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The Director, Rajagiri School of Engineering & Technology, Kochi & Others v/s A.P.J. Abdul Kalam Technological University, Represented by Its Registrar, Thiruvananthapuram & Others


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    WA. Nos. 968, 1263 & 1269 of 2019

    Decided On, 03 June 2019

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR

    For the Appellants: Kurian George Kannanthanam, Sr. Advocate, Alex George, Thomas George, Tony George Kannanthanam, Advocates. For the Respondents: S. Krishnamoorthy, CGC., K.X. Yesudas, P.J. Elvin Peter, K.R. Ganesh, Advocates.



Judgment Text

A.K. Jayasankaran Nambiar, J.

1. These three Appeals arise from the common judgment of the learned Single Judge in W.P.(C).Nos.36631 of 2018, 36773 of 2018 and 37147 of 2018. The brief facts necessary for a disposal of these Writ Petitions are as follows:

The writ petitioner Colleges, which were all established in the self-financing sector in 2001/2002 for imparting technical education, and were affiliated to the M.G.University and the Calicut University respectively in the State of Kerala, were automatically affiliated to the A.P.J. Abdul Kalam Technological University (hereinafter referred to as ‘the Technological University’), which came into being through the A.P.J. Abdul Kalam Technological University Act, 2015 (hereinafter referred to as ‘the 2015 Act’). Chapter VIII of the said Act deals with permission, affiliation and recognition of colleges. Section 60(1) under the said Chapter, with which we are concerned in these appeals, deals with affiliation and recognition and reads as follows:-

“60. Affiliation and recognition:-

(1) The University can affiliate any of the Engineering Colleges or Institutions imparting education in technology owned by Government of Kerala or Government controlled societies, private aided and Private unaided self-financing educational agencies, which, before the date of commencement of this Act remained affiliated to the different Universities, except Deemed universities in the State of Kerala, provided they meet the criteria prescribed under this Act, Ordinances and Statutes for affiliation, including but not confined to availability of faculty, administrative machinery, infrastructure (buildings, laboratories etc.) which will be laid down by the University from time to time under the provisions of this Act. Such colleges meeting the specified criteria can be affiliated to the University as (i) regular colleges or (ii) autonomous colleges (iii) Colleges with academic autonomy or (iv) Institutions. The affiliation of such institutions to other Universities in the State except Deemed Universities, shall stand transferred to the University on and from the date of commencement of this Act, subject to the conditions that the affiliation of these colleges or institutions in respect of the students admitted to Engineering courses shall continue till those batches of students complete their courses, the examinations of all such students shall be conducted by the Universities to which they were attached, degrees, postgraduate degrees or diplomas or other distinctions shall be awarded by such Universities;

Provided that the institutions in the technological branch maintained by other Universities of the State as their departments or their respective constituent colleges or the engineering colleges or teaching, institutions under the deemed universities and the National Institutes established by the central Government shall not, come under the jurisdiction of the university.”

2. An affiliated College or Institution is defined under Section 2(c) of the Act as follows:-

“2. Definitions. In this Act, unless the context otherwise requires-

(a) xxxxxx

(b) xxxxxx

(c) “affiliated college or institution” means a college or institution imparting technical education and is affiliated to the University in accordance with the provisions of this Act and the Statutes;.”

3. It can be seen from a perusal of Section 60(1) extracted above, read with the definition of affiliated colleges under the Act, that the Technological University could affiliate any engineering college or institution imparting education in technology, and whether owned by Government of Kerala or Government controlled society, private aided and private unaided self- financing educational agencies, which before the commencement of the 2015 Act (with effect from 05.05.2014) remained affiliated to a different University except Deemed University in the State of Kerala, provided the said colleges or institutions met the criteria prescribed under the 2015 Act, Ordinances and Statutes for affiliation. The Technological University was empowered to affiliate those colleges meeting the prescribed criteria for affiliation as regular colleges, autonomous colleges, colleges with academic autonomy or institutions. If a college or institution that was earlier affiliated to another University other than a Deemed University in the State of Kerala satisfied the specified criteria for affiliation to the Technological University under the 2015 Act, on the date of commencement of operation of the 2015 Act, then, the earlier affiliation of such institutions to other Universities in the State, except Deemed Universities, was to stand automatically transferred to the Technological University on and from the date of commencement of the Act. The said transfer of affiliation was, however, subject to the condition that those students who had already been affiliated to the earlier University, consequent to their being admitted to the college/institution prior to the date of commencement of the 2015 Act, would continue to be affiliated to the erstwhile Universities for the purposes of award of degree, diploma etc.

4. The immediate provocation for the filing of the Writ Petitions by the writ petitioner colleges was that they had sought for the grant of a permanent affiliation as envisaged under Section 63(3) of the 2015 Act, which is extracted as below:-

“63. Continuation of affiliation.-

(1) xxxxxxx

(2) xxxxxxxx

(3) An affiliated college with at least six years standing as an affiliated college may apply for permanent affiliation in the manner as may be prescribed in the Statutes and the University shall consider such applications in such manner as may be prescribed.”

5. The application for affiliation was preferred on the contention that, when taken together with the period of earlier affiliation with the other Universities in the State of Kerala, the writ petitioner colleges had completed six years standing as an affiliated college, and therefore, they were entitled for a permanent affiliation in terms of the 2015 Act. The applications preferred by the writ petitioners were initially not considered by the Technological University, but after a round of litigation and pursuant to a direction issued to the Vice Chancellor of the University, to consider the application for permanent affiliation by exercising his power under Section 14 of the 2015 Act, Ext.P14 communication came to be issued on 29.10.2018 to the Principal, Rajagiri School of Engineering and Technology, Kakkanad informing him that the Vice Chancellor had rejected its application for permanent affiliation, on the ground that, the institution had not completed six years of standing as an affiliated institute/college under the Technological University. Similar communications were issued to the other writ petitioners and these were the subject matter of challenge in the respective Writ Petitions.

6. The learned Single Judge, who considered the writ petitions found that, on a literal reading of Section 63 (3) of the 2015 Act, the institutions/colleges seeking permanent affiliation were expected to complete six years standing as an affiliated college under the Technological University and that, merely because they had been affiliated to other Universities prior to their affiliation with the Technological University, they could not reckon the said period of affiliation to the prior University while computing the six years affiliation mandated for permanent affiliation under the 2015 Act. In the absence of a specific provision permitting the reckoning of previous affiliation for the computation of the six years affiliation for permanent affiliation, it was held that the challenge in the Writ Petitions could not succeed. While dismissing the Writ Petitions on the said ground, the learned Single Judge also considered the validity of various Clauses in the affiliation guidelines prescribed by the Technological University (Ext.P13) and found that of the 4 Clauses that were challenged, Clause (xiii), which mandated that if an institution had to avail UGC benefit in terms of the UGC Act on account of grant of permanent affiliation, concurrence of the Technological University had to be obtained by it and funds channelized only through the University, could not be legally sustained and struck down the same. The other Clauses were not interfered with by the learned Single Judge.

7. Before us, it is the submission of the learned Senior counsel Sri.Kurian George Kannanthanam that a holistic reading of Sections 2(c), 60 and 63(3) of the 2015 Act would unambiguously indicate that once an institution/college was found entitled for an automatic transfer of its erstwhile affiliation to the Technological University under the 2015 Act, then the continuity of affiliation that was envisaged under Section 60(1) of the Act could not be ignored for the purposes of Section 63(3) of the same Act. The contention, in other words, is that the deemed affiliation that is envisaged in Section 60(1) has to be recognized for all purposes under the 2015 Act, including for the purposes of reckoning the six years period of affiliation envisaged for the grant of permanent affiliation. He would further point out that the Board of Governors of the Technological University had, on an earlier occasion (11.01.2017) in Ext.P2 resolution, clearly understood the purport of the statutory provisions as above and decided that an institute/college, which had at least six years of standing as affiliated institute/college in any of the Universities within the State would be eligible for seeking permanent affiliation under the 2015 Act. It is his further contention that although in Ext.P12 guidelines dated 23.05.2018 of the Vice Chancellor, which is stated to have obtained the approval of the Board of Governors, a view contrary to that taken earlier by the Board of Governors is put forward, it is well settled that under the statutory dispensation under the 2015 Act, the Board of Governors do not have a power to review their own earlier decision.

8. Per Contra, the learned counsel Sri.K.R.Ganesh appearing for the Technological University would emphasize on the words used in Section 63 (3) of the Act to contend that the six years of affiliation mandated for permanent affiliation under the Act refers of six years of actual affiliation to the Technological University. It is pointed out that the affiliation to the Technological University commenced only in 2015, and notwithstanding the fact that the college/institution in question was affiliated to other Universities in the past, the permanent affiliation under Section 63(3) could be given only to such colleges as were affiliated to the Technological University under the Act for a continuous period of six years. He would point out that under the University Statutes governing M.G.University as also the Calicut University, there are no provisions for permanent affiliation and hence, the affiliation under those Statutes could have no bearing on the issue of conferring permanent affiliation in terms of Section 63(3) of the 2015 Act.

9. On a consideration of the rival submissions, we find force in the contention of learned Senior counsel for the appellants herein that the affiliation of the appellant institutions to the M.G.University/Calicut University had also to be reckoned for the purposes of computing the six years affiliation that is required for permanent affiliation under the 2015 Act. While it may be possible for the Technological University to contend that colleges/institutions that do not meet the criteria specified for affiliation under the 2015 Act cannot aspire for a transfer of their affiliation from the earlier University to the Technological University in terms of Section 60(1) of the Act, once it is found that the college/institution seeking affiliation with the Technological University under the 2015 Act satisfies, not only the conditions for affiliation prescribed by the erstwhile University but also the conditions for affiliation prescribed under the 2015 Act, as on the date of commencement of operation of the said Act, then the erstwhile affiliation of the said college/institution had to be seen as automatically transferred to the Technological University in terms of the 2015 Act. The continuity of the affiliation that resulted through the statutory prescription could not have been ignored by the University authorities while interpreting the provisions of Section 63(3) that deals with permanent affiliation. This is more so because the automatic transfer of affiliation that was envisaged in Section 60(1) of the Act was one that resulted by operation of law and not based on any option exercised by the college/institution. We are therefore of the view that the affiliation earlier enjoyed by the writ petitioner college/institution to the respective Universities has necessarily be taken into account while reckoning the six years affiliation mandated under Section 6

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3 (3) of the 2015 Act, and consequently, if it is found that the appellant colleges/institutions have a total of six years affiliation, with the earlier University and the Technological University put together, then their application for permanent affiliation will have to be considered by the Technological University in accordance with the provisions of the applicable Act, Rules and Regulations. We might also add in this connection that the appellants before us are colleges/institutions that have accredited NAAC and NBA accreditation and are also recognized as institutions of excellence in the field of technical education. We have no reason to believe that these aspects would not be considered by the Technological University while processing the application for permanent affiliation in accordance with the directions given above. The Technological University shall consider the applications already preferred by the appellants for permanent affiliation and shall pass orders thereon in the light of the observations in this judgment within six weeks from the date of receipt of a copy of this judgment. We make it clear that we have not entered into the merits of the other contentions raised by the appellants in these Writ Appeals since the specific rejection of the application of the appellants for permanent affiliation was only on account of the interpretation placed on Section 63 (3) of the 2015 Act. These Writ Appeals are disposed as above.
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