that the idea and understanding of the petitioner is thoroughly wrong and misconceived. Making a reference to the law declared by 'three member Bench' of the Supreme Court in 2004 (4) SCC 513 (State of T.N. and another vs. S.V.Bratheep), a subsequent Bench of the Apex Court, as per the decision in (2011) 4 SCC 606 = AIR 2011 SC 1429 (Visveswaraiah Technological University and another vs. Krishnendu Halder and others) held that the law laid down in 1995(4) SCC 104 (cited supra) was no more good law . It is also pointed out that the Apex Court has made it clear that there is nothing wrong on the part of the State in prescribing higher standards, than the minimum standard prescribed by the AICTE, as held in 2004 (4) SCC 513 (cited supra). Since the admission from the pre-normalised list has been done away with, as per the relevant G.O. issued by the Government and since the challenge raised against the said G.O. has been repelled as per the verdict passed in W.P.(C) No.23829 of 2016, it is quite obligatory to have cleared the Entrance Test for getting admission. Para 16 of Ext.P1(a) agreement executed between the Management of Associations (also representing the petitioner) and para 17 therein make the said position crystal-clear. The petitioner being one of the members of the Management Association, having been placed at Sl.No.49 in Ext.P1(a) agreement, is estopped from taking a Uturn and saying something contrary to the Agreement. Writ petition is liable to be dismissed on this score alone, submits the learned Standing Counsel.
9. With regard to the authority of the second respondent Committee to have passed Ext.P3 order (by the Chairman), it is stated that the issue is covered by the decision rendered by a Division Bench of this Court in W.P.(C)No.17328 of 2014, (the Principal, Karuna Medical College vs. The Admission Supervisory Committee & Fee Regulatory Committee for Professional Colleges of Kerala). The observations made by the Supreme Court as to the necessity to have simple majority, when no quorum is mentioned in the statute, are stated as not applicable to the case in hand, by virtue of the vital difference in the scenario, which in the instant case is governed by specific provisions in the statute, particularly Section 4(2) of the Act, conferring power upon the Committee to decide its own procedure for transaction of business, r/w. Section 5(3) and such other provisions. The verdict passed by the Supreme Court, which is sought to be relied on by the petitioner, was also adverted to and it was thereafter that the verdict was rendered by the Division Bench as above, referring to the resolutions dated 19.02.2007 and 04.07.2013 passed by the Committee, enabling the Chairman to pass appropriate orders on urgency and to get it ratified as specified. The learned Standing Counsel adds that Ext.P3 order passed by the Chairman has been ratified in the next meeting of the Committee and there is no infirmity at all, in any manner.
10. As to the alleged lack of opportunity of hearing, the learned Standing Counsel submits that, even much after the closure of admission, particulars of the students admitted were never uploaded by the petitioner Institution; which made the Committee to issue a notice dated 22.08.2016. It was pursuant to the said notice, that Ext.P2 was submitted by the petitioner on 07.09.2016, (wherein the notice dated 22.08.2016 issued by the Committee had been referred to). Ext.P3 order itself reveals that, on the very date of submission of the reply by the President and Treasurer of the Institution , three different defects were pointed out; the first one with regard to the admission given to 2 students who had not passed 'Mathematics' at Plus Two level (covered by Annexure R2(2)]; the second one pertaining to '46' students who were admitted without passing any entrance test (covered by Annexure R2(1)) and the third one regarding '16' students whose rank list was not uploaded on time in the website [covered by Annexure R2(3)] . With regard to the case of 46 students ( who have not cleared the entrance test), the petitioner had submitted Annexure R2(1) 'complaint' against the Commissioner for Entrance Examinations and the Registrar of the University, stating that there was no illegality in accommodating them against the 'lapsed seats' and in turn, seeking to regularise their admission.
11. After passing the G.O. dated 30.06.2016 and on finding that an 'Agreement' for seat sharing had already been executed, the President and Secretary of the Management Association were contacted by the Committee to cause submission of the Prospectus and Agreement by the member Institutions , which was never submitted or got approved so far. As noted in Ext.P3, the President and Treasurer of the Association met the Chairman of the ASC on 22.09.2016 and requested to exempt submission of the Prospectus for 2016-17 as the 'Agreement' had already been executed and a G.O had been passed based on the said Agreement. It was in the said circumstance, that the scrutiny was confined to verify the validity of admissions, based on the available materials. When the defect pointed out in respect of '16 students' whose results were not uploaded , the position was clarified by the petitioner as per Annexure R2(3) and accordingly, their admission was regularised by the ASC. But with regard to 46 students admitted against the 'lapsed seats', the stand of the petitioner Institution was that, they did not have any other document and still sought to have the admission regularised referring to the factual sequence. This being the position, the plea with regard to denial of opportunity of hearing is quite unfounded, being contrary to the actual facts and circumstances. It is also pointed out by the learned Standing Counsel that in so far as the admission given to the '46' students without passing any test is conceded, how the position could have been improved by the petitioner, is beyond comprehension.
12. Mr. S.Krishnamoorthy, the learned Standing Counsel for the University submitted that at the time of granting the affiliation itself, the petitioner Institution had been alerted that they had to comply with the norms of the AICTE and orders issued by the Government at different points of time; and further that except the candidates who were admitted under the limited extent of 'NRI' quota, all others were required to clear the entrance examination conducted by the Commissioner for Entrance Examinations to get admission. Admittedly, since this is not satisfied in the case of the '46' students Ext.P3 order passed by the Committee and Ext.P6 order passed by the University do not call for any interference.
13. The first question to be considered is with regard to the merit of 46 students, to have admission for the first year B.Tech course in the petitioner's Institution. Admittedly, they were accommodated against the 'lapsed seats', the Commissioner having failed to allot sufficient number of students in the 50% Merit Quota. This may be due to various reasons including that the students concerned may not be much interested in joining the petitioner Institution with regard to the standard of education imparted, the lack of infrastructure, or such other reasons. If there are any 'lapsed seats', they will get added on to the 'Management quota' and the same can be filled up only from the list of students, who have cleared the Entrance Test conducted by the Commissioner for Entrance Examinations. Paragraph 16 of Ext.P1(a) Agreement clearly stipulates this requirement. This is more so, in view of the ruling rendered by this Court that 'lapsed seats' are part of the 'Management Quota' as held in Alina Arun Kanattu vs. Admission Supervisory Committee for Professional Colleges (2016(3) KLT 661) (to which one of us -PRRM(J) was a member). The petitioner is a member of the 'Management Association, having been placed at Sl.No..49 in Ext.P1(a)Agreement, executed by the Management Association representing the members and the Government. This being the position, the petitioner is bound by the terms of Ext.P1 (a). Since the petitioner has not filled up the 'lapsed seats' by accommodating candidates, who have cleared the Entrance Examination in terms of paragraph 16 of Ext.P1(a), the admission effected by the petitioner is per se wrong and illegal in all respects.
14. The next question is with regard to alleged denial of opportunity of hearing. There cannot be any dispute to the fact that immediately on completing the admission, it is obligatory for the Educational Institution to upload the particulars of the students admitted, to the website, which was not done for quite long. The lapse on the part of the petitioner was pointed out by the Committee as per their letter dated 22.08.2016 , which has been referred to in Ext.P2 letter dated 07.09.2016 sent by the petitioner. It has been observed by the Committee in Ext.P3 order itself, that the Prospectus and Agreement were never submitted for approval. This has not been rebutted anywhere in the writ petition. On the other hand, the sequence of events is virtually conceded with reference to the G.O. dated 30.06.2016 issued by the Government and Ext.P1(a) Agreement dated 28.06.2016 executed between the Management Association and the Government agreeing for seats-sharing, which made the Committee to proceed with the matter accordingly.
15. It has been observed by the Committee in Ext.P3 order that the Principal and Treasurer of the petitioner Institution had appeared before the Committee on 22.09.2016, when the defects were pointed out. The factual position is discernible from the documents produced as Annexure R2(1) dated 06.09.2016, Annexure R2(2) dated 22.09.2016 and Annexure R2(3) 22.09.2016 (produced along with the statement dated 16.12.2016 submitted by the Standing Counsel for the respondent Committee. The opening sentence of Annexure R2(2) dated 22.09.2016 submitted by the petitioner before the Committee itself refers to one of the defects pointed out, the sentence reads as follows:
During the submission of relevant documents, your esteemed office has noted that the following students of ECE, Sreevidya V, (Adm.No.1100) and Sandra Suresh (Adm No.1096), have not appeared in Maths in KEAM.'…..(Emphasis is supplied)
From the above, it is quite evident that the defects were pointed out at the time of submission of the relevant documents by the petitioner. After considering the version of the petitioner in Annexure.R2(3), regarding the 16 students whose particulars were not uploaded for the reasons stated therein, the Committee found that the explanation was satisfactory and hence admission of the said 16 students was cleared. It was only on alerting the petitioner as above, that replies were submitted by the petitioner as borne by Annexures-R2(1) to R2(3). If no opportunity was given in this regard, there would not have been any explanation as well, which by itself is a pointer to the fact that sufficient opportunity was given. Because of the admitted fact or undisputed fact that '46' students accommodated in the 'lapsed seats' had not qualified in the Entrance Examination, nothing further remained to be stated or explained from the part of the petitioner in this regard. Hence we find considerable force in the submission made from the part of the learned Standing Counsel for the ASC, that there is no violation of the principles of Natural Justice. Granting of opportunity of hearing is not to be treated as a futile exercise. In so far as it was obligatory for the petitioner to have admitted students in the 'lapsed seats' only from the test qualified candidates, by virtue of mandate under paragraph 16 of Ext.P1(a) Agreement and further since the 46 students admitted were not test qualified candidates as admitted by the petitioner, it did not require any further proof and no volume of explanation to be offered by the petitioner, if at all any, will improve the situation. As such, the alleged loss of opportunity cannot but be repelled.
16. The remaining question is whether the contention that Ext.P3 order, having been passed solely by the Chairman of the Committee, could be regarded as a valid order in the eye of law. It is true that the Committee, as defined under section 2 (a)of Act 19 of 2006 is constituted under Section 4(1) of the Act. Apart from the Chairman, who requires to be a retired Judge of the Supreme Court or High Court, four serving officers of the Government at higher levels (in different capacities) are there; besides an Educational Expert belonging to SC/ST . The Act does not mention any 'Quorum' for transaction of business of the Committee. The very purpose and object of the Statute by constituting a Committee is to ensure that admissions are done in the Educational Institutions satisfying the 'Triple Tests' enunciated by the Supreme Court, maintaining merit and transparency and also ensuring that there is no profiteering/exploitation or any instance of capitation fee. Since the admission proceedings are to be completed in a time bound manner, adhering to the time schedule fixed by the Apex court, prompt action on time is the prime requirement. This virtually makes the job of the Committee, a 'round the clock affair' with a retired Judge of the Apex Court or the High Court at the helm of the affairs as the Chairman- who is to make himself available throughout.
17. A Division Bench of this Court has already considered exactly similar issue and after making a reference to the relevant decisions rendered by the Supreme Court on the point including 1976(3) SCC 344 (Punjab University vs. Vijay Singh Lamba) and( 1976)3 SCC 435 [Ram Bharosey Agarwqal vs. Har Swarup Maheshwari] held that, by virtue of the scheme of the statute involved (Act 19 of 2006) and the mandate of Section 4(2)of the Act, enabling the Committee to lay down its own procedure, read with Section 5(3) of the Act, the decision rendered by the Supreme Court (holding that when no specific quorum is mentioned under the Statute, the decision has to be taken by the Committee with simple majority), is not applicable to the case in hand. The Bench adverted to the Resolutions passed by the Committee on 19.02.2007 and 04.07.2013 (passed in exercise of the power under Section 4(2) of the Act) authorizing the Chairman to pass/take urgent decisions/orders/steps and to have it ratified by two members in the manner as specified therein. The version of the petitioner that the said decision is 'per incurium', having not referred to the law declared by the Supreme Court in AIR 1976 SC 1739 (Ram Bharosey Agarwal vs. Har Swarup Maheshwari), is not correct, as the said decision has very much been adverted to, giving an equivalent citation as reported in (1976)3 SCC 435 (cited supra), besides referring to another decision as well, as reported in 1976 (3) SCC 344 (cited supra), both in connection with the quorum to deal with day-to-day procedure.
18. Very strong reliance is placed by the learned Sr. Counsel for the petitioners on the verdict passed by the Apex Court in AIR 1972 SC 1812 (Ishwar Chandra vs. Satyanarain Sinha and others), 1988 (Supp) SCC 562 (State of Andhra Pradesh and another vs. Dr. Mohanjit Singh and another) and also on paragraph 395 of the Constitution Bench Decision in (2016)5 SCC 1 (Supreme Court Advocates-On-Record Association vs. Union of India) to contend that when the Statute does not prescribe any quorum for taking a decision by the Committee concerned, it has to be by 'simple majority' and nothing less than that. By virtue of the said law, the impugned order passed by the Chairman of the ASC is not liable to be treated as a valid order and hence is sought to be set aside.
19. The challenge involved in AIR 1972 SC 1812 (cited supra) was with reference to the proceedings of a Committee constituted for submitting a panel of names for appointment of Vice Chancellor of the University involved therein. The Bench made it clear that, when there was no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it as a valid meeting and the matters considered by the said Committee cannot be held as invalid. The position considered by the Apex Court in AIR 1976 SC 1739 (cited supra) was with regard to sustainability of the proceedings finalised by the Disciplinary Committee of the State Bar Council, holding a lawyer guilty of professional misconduct, as affirmed by the Bar Council of India in appeal. The case preferred by the aggrieved party was allowed, holding that the Disciplinary Committee as per the Statute was to consist of 'three members'; whereas in the instant case, the proceedings were heard and finalised by only 'two' members and hence invalid.
20. In 1988 Suppl.SCC 562 (cited supra), the question considered at the instance of the State of Andhra Pradesh was, whether there could be a valid selection by the Body constituted under the relevant Government Order, when there was no quorum. As per the said Government Order, presence of at least one representative of the University and the representative of Director of Higher Education in the Selection Committee was stipulated as essential, for completing the quorum. The Bench held that, in so far as the Government Order was quite categoric as to the constitution of the Committee to function as a Selection Body; in the absence of the representative of the Director of Higher Education, it could not be held that proper Selection Committee was constituted. It was further held that, subsequent ratification by the District Education Officer at a later point of time would not validate the proceedings of the defective Selection Committee as there was no quorum, by virtue of which, the Committee was not entitled to transact the business .
21. Coming to the recent verdict rendered by the Constitution Bench of the Supreme Court in NJAC case [(2016) 5 SCC 1 (Supreme Court Advocates-On-Record Association vs. Union of India)], paragraph 395 (as relied on by the petitioner)reads as follows:
'395. The contention advanced at the hands of the learned counsel for the petitioners, as has been noticed in the foregoing paragraph, does not require any detailed examination as the existing declared legal position is clear and unambiguous. In this behalf, it may be recorded that in case a statutory provision vests a decision-making authority in a body of persons without stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision-making. On the same analogy therefore, a valid decision by such a body will necessitate a decision by a simple majority of all the members of the body. If the aforesaid principles are made applicable to NJAC, the natural outcome would be that a valid meeting of NJAC must have at least four Members participating in a six-Member NJAC. Likewise, a valid decision of NJAC can only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of NJAC (three Members on either side would not make up the simple majority). We are satisfied that the provisions of the NJAC Act which mandate that NJAC would not make a recommendation in favour of a person for appointment as a Judge of the High Court or of the Supreme Court if any two Members thereof did not agree with such recommendation cannot be considered to be in violation of the rule/principle expressed above. As a matter of fact, the NJAC Act expressly provides that if any two Members thereof did not agree to any particular proposal, NJAC would not make a recommendation. There is nothing in law to consider or treat the aforesaid stipulations in the second proviso to Section 5(2) and Section 6(6) of the NJAC Act as unacceptable. The instant submission advanced at the hands of the learned counsel for the petitioners is therefore liable to be rejected and is accordingly rejected.'
22. It is true that the Bench held that, when the statute does not stipulate minimum quorum, the decision of the Committee has to be by a simple majority. But the said observation was made in a different context, which is very much clear from the observations in the very same paragraph. Applying the said declaration to the case in hand (NJAC case), the Bench held that the natural outcome would be that, among the total '6' members of the NJAC, a valid decision could have been taken only by '4' members, who participated in the meeting. But the provisions in the NJAC Act stipulated something more, to the effect that NJAC would not make a recommendation in favour of a person for appointment as a Judge of the High Court or of the Supreme Court, if any two members thereof did not agree with such recommendation. This stipulation was held as not in violation of the rule/principle expressed above. By virtue of the above specific stipulation in the NJAC Act (that if any two members thereof did not agree to any particular proposal, the NJAC would not make a recommendation), the submissions made on behalf of the petitioners as to the unacceptability of the stipulation in the second proviso to Section 5(2) and Sec. 6(6) of the NJAC Act was repelled.
23. The above observation itself is an authority to hold that, what makes the difference is the provision, if any in the statute. If nothing else is there in the statute, the decision of the Committee will prevail, if it is taken by simple majority. Even if the statute does not prescribe the quorum, if the scheme of the Statute prescribes something else as to the transaction of the business, definitely the said provision has to be given effect to. Here comes the role of Section 4(2) and Section 5(3) of Act 19 of 2006, which are reproduced below:
'4. Admission Supervisory Committee: (1) The Government shall constitute an Admission Supervisory Committee to supervise and guide the process of admission of students to unaided professional colleges or institutions consisting of the following members, namely;-
(2) The Admission Supervisory Committee may adopt its own procedure for the conduct of its business.
S ection 5(3):
'5. Collection of capitation fee prohibited:
(3) The Admission Supervisory Committee shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions and shall, for the purpose of making any enquiry under this Act, have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) while trying a suit in respect of the following matters, namely;-
(a) summoning and enforcing the attendance of any witness and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavit; and
(d) issuing commissions for the examinations of witnesses and for local inspections and any proceeding before such committee shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 and for the purpose of Section 196 of the Indian Penal Code (Central Act 45 of 1860)'
24. The scheme of the Statute, though it does not prescribe any quorum, had come up for consideration before a Division Bench of this Court in W.P(C)17328 of 2014 and connected cases. A threadbare analysis of the facts and figures was made by the Bench on various aspects including the powers of the Committee, validity of the decision taken by the Chairman and ratified by the Members in terms of the resolutions passed by the Committee on 19.02.2007 and 04.07.2013, in the context of Section 4(2) and Section 5(3) of the Act and other relevant provisions/aspects. The said verdict clearly stands against the petitioner.
25. As mentioned already, the Committee under the Act 19 of 2006 is a Special Committee, to be headed by a retired Judge of the Supreme Court or of this Court and comprising of 'five' other members, of whom 'four' are serving employees of the Government at higher levels and the 5th one to be an Educational Expert belonging to SC/ST. Such a Committee was constituted by the Government based on the legislative wisdom to ensure merit, transparency and non-exploitation in the field. Immediate necessity to deal with different subjects/matters and to pass appropriate orders on time was felt essential by the Government and it was accordingly, that power was conferred on the Committee itself under Sections 4(2) and 5(3) of the Act to regulate its own procedure. How the meeting shall be conducted, what should be the 'quorum' if any, in what way the orders passed by the Committee shall be given effect to etc., are matters to be dealt with by the Committee, who, by virtue of the very nature, function and duties conferred upon the Committee, is to discharge administrative as well as quasi judicial functions. It was to meet the above object, that the Committee was conferred with the power to regulate its own procedure. In exercise of the said power under Section 4(2) and 5(3) of the Act, read with other relevant provisions, the Committee found it extremely essential to regulate the procedure and it was accordingly, that a resolution was passed on 19.02.2007, holding that the Chairman and two other members could take up the matter for hearing and for passing final decision. It was also decided that, in the absence of at least two members, the Chairman and one member can transact all routine matters of the Committee, including hearing of the complaints, taking evidence etc; though final decision could be taken only in the meeting of the Committee where the Chairman and two other members were present . The relevant resolution dated 19.02.2007 reads as follows:
'II. Quorum of the Committee As per Sec.4(2) of the Act 19 of 2006, the Admission Supervisory Committee may adopt its own procedure for the conduct of the business. There is no provision either in the Act or in the Rules made thereunder, regarding quorum of the Committee and it was observed that there is practical difficulty in transacting the matters coming up for decision by the Committee, in the absence of the majority of the members at the meeting. Therefore the Committee decided that the Chairman and two other members can take up matter for hearing and passing final decision and such decision will be treated as the decision of the Committee for all purposes. The Committee also decided that in the absence of at least two members, the Chairman and one member can transact all routine matters of the Committee, including hearing of complainants, taking evidence etc. as and when found necessary. However in such cases, final decision will be taken only in the meeting of the Committee where Chairman and two other members are present.'
26. By the passage of time, by virtue of the increased number of professional Colleges/Institutions, number of students, different courses/additional courses, mounting number of complaints and the alleged violations, the Committee felt the need to have the procedure modified. The Committee in its meeting held on 04.07.2013 modified the resolution taken on 19.02.2017 in the following terms:
(ii) Modification of the minutes dated 19.02.2007 of the ASC In the meeting of the Committee held on 19.02.2007, it was observed that there is practical difficulty in transacting the matters coming up for decision by the Committee, in the absence of the majority of the members at the meeting. Therefore, invoking Section 4(2) of the Act, the Committee decided that Chairman and 2 other members can take up matter for hearing and passing final decision and such decision will be treated as the decision of the Committee for all purposes. The Committee also decided that in the absence of at least 2 members, the chairman and one member can transact all routine matters of the Committee including hearing of complaints, taking evidence etc. as and when found necessary. However in such cases final decision will be taken only in the meeting of the Committee where chairman and 2 other members are present. Most of the matter coming up for consideration before the Committees are generally related to denial of admission to deserving students, induction of ineligible students in the admission of any stream of education, withholding of the certificates of the students and so on.
The Committee has to rely on the record submitted by the students, colleges and reports of KUHS. The sittings are often adjourned and there would be repeated postings.
In the above situations, it may not be feasible for all the members of the Committee to be present on each occasion of sitting/meeting. Therefore the Committee authorizes the Chairman to make all the day to day correspondences with the parties, to hear the complaints, to prepare minutes of his opinion on the basis of available records and hearing made. Thereupon the chairman, along with one other member, can take final decision and such decision will be treated as the decision of the Committee for all purposes. Such decision has to be placed for ratification by the Committee consisting of 2 members along with the chairman.
If urgent decisions are to be taken and/or interim orders passed, the Chairperson is empowered to pass orders, interim or otherwise, as the situation warrants and then get the same ratified in the Committee meeting.
The Committee also authorise the manager to issue letters and make correspondences on behalf of the Chairman upon direction of the Chairman.
Most of the matters coming up before the Committee involves financial matters also, like creamy layer, non-refund of tuition fees, non-payment of fees remitted by the student, etc. The Committee therefore authorizes the Chairman to convene joint meeting of the ASC and FRC, whenever Chairman feels necessary, with a minimum of one member from FRC in addition to 2 members of ASC including Chairman. Any decision taken by the said Committee of these 3 members shall be the decision of the Committee for all purposes. The Committee also contacted Dr.K.M. Abraham, Additional Chief Secretary to Government, Mr. Rajeev Sadanandan, Principal Secretary to Government, H&FWD Department and Mr. Ramaraja Premaprasad, Law Secretary to Government. All the three of them had given their consent to the above decisions.'
27. The above resolutions/decisions taken by the Committee on 19.02.2007 and 04.07.2013 are not under challenge in these cases. So also, there is no challenge against any of the provisions of the Statute, including the different course of action provided with reference to the power conferred upon the Committee to regulate its own procedure under Section 4(2), r/w. Section 5(3). This clearly indicates that the position under Act 19 of 2006 stands entirely different from the situation dealt with by the Apex Court in the decisions sought to be relied on by the petitioner , including paragraph 395 of the decision in (2016) 5 SCC 1 (cited supra). As it stands so, this Court is of the view that the aforesaid judgments do not come to the rescue of the petitioner. The finding rendered by the Division Bench of this Court in W.P.(C)17328 of 2014 and connected cases does not require any reconsideration.
28. The version putforth by the learned Sr. Counsel for the petitioners that the above judgment passed by the Division Bench of this Court is 'per incurium', in so far as it has not referred to the verdict passed by the Apex Court in AIR 1976 SC 1739 (cited supra), is not correct as the said decision of the Apex Court has been referred to [as reported in another journal as (1976) 3 SCC 435)] (cited supra) besides referring to another verdict reported in ( 1976) 3 SCC 344) (cited supra). It is relevant to note that the constitutional validity of the 'Act' itself was under challenge before this Court in Lisie Medical & Educational Institution v. State (2007 (1) KLT 409). This Court held that the stipulation, by way of Section 3, to meddle with the Act after giving rise to the Statute conferring the entire power upon the Committee by way of Act 19 of 2006, was not correct. It was accordingly, that Section 3 of the Act and some other incidental provisions were set aside. No interference was made by this Court to Sections 4 or 5, which virtually upholds the legislative wisdom of the State in conferring power upon the Committee itself to regulate its own procedure as to the transaction of business.
29. It is important to note that matters involving admission to professional colleges have to be finalised in a time bound manner, in conformity with the time schedule fixed by the Apex Court by way of relevant rulings and also by the authorities concerned. By virtue of the enactment of Act 19 of 2006, admission to professional colleges has to be approved by the Committee. If the admissions made by different colleges are to be scrutinised and the decision is to be taken granting approval by the Committee of six members, by conducting sitting every day, it may not be possible to transact the business, as at least '4' members are senior level officers of the Government serving elsewhere. Further, it is also to be noted that the 'approval order' as in the instant case is not a policy decision, but a mere scrutiny as to whether the petitioners have cleared the Entrance Test or not, or whether the Institutions have got the approval of the AICTE or not. As such, there is nothing wrong in the proceedings finalised by the Committee. The challenge is devoid of any merit.
30. There is a further contention for the petitioners that 'seats are lying vacant' in several Engineering Colleges in the State and the position is not different in the petitioner Institution as well. As against the total 300 seats, allotment was to be made to 150 seats (Merit Quota) by the Commissioner for Entrance Examinations, who, however, forwarded the names of only '69' candidates, leaving out '81' seats vacant. This made the petitioner to give admissions to '46' students covered by the impugned order, though they were not qualified in the Entrance Test. It is pointed out that all these students are having high marks in the 'Plus Two level', satisfying more than the requisite minimum level(45% and above) as stipulated by the AICTE for getting admission. Since the standard fixed by the AICTE is 45% and above, their admissions are liable to be declared as valid; more so, when several seats are lying vacant. Reliance is sought to be placed on the verdict passed by the Supreme Court in (1995) 4 SCC 104 (cited supra), and in particular, the conclusion under paragraph 41(vi), which is reproduced below:
41. What emerges from the above discussions is as follows:
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central Law, they act unconstitutionally. So also when the State authorities derecognize or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally'
The above decision rendered by the 'Two member Bench' had come up for consideration before 'Three Member Bench' of the Apex Court in (2004) 4 SCC 513 (= AIR 2004 SC 1861) (cited supra). The question considered by the Bench was, if higher minimum is prescribed by the State Government than what has been prescribed by the AICTE, can it be said that it is adverse to the standards fixed by the AICTE or reduces the standard?. This was answered by the Bench in the 'negative'. Further observations were made in para
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graph 10 (in AIR 2004 SC 1861), with reference to (1995) 4 SCC 104, which is reproduced below: '10. xx xx xx. .It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.' It was accordingly held that, it was permissible for the State Government to prescribe higher qualification for the purpose of admission to the Engineering Colleges than what had been prescribed by the AICTE. It was made clear that, what has been prescribed by the State and considered by the Court, was not contrary to the norms of the AICTE; but only complementary/supplementary to it. The position was considered again by the Apex Court in (2011) 4 SCC 606 (= AIR 2011 SC 1429) (cited supra) . The question considered by the Bench as dealt with in the opening paragraph is as follows: 'The question involved in these appeals is whether the eligibility criteria for admission to the engineering courses stipulated under the statutory rules and regulations of the State Government/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 possess the minimum eligibility prescribed under the norms of the central body (AICTE) 31. After referring to the verdicts passed by the Apex Court in (1995) 4 SCC 104 (cited supra), Preeti Srivastava (Dr.) vs. State of M.P. ( 1999) 7 SCC 120, ( 2004) 4 SCC 513 (cited supra), the Bench held that the factum of several seats remaining unfilled is not a ground to dilute the norms for selection. The observation as contained in paragraph 13 (in AIR 2011 SC 1429) is relevant, which hence is reproduced below: '13. 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.' 32. From the above, it is quite clear, the fact that the seats are lying vacant, is not a ground to have admitted students without qualifying in the Entrance Test. As held by this Court in 2016 (3)KLT 661,(cited supra) that 'lapsed seats' are part of 'Management Quota', which could have been filled up only on the basis of 'Merit' in the Entrance Examination. The position has been stated quite categorically in paragraph 16 of the G.O. dated 30.06.2016 and in the Agreement executed between the Association of Self-financing Institutions (in which the petitioner is a member) and the Government, holding that, if the Commissioner does not make allotment to the 50% 'Merit Quota' seats, the 'lapsed seats' will get added on to the Management seats and that the admission could be effected by the Self Financing Institution to the said seats as in the case of Management seats, which clearly postulates clearance of Entrance Test . The inevitable conclusion is that the factum of admission effected by the petitioner Institution, filling up the 'lapsed seats' by students, who are not qualified in the Entrance Test (which fact is admitted by the petitioner Institution), does not require any further fact finding exercise, to arrive at an inference that such admission is bad in all respects and cannot be sustained as valid in the eye of law. We find that the order passed by the Committee is perfectly within the four walls of law and is not assailable under any circumstance. The writ petition fails and it is dismissed accordingly.