Architects Act; Global Institute of Architecture, Peradikunnu Vs. Secretary, Higher Education Department [Kerala High Court, 10-08-2016]

AICTE (Grant of Approvals for the Technical Institutions) Regulations, 2012 – Council of Architecture (Minimum Standards of Architectural Education) Regulations, 2015 – In the absence of any provisional affiliation granted by the University, the petitioner is not entitled to make admission against the additional intake sanctioned for B.Arch. course for the academic year 2016-17.


IN THE HIGH COURT OF KERALAAT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

W.P.(C)No.25564 of 2016

Dated this the 10th day of August, 2016

PETITIONER

THE GLOBAL INSTITUTE OF ARCHITECTURE PERADIKUNNU

BY ADVS.SRI.RAJESH SIVARAMANKUTTY SRI.R.S.SARAT

RESPONDENTS

1. THE SECRETARY HIGHER EDUCATION DEPARTMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

2. THE REGISTRAR, COUNCIL OF ARCHITECTURE, INDIA HABITAT CENTRE, CORE 6A, IST FLOOR, LODHI ROAD, NEW DELHI-110003 INDIA.

3. THE DIRECTOR OF TECHNICAL EDUCATION, OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.

4. THE REGISTRAR, UNIVERSITY OF CALICUT, MALAPPURAM DISTRICT, PIN-676635, CALICUT UNIVERSITY PO, KERALA.

5. THE COMMISSIONER OF ENTRANCE EXAMINATION, FIFTH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGER, THIRUVANANTHAPURAM.-695001. ADDL.R6 AND R7 IMPLEADED Addl.

6. ADMISSION SUPERVISORY/FREE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695001.

7. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION 7TH FLOOR, CHANDERLOK BUILDING JANPATH, NEW DELHI-110001.

R1, 3 & 5 BY SPL.GOVERNMENT PLEADER SRI P.SANTHOSH KUMAR R2 BY TOJAN J VATHIKKULAM SC FOR COUNCIL OF ARCHITECTURE R4 BY SRI.SANTHOSH MATHEW,SC,CALICUT UNIVERSITY ADDL.R6 BY SMT.MARY BENJAMIN, SC (ASC) ADDL.R7 BY KRISHNAMOORTHY SC, ALL INDIA COUNCIL FOR TECHNICAL EDUCATION

J U D G M E N T

Anil K. Narendran, J.

The petitioner is a private self financing educational institution conducting B.Arch. course, from the academic year 2013-14 onwards, with the approval of the Council of Architecture, the 2 nd respondent herein and with the affiliation granted by the Calicut University, the 4 th respondent herein. The petitioner has filed this writ petition seeking a writ of mandamus commanding the 1 st respondent to make available 50% of the additional seats for B.Arch. course for the academic year 2016-17 for being filled up from the management quota; and for a declaration that the petitioner is entitled to fill up the additional seats allotted for the academic year 2016-17 from the rank list prepared by the Commissioner for Entrance Examinations, the 5 th respondent herein. The petitioner has also sought for a declaration that no ‘NOC’ by the State of Kerala, the 1 st respondent herein, is needed for filling up the additional seats approved by the Council of Architecture, the 2 nd respondent herein.

2. The pleadings and materials on record would show that the petitioner is conducting B.Arch. course from the academic year 2013-14 onwards, with an annual intake of 40 seats, after obtaining Ext.P1 letter of approval from the 2 nd respondent Council. The 4 th respondent University has also granted provisional affiliation for the said annual intake, vide Ext.P2 order. Based on the application made by the petitioner, the 2 nd respondent Council vide Ext.P4 communication dated 9.7.2016 granted approval for an additional intake of 40 seats for B.Arch. course, for the academic year 2016-17. Based on the approval granted by the 2 nd respondent Council in Ext.P4 and on the recommendation of the District Level Inspection Commission, Palakkad, the Syndicate of the 4 th respondent University recommended permanent increase of additional intake of 40 seats, and the minutes of the Syndicate meeting was forwarded to the 1 st respondent State for consideration and concurrence, vide Ext.P5 communication dated 14.7.2016. Thereafter, petitioner approached the Director of Technical Education, the 3 rd respondent herein, for NOC to execute agreement with the State Government for the additional intake of 40 seats. The 3 rd respondent, vide Ext.P6 communication dated 19.7.2016 forwarded the said request to the 1 st respondent State, for issuance of administrative sanction and NOC for the additional intake of 40 seats.

3. The grievance of the petitioner is that though the petitioner has complied with the requirements prescribed by the 2 nd respondent Council and also the 4 th respondent University, the 1 st respondent State is withholding NOC for the additional intake of 40 seats for the academic year 2016-17. The petitioner would contend that, once the 2 nd respondent Council has granted approval for the additional intake, the grant of NOC by the 1 st respondent State is not a legal requirement and as such, the additional intake should have been made available for allotment of students, with effect from the date of Ext.P4.

4. The learned Special Government Pleader, with reference to the statement filed in W.P.(C)No.23318/2016 relating to admission to B.Arch. course in the College of Engineering and Technology, Payyannur (which case was listed along with this writ petition, in which we have granted an interim order on 5.8.2016) would submit that, the State Government is more concerned about the strengthening of the public sector educational institutions in the State and also to improve the quality of education. At the same time, the Government also realise the fact situation and the difficult position now being faced by the existing self-financing colleges, due to the scarcity of sufficient candidates. Since the pre-normalisation procedure has been cancelled by the State Government, the vacancy position may raise to more than twenty thousand seats for engineering courses. Necessarily the Government have to consider all the aspects before granting NOC for protecting the interest of the State as well as the student community. Starting of new courses and establishment of new self-financing college may be detrimental to the existing colleges both in Government sector and private sector.

5. We heard the arguments of the learned counsel for the petitioner, the learned Special Government Pleader for respondents 1, 3 and 5, the learned Standing Counsel appearing for the 4 th respondent University, the learned Standing Counsel for the Admission Supervisory Committee for Professional Colleges, the Addl. 6 th respondent and also the learned Standing Counsel for the All India Council for Technical Education, the Addl. 7th respondent.

6. In

# Jaya Gokul Educational Trust v. Commissioner and Secretary to Government, (2000) 5 SCC 231

the Apex Court, in the context of Statute 9(7) of the Kerala University First Statutes, held that there is no statutory requirement for obtaining the approval of the State Government for establishing Technical Institutions and even if there was one, it would have been repugnant to the AICTE Act. Statute 9(7) merely requires that the ‘views’ of the State Government obtained before granting affiliation and this will not amount to obtaining ‘approval’. If the University Statutes required ‘approval’ it would have been repugnant to the AICTE Act. After referring to Regulation 8(4) of the AICTE Regulations, 1994 (then in force) the Apex Court held that, if the State Government had any valid objections, its only remedy was to place its objection before the AICTE Council or before the State Level Committee, etc.

7. Regarding the ‘policy’ of the State Government, the Apex Court held in Jaya Gokul‘s case (supra) that, the State could not have any ‘policy’ outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and Regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. The Apex Court has also made it clear that, if any fresh facts came to light after an approval was granted by AICTE or if the State felt that some conditions attached to the permission are required by AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action. Para.27 of the judgment reads thus;

“27. The so called ‘policy’ of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In

# Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of T.N., (1996) 3 SCC 15

which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (at SCC Page.35, Para.34) that

“essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone”. (emphasis supplied)

Therefore, the State could not have any ‘policy’ outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission are required by the AICTE to be complied with, were not complied with, then the State Government could always write to the AICTE, to enable the latter to take appropriate action.”

8. The law laid down by the Apex Court in Jaya Gokul‘s case (supra) has been followed by a Division Bench of this Court in

# St.Joseph Hospital Trust v. Kerala University of Health Sciences, 2012 (4) KLT 444

followed by an unreported judgment of a learned Single Judge of this Court in Muthoot M. George Institute of Technology v. State of Kerala (judgment dated 9.4.2013 in W.P.(C).No.2554/2013).

9. In Muthoot‘s case (supra), the question that came up for consideration was whether the policy of the State Government not to grant NOC to start self financing Engineering Colleges in the State in the academic year 2013-2014 was inconsistent with any provisions of the AICTE Act or Regulations. One of the main reasons projected for framing such a policy was the mushrooming of Engineering Colleges in the State and depletion of standards. After referring to the decisions referred to supra, this Court held that, despite the factual situations regarding the deplorable condition of large number of technical institutions, in so far as the grant of approval is completely within the domain of the legislative power of AICTE, it is for AICTE with the assistance of State Governments to consider the requirement of Technical Institutions in the State. Jaya Gokul‘s case (supra) still remains the authority in the matter of policy consideration by the Government. Hence the State Government cannot impose any moratorium to start any self financing Engineering Colleges during the academic year 2013-2014. However, this Court made it clear that, AICTE while granting approval to self financing Engineering Colleges in the State should consider the views expressed by the State Government in this regard before the grant of approval. Paras.23 to 27 of the judgment read thus;

“23. But in the case on hand by intervention of court as per Annexure I order, and other particulars available with the State Government a policy is framed in the form of a Government Order, not to grant NOC to start self financing engineering colleges in the academic year of 2013-2014. One main reason projected is the mushrooming of Engineering Colleges in the State and depletion of standards. Is such a policy inconsistent with any provisions of the AICTE Act or regulations? If section 10(a) of AICTE does not give power to AICTE to consider and approve the local needs of the State, definitely the State Government will have legislative competence to enact a law referable to Entry 25 of the Concurrent List subject to the provisions of Entries 63, 64, 65 and 66 of List I. If the State has the power to legislate, necessarily it can frame a policy, which is not inconsistent with the provisions of AICTE Act. In J.B. Educational Society case the Supreme Court did not uphold validity of the State law only for the reason that it had received the assent of the President, but held that, whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say. It was further held that Section 20 of the A.P. Act and Section 10 of the Central Act operate in different fields and there is no repugnancy between the two provisions.

24. Is mushrooming of colleges in a State a matter to be looked into by the State or is there any provision in the AICTE Act or the regulations to take care of such eventualities will be the question to be answered. The impugned order came to be passed in special circumstances as narrated in Annexure I order and the subsequent circumstances narrated in the counter affidavit especially that 18000 seats were lying vacant during the year 2012, of which 7262 were merit seats to which government was to make allotments. The government order impugned is the policy of the State to have control over the number of institutions to be established in the State.

25. In St.Joseph’s the division bench while considering the judgment J.B. Educational Society observed the deviation of the supreme Court in the view expressed in Jaya Gokul’s case, but formed an opinion on the basis of the judgment in the three Judge’s decision in

# State of Maharashtra v. Sant Dyaneshwar Shikshan Shastra Mahavidyalaya and others, (2006) 9 SCC 1

that Jaya Gokuls‘s case was approved. Paragraph’s 2, 5, 63 and 64 of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, reads as under:

xxx xxx xxx

Under these circumstances, it is all the more clear that despite the factual situations as narrated by the learned Advocate General, regarding the deplorable condition of large number of technical institutions, in so far as the grant of approval is completely within the domain of the legislative power of AICTE, it is for AICTE with the assistance of State Governments to consider the requirement of Technical Institutions in the State. In fact AICTE was also a party to the proceedings resulting in Annexure I order and they are also bound to consider the concern and views expressed by this court, before granting approval for starting new colleges exercising their statutory power. The law laid down by the Supreme court J.B. Educational Society cannot have application to the facts of the present case as the impugned order is in the form of a prohibition to start colleges during the present academic year, and is not based on local needs as visualised under Andhra Pradesh Education Act. That apart, Jaya Gokul’s case, still remains the authority in the matter of policy consideration by the Government.

26. Hence I am of the view that the State Government cannot impose any moratorium to start any self financing engineering colleges during the academic year, 2013-2014 and to that extent the impugned order is liable to be quashed, and accordingly I do so.

27. However, I make it clear that AICTE while granting approval to self financing engineering colleges in the State should consider the views expressed by the State Government in this regard before the grant of approval.”

10. In the instant case, the petitioner is conducting B.Arch. course from the academic year 2013-14 onwards, with an annual intake of 40 seats, on the strength of Ext.P1 letter of approval from the 2 nd respondent Council and Ext.P2 provisional affiliation granted by the 4 th respondent University. On a query made by this Court as to whether the approval of the AICTE and the affiliation of APJ Abdul Kalam Technological University is required for conducting B.Arch. course, the learned counsel for the petitioner and also the learned Standing Counsel for the 4 th respondent University would submit that, such approval from AICTE and affiliation from Technological University is not necessary for Architectural Colleges conducting only B.Arch. course and that, the 4 th respondent University has granted affiliation to similar institutions on the strength of the letter of approval granted by the 2 nd respondent Council, in terms of the regulations framed under the Architects Act, 1972.

11. The Architects Act, 1972 has been enacted by the Parliament, to provide for the registration of architects and for matters connected therewith, which came into force on 1.9.1972. Sub-section (1) of Section 14 of the Architects Act provides that, the qualifications included in the Schedule of the said Act or notified under Section 15 shall be recognised qualification for the purposes of the said Act. As per the Schedule, Bachelor Degree of Architecture awarded by Indian Universities established by an Act of the Central or State Legislature shall be recognised qualification for the purpose of the said Act. Sub-section (2) of Section 14 of the Act provides further that, any authority in India, which grants an architectural qualification not included in the Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the Schedule against such architectural qualification declaring that it shall be a recognised qualification only when granted after a specified date.

12. Section 21 of the Architects Act empower the Council of Architecture to prescribe the minimum standards of architectural education required for granting recognised qualifications by colleges or institutions in India. As per subsection (1) of Section 45 of the said Act, the Council may, with the approval of the Central Government, by notification in the Official Gazette make regulations not inconsistent with the provisions of the Act, or the rules made thereunder, to carry out the purposes of the Act. Going by clauses (e), (g), (h) and (j) of sub-section (2) of Section 45 of the Act, such regulations may provide for, the course and periods of study and of practical training, if any, to be undertaken, the subjects of examinations and standards of proficiency therein to be obtained in any college or institution for grant of recognised qualification; the standards of staff, equipment, accommodation, training and other facilities for architectural education; the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations; and any other matter which is to be or may be provided by regulations under the Act and in respect of which no rules have been made.

13. In exercise of the powers conferred by clauses (e), (g), (h) and (j) of sub-section (2) of Section 45, read with subsection (1) of Section 45 and Section 21 of the Act, the Council of Architecture, with the approval of the Central Government, made the

# Council of Architecture (Minimum Standards of Architectural Education) Regulations, 2015

(a copy of which has been made available to this Court by the learned counsel for the petitioner), which came into force from the academic year 2016-17. Going by clause (1) of Regulation 17 of the said Regulations, the Council of Architecture Minimum Standards of Architectural Education Regulations, 1983 stand repealed with effect from the said academic year.

14. Clause (1) of Regulation 5 of the said Regulations provides that, the institutions shall admit students at First Year level of the architecture course as per the intake sanctioned by the Council, from time to time. No admissions over and above the sanctioned intake shall be made by the institutions. Clause (1) of Regulation 7 provides further that, no Institution shall set up and commence the architecture course, except with the prior permission of the Council. Regulation 8 deals with extension of approval; Regulation 9 deals with additional intake; Regulation 10 deals with approval for imparting architectural course by new/existing institutions; and Regulation 14 deals with standards of staff, equipment, accommodation, training and other facilities.

15. Regulation 15 empowers the Council of Architecture to lay down the policy on courses and intake in existing and new institutions. Clause (1) of Regulation 15 provides that, the Council may, from time to time, lay down the process and criteria for undertaking inspections, granting intake and according approval for commencement of architecture course, extension of approval, increase/decrease in intake, based on the prescribed standards and perspective plan. Clause (2) of Regulation 15 empowers the Council to conduct surprise inspection of any institution through its Inspectors to ascertain the minimum standards of architectural education available for ensuring that the said course is being imparted as per the rules/regulations/guidelines prescribed by the Council, from time to time. Clause (6) of Regulation 15 mandates that, the institutions imparting architecture course must have valid affiliation with a University established by an Act of the Central or State Legislature or conferred authority by law to award Degree in Architecture. No admission shall be made by the institution without valid affiliation with a University.

16. In

# Council of Architecture and others v. Mala Mukherjee and others, AIR 2015 Calcutta 360

a Division Bench of the Calcutta High Court held that, a closer scrutiny of Section 21 of the Architects Act would show that it is an enabling power authorising the Council of Architecture to prescribe the minimum standards of architectural education for grant of a recognised qualification by the colleges or institutions in India. In the said case, the Division Bench was dealing with the question as to whether the Council of Architecture was entitled to decline registration of the 1 st respondent therein as an architect under the Architects Act, in view of its decision taken in its 60th meeting held on 27.8.2013 to conduct an ‘Architecture Competency Test’ followed by a viva voce test for candidates who were enrolled by Indian Institute of Architects after 1.7.2002 and had secured associate membership of the said institution.

17. In

# Ishan S. Darekar and others v. University of Pune and others, 2015 (3) Mah.LJ 24 : CDJ 2015 BHC 482

a Division Bench of the Bombay High Court held that, the provisions of the Architects Act are not impliedly repealed by the enactment of AICTE Act because, in so far as the Architecture Institutions are concerned, the final authority for the purposes of fixing the norms and standards would be the Council of Architecture. In the said case, the Division Bench was dealing with the question about interplay between Regulations of the Council of Architecture on the one hand and the Rules of University of Pune on the other hand regarding completion of a part of Bachelor of Architecture Course within a stipulated period and regarding the number of subjects for which ATKT (Allow To Keep Term) may be allowed.

18. As far as the role of AICTE vis à vis the Universities is concerned, a Two-Judge Bench of the Apex Court in

# Association of Management of Private Colleges v. All India Council for Technical Education, (2013) 8 SCC 271

held that, the role of the AICTE is only advisory, recommendatory and a guiding factor and thereby subserves the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself, except submitting a report to University Grants Commission for appropriate action. Regarding insertion of the words ‘MBA’ and ‘MCA’ before the words ‘Architecture’ and ‘Hotel Management’ in Regulation 8(c) of the AICTE (Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Approval of Intake Capacity of Seats for the Courses or Programmes) Regulations, 1994, vide Amendment Regulations of 2000, the Apex Court held that, not placing the amended Regulations on the floor of the House of Parliament as required under Section 24 of the AICTE Act vitiates the amended Regulation in law. Later, by order dated 24.3.2014 in W.P.(C) No.895/2013 (Army Welfare Education Society and others v. Union of India and others) another Two-Judge Bench of the Apex Court referred the said issue to a Three-Judge Bench having regard to the importance of the issue involved. Though the said Writ Petition was dismissed as infructuous by order dated 8.3.2016, taking note of the submission made by the learned Assistant Solicitor General that certain amendments to the AICTE Act are under contemplation and if such amendments are carried out the issues raised in the group of cases listed before the Bench would stand resolved, the Three-Judge Bench adjourned the cases for six months, since the interest of the institutions and the students are well protected by various interim orders passed by the Apex Court from time to time.

19. After the decision in Association of Management of Private Colleges case (supra) a Two-Judge Bench of the Apex Court by order dated 17.4.2014 in SLP.(C)No.7277/2014 (Orissa Technical Colleges Association v. All India Council for Technical Education and others) permitted AICTE to proceed with the approval of institutions in terms of the Approval Process Handbook for the Academic Year 2014-15. The said order reads thus;

“In the counter affidavit filed on behalf of respondent No.1, i.e., All India Council for Technical Education (AICTE), it is stated that Approval Process Handbook (2013-14) is presently in force and the same has been extended and made applicable for the Academic Year 2014-15 as well. AICTE shall now proceed in accordance with the Approval Process Handbook for the Academic Year 2014-15 insofar as the members of the petitioner Association and all colleges and institutions situated similarly to the members of the petitioner Association are concerned and necessary orders shall be issued by AICTE within ten days. Prayer for interim relief is ordered accordingly.”

20. Later, a Four-Judge Bench of the Apex Court by order dated 9.5.2014 in I.A.Nos.2 & 3 of 2014 in SLP.(C)No.7277/2014 clarified the order dated 17.4.2014 and directed that, approval of AICTE is compulsory and mandatory for the conduct of a technical course including MBA/management course by existing affiliated technical colleges and also new technical colleges, which will require affiliation by a University for conduct of its technical courses/ programmes for the academic year 2014-15. The said order reads thus;

“The order dated 17.4.2014 passed by this Court is clarified and it is directed that prior approval of All India Council for Technical Education (AICTE) is compulsory and mandatory for conduct of a technical course including the MBA/Management course by an existing affiliated Technical College and also new Technical College which will require affiliation by a University for conduct of its Technical Courses/Programmes for the academic year 2014-15. The time given in the order dated 17.4.2014 is extended by 10.6.2014.”

21. AICTE has released a public notice on 11.5.2014, published in the website on 13.5.2014, inviting application for approval for the academic year 2014-15, stating that, in view of the aforesaid orders passed by the Apex Court, prior approval of AICTE is compulsory for the conduct of technical courses including management/MBA courses by an existing affiliated technical college and also new technical college which will require affiliation by a University for the conduct of its technical courses/programmes for the academic year 2014-15.

22. The aforesaid public notice issued by AICTE on 11.5.2014, to the extent of insisting AICTE approval for the conduct of technical courses/programmes by the colleges affiliated to Universities, which came into existence after the judgment of the Apex Court in Association of Management of Private Colleges case (supra), was under challenge in W.P.(C) No.453/2014 filed before the Apex Court. However, the said challenge was repelled by a Two-Judge Bench of the Apex Court in its order dated 28.5.2014 in W.P.(C)No.453/2014 (Delhi Technical Campus v. All India Council for Technical Education and another) observing that, since the impugned public notice has been issued pursuant to the directions of the Apex Court in its orders dated 17.4.2014 and 9.5.2014, it would be difficult to allow the prayer quashing the said notice. Para.8 of the order reads thus;

“8. In view of the facts stated above, as of today the position is that on the one hand, there is judgment of this Court in Association of Management of Private Colleges (supra) which holds that no approval from AICTE is required. On the other hand, there are orders dated 17.4.2014 and 9.5.2014 passed by this Court in SLP.(C) No.7277 of 2014 directing the AICTE to issue a public notice and direct the colleges to seek approval from AICTE. Since the impugned public notice has been issued pursuant to the directions contained by this Court in orders dated 17.4.2014 and 9.5.2014, it would be difficult to allow the prayer quashing the said public notice.”

23. Seeking extension of the interim orders dated 17.4.2014 and 9.5.2014 for the academic year 2015-16, AICTE filed I.A.No.9 of 2014 in SLP.(C)No.7277/2014. Another relief sought for in the said application was an order directing that prior approval of AICTE is compulsory and mandatory for conduct of a technical course including MBA/management courses by an existing affiliated technical college and also new technical college, which will require affiliation by a University for conduct of its technical courses/ programmes for the academic session 2015- 16. The interim relief as prayed for in I.A.No.9 of 2014 was granted by order dated 15.12.2014.

24. Based on the aforesaid order, AICTE issued another public notice for the academic year 2015-16, pursuant to which various technical institutions, including institutions imparting technical education in the filed of architecture, approached AICTE for approval. At that juncture, the Council of Architecture approached the Apex Court in I.A.No.11 of 2015 in SLP.(C) No.7277/2014 seeking clarification of the orders dated 17.4.2014 and 15.12.2014, pointing out that, even if the concerned institute has an approval from AICTE, the students who complete their studies from the said institute would not be permitted to practice as Architects, if the institute where they have studied is not having approval from the Council of Architecture. By order dated 27.4.2015, the Apex Court disposed of I.A.No.11 of 2015 clarifying that, it would be open to the institutes which have approval by AICTE and which are imparting studies in the field of architecture to get themselves approved by the Council for Architecture so that the students passing out from their institutes may not have to face any problem. The order dated 27.4.2015 in I.A.No.11 of 2015 reads thus;

“Upon hearing the learned counsel, we find that in pursuance of a public advertisement issued by the AICTE marked as ‘Public Notice For Approval Process 2015-2016’, some of the institutions had approached the AICTE for getting its approval. The grievance which has been ventilated by the Council of Architecture is that even if the concerned institution has an approval from the AICTE, the students who are imparted studies in the said institute would not be permitted to practice as architects, if the institute where they have studied is not having approval from the Council of Architecture. It is clarified that it would be open to the institutes who have approval by the AICTE and who are imparting studies in the field of architecture may also get themselves approved by the Council for architecture so that the students passing out from their institutes may not have to face any problem. The application stands disposed of with above clarifications.”

25. By another order dated 27.4.2015 in I.A.No.12 of 2014 in in SLP.(C)No.7277/2014 the Apex Court permitted AICTE to process the applications of technical institutions for extension of approval, variation of intake, new courses, establishment of new technical institutions, etc., in accordance with the new AICTE Approval Process Handbook (2015-2016). However, it was clarified that, if the institutions approach for enhancement/variation of intake, it should approach through National Board of Accreditation (NBA). Later, by order dated 1.9.2015 in SLP.(C)No.7277/2014, a Three-Judge Bench of the Apex Court, while granting leave to appeal, ordered that the adinterim relief granted earlier shall continue. Still later, another Three-Judge Bench of the Apex Court by order dated 6.1.2016 in Civil Appeal No.6938/2015 ordered that, AICTE will be free to publish for the Session 2016-2017 and for the academic sessions following thereafter, AICTE Approval Process Handbook as in the past and regulate the subject matter relating to technical institution as mentioned above, including MBA/management courses, in accordance with the said handbook. The order dated 6.1.2016 in Civil Appeal No.6938/2015 arising out of SLP.(C) No.7277/2014 reads thus;

“We have heard Mr.Tushar Mehta, learned ASG appearing for All India Council for Technical Education (AICTE) who has drawn our attention to interim orders dated 15.12.2014, 27.04.2015 and 2 06.05.2015. He submits that in terms of the said orders AICTE has been publishing requisite Approval Process Hand-book on an annual basis for regulating the conduct of technical courses including those in Management by existing and new affiliated Technical Colleges. He submits that since the final disposal of the main matter is likely to take some more time, the interim arrangement already made for the previous years in terms of the orders mentioned above could be continued for the year 2016-2017 and for the years to follow thereafter. We see no reason to decline that prayer. It is evident from the orders earlier made that this Court has permitted AICTE to process all applications of technical institutions for extension of approval, variation of intake, start of new courses, establishment of new technical institutions etc. in accordance with the AICTE Approval Process Handbook published by the AICTE from year to year. That being so, AICTE can in our opinion be left free to continue publishing the Approval Process Handbook from year to year in future also till orders to the contrary are passed by this Court. We accordingly allow this application and direct that AICTE shall be free to publish for the Session 2016-2017 and the academic sessions following thereafter the requisite AICTE Approval Process Handbook as in the past and regulate the subject matter relating to technical institution as mentioned above including MBA/management courses in accordance with the said hand-book.”

26. The orders of the Apex Court referred to hereinbefore would make it clear that, though a Two-Judge Bench of the Apex Court in Association of Management of Private Colleges case (supra) held that, the role of AICTE vis à vis the Universities is only advisory/recommendatory and not as an authority empowered to issue and enforce any sanctions by itself, except submitting a report to University Grants Commission for appropriate action, by the subsequent order of a Four-Judge Bench dated 17.4.2014 in I.A.Nos.2 & 3 of 2014 in SLP.(C) No.7277/2014 the Apex Court has made it clear that, the approval of AICTE is compulsory and mandatory for the conduct of a technical course including MBA/management courses by existing affiliated technical colleges and also new technical colleges, which will require affiliation by a University for the conduct of its technical courses/programmes for the academic year 2014-15. Later, the said order was extended for the academic year 2015-16. Still later, a Three-Judge Bench of the Apex Court by order dated 6.1.2016 in Civil Appeal No.6938/2015 (arising out of SLP.(C)No.7277/2014) has ordered that, AICTE will be free to publish for the Session 2016-2017 and for the academic sessions following thereafter, AICTE Approval Process Handbook as in the past and regulate the subject matter relating to technical institution as mentioned above, including MBA/management courses, in accordance with the said handbook. As far as the institutions imparting studies in the filed of architecture are concerned, the Apex Court has clarified in its order dated 27.4.2015 in I.A.No.11 of 2015 in SLP.(C) No.7277/2014 that, it would be open to such institutes which have approval by AICTE and which are imparting studies in the field of architecture to get themselves approved by the Council for Architecture so that the students passing out from their institutes may not have to face any problem. In view of the orders of the Apex Court referred to hereinbefore, the decision of the Apex Court in Jaya Gokul‘s case (supra) still remains the authority in the matter of policy consideration by the State Government in the field of technical education.

27. AICTE (Grant of Approvals for the Technical Institutions) Regulations, 2012, issued in exercise of the powers conferred under sub-section (1) of Section 23, read with Sections 10 and 11 of the AICTE Act, which came into force with effect from 27.9.2012, contain detailed procedure for Grant of Approval for Technical Institutions, extension of approval, increase/ reduction of intake, etc. Clause 4.1 of the said Regulations deals with approval for establishing a new Technical Institution and other related matters and Clause 4.2 deals with extension of approval, introduction of new courses, change in intake capacity, etc. Clause 4.14 of the said Regulations provides that, the State Government/Union Territory Administration and the affiliating University may forward their views on the applications received under Clause 4.1 and Clause 4.2 to the concerned Regional Offices of AICTE, as prescribed in the Approval Process Handbook. As per Clause 4.15 of the Regulations, the views of the State Government/Union Territory Administration and the affiliating University, if received in time as per the schedule prescribed in the Approval Process Handbook and the Expert Committee recommendations in case of applications received under Clause 4.1 and Clause 4.2 as applicable, shall be considered by the Regional Committee for further processing for grant of approval. If the views of the State Government/Union Territory Administration and the affiliating University are not received, within the time schedule prescribed in the Approval Process Handbook, AICTE will proceed further for completion of approval process. Therefore, once approval has been granted by AICTE following the procedure laid down in the AICTE Act and the Regulations made thereunder, and the University has also granted provisional affiliation for the course, there is no scope for any further objection or approval by the State Government. As made clear by the Apex Court in Jaya Gokul‘s case (supra), if any fresh facts came to light after an approval was granted by AICTE or if the State felt that some conditions attached to the permission are required by AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action.

28. On the other hand, the Council of Architecture (Minimum Standards of Architectural Education) Regulations, 2015 framed in exercise of the powers conferred by clauses (e), (g), (h) and (j) of sub-section (2) of Section 45, read with subsection (1) of Section 45 and Section 21 of the Architects Act, do not contain a provision requiring the Executive Committee of the Council to ascertain the views of the State Government/Union Territory Administration in the matter of approval of a new/existing institution imparting architectural course. However, clause (3) of Regulation 10 provides that, the Executive Committee may ask the University or examining body, wherever required, to furnish its views/observations on report of the Inspectors, within a specified period and upon receipt of such observations, may decide on the same. Similarly, clause (4) of Regulation 10 provides further that, the decision of the Executive Committee shall be communicated to the institution, University and other concerned authorities along with a copy of the report of Inspectors and observations of the Executive Committee to ensure that the deficiencies, if any, in the conduct of architecture course are removed and the norms and standards prescribed by the Council are followed.

29. Regulation 12 of the said Regulations deals with the powers of the Council of Architecture to appoint Inspectors to inspect the institution which has applied for approval and recognition of its course of study or is providing recognised qualifications and to see that the course is run in conformity with the standards laid down by the Council. Clause (6) of Regulation 12 provides that, the Executive Committee of the Council may ask the University or examining body, wherever required, to furnish its views/observations on the report of the Inspectors within 15 days and upon receipt of such observations, may decide on the same. Clause (6) of Regulation 15 mandates that, the institutions imparting architecture course must have valid affiliation with a University established by an Act of the Central or State Legislature or conferred authority by law to award Degree in Architecture and that, no admission shall be made by the institution without valid affiliation with a University. Regulation 16 empowers the Executive Committee of the Council to initiate action, including withdrawal of recognition under Section 20 of the Act, against any institution conducting architecture course in violation of the minimum standards prescribed by the Council.

30. The provisions under the Regulations framed by the Council of Architecture referred to hereinbefore, make it explicitly clear that, if the State Government finds that an institution is conducting architecture course in violation of the minimum standards prescribed by the Council, it would be always open to the Government to write to the said Council and also to the affiliating University, to enable them to initiate appropriate action against the said institution, including withdrawal of recognition as contemplated under Section 20 of the Act.

31. Now reverting back to the facts of the instant case, based on the request of the petitioner, the 2 nd respondent Council vide Ext.P4 communication granted approval for the additional intake of 40 seats for B.Arch. course for the academic year 2016- 17. Based on Ext.P4 approval and the recommendation of the District Level Inspection Commission, Palakkad, the Syndicate of the 4 th respondent University has recommended permanent increase of 40 seats for B.Arch. course and the minutes of the Syndicate meeting was forwarded to the 1 st respondent State for consideration and concurrence, vide Ext.P5. Thereafter, petitioner approached the 3 rd respondent for NOC to execute agreement with the Government for the additional intake of 40 seats and the 3 rd respondent vide Ext.P6 forwarded the said request to the Government, for issuance of administrative sanction and NOC.

32. Though, on 5.8.2016 this Writ Petition was considered for interim order along with connected matters, on noticing that Ext.P5 communication relied on by the petitioner would not show that the 4 th respondent University has granted provisional affiliation for the additional intake of 40 seats sanctioned by the 2 nd respondent Council, the Registry was directed to list the matter on 6.8.2016 at 1.45 pm.

33. On 6.8.2016, the learned counsel for the petitioner sought time to ascertain whether the 4 th respondent University has granted provisional affiliation for the additional intake for B.Arch. course sanctioned for the academic year 2016-17. By order dated 6.8.2016, the petitioner was also directed to serve a copy of the Writ Petition to the learned Standing Counsel for the 2 nd respondent Council and also to take necessary steps to implead the AICTE and also the Admission Supervisory Committee as additional respondents. Thereafter, the petitioner has also filed various interlocutory applications for impleadment, to accept additional documents, etc.

34. During the course of arguments, the learned Standing Counsel for the 4 th respondent University, on instructions, would submit that the University has not granted provisional affiliation for the additional intake of 40 seats granted by the 2 nd respondent Council vide Ext.P4. Then, the learned counsel for the petitioner would submit that, once the 2 nd respondent Council has granted approval for the additional intake, the petitioner cannot be prevented from admitting students against the said additional intake, merely for the delay on the part of the 4 th respondent University in granting provisional affiliation. Further, in view of the approval granted by the 2 nd respondent Council, the University cannot withhold provisional affiliation.

35. As evident from Ext.P4 approval for additional intake and also the additional documents produced before this Court on 9.8.2016 along with I.A.No.12753/2016, the approval for the additional intake was originally declined by Ext.P13 order of the 2 nd respondent Council dated 26.4.2016 and the petitioner was even issued a show cause notice as to why the existing intake in its institution for B.Arch. course be reduced from 40 to 30 for the academic year 2016-17 for non-maintenance of minimum standards as prescribed by the Council. The petitioner submitted Exts.P14 and P15 representations dated 9.5.2016 and 13.6.2016 respectively, before the 2 nd respondent pointing out among other things that, they have received consent letter from identified faculty who would join during the academic year 2016-17. It was thereafter that, the 2 nd respondent Council by Ext.P4 order granted approval for the additional intake of 40 seats for the academic year 2016-17, subject to compliance of the Council Norms as contained in Annexure A and appointment of cadrewise faculty prior to the commencement of academic session.

36. Ext.P4 approval for additional intake granted by the 2 nd respondent Council makes it explicitly clear that the said approval is subject to compliance of the ‘Council Norms’ attached therewith as Annexure A. The said approval is also subject to appointment of adequate Faculty of Architecture at the institution as per the Council Norms, prior to commencement of academic session 2016-17. Along with I.A.No.12343/2016, the petitioner has produced the ‘Council Norms’ attached as Annexure A to Ext.P4 letter of approval. As mandated by Clause (6) of Regulation 15 of the Council of Architecture (Minimum Standards of Architectural Education) Regulations, 2015, it has been provided in Clause (2) of Annexure A Council Norms as under.

“2. The institutions must have valid affiliation with a University established by an Act of the Central or State Legislature or conferred authority by law to award Degree Course in Architecture. No admission shall be made by the institution without valid affiliation with a University.”

37. As evident from Ext.P2 order dated 25.5.2013, in order to admit students against the annual intake of 40 seats originally granted by the 2 nd respondent Council, the 4 th respondent University has granted provisional affiliation for the academic years 2013-14 and 2014-15. Ext.P8 order dated 17.6.2016 produced along with I.A.No.12753/2016 would show that the University has extended the said provisional affiliation for the academic year 2015-16 as well. Admittedly, the petitioner is not having provisional affiliation from the 4 th respondent University for the additional intake of 40 seats granted in Ext.P4 order of the 2 nd respondent Council. The petitioner has also not chosen to approach this Court seeking appropriate relief against the 4 th respondent University. In the absence of any provisional affiliation by the University, the petitioner cannot be permitted to make admission against the additional intake sanctioned for B.Arch. course for the academic year 2016-17, from the rank list prepared by the 5 th respondent, i.e., the Commissioner for Entrance Examinations.

38. Along with I.A.No.12611 of 2016, the petitioner has produced Ext.P7 Government order dated 30.6.2016 approving the fee structure and allotment of seats by the 5 th respondent Commissioner for Entrance Examinations in the Self Financing Architecture Colleges in the State under the Architecture College Management Association, in which the management of the petitioner college is also a member, based on a consensual agreement executed on 21.6.2016. As per the said order, allotment to 50% of the seats set apart under Government merit quota shall be made from the rank list prepared by the 5 th respondent in terms of the prospectus for admission to Professional Degree Courses-2016. Clause (iii) of Para.11.6.8 of the said prospectus provides that, allotment/admission to Engineering courses will not be made after 15 th August of every year, as per the judgment of the Apex Court dated 13.12.2012 in Civil Appeal No.9047 and 9048 of 2012

# Parshvanath Charitable Trust v. AICTE, (2013) 3 SCC 385

Pursuant to the provision under the prospectus, the 5 th respondent, vide notification dated 30.7.2016, conducted online filling up of vacant seats in Engineering/Architecture Courses, on 5.8.2016, and as per the said notification the managements are authorised to fill up the remaining seats through spot admission on or before 15.8.2016.

39. In W.P.(C)No.23318/2016 filed by the College of Engineering and Technology, Payyannur, which institution has been granted approval by AICTE and Council of Architecture for starting B.Arch. course during the academic year 2016-17, which institution has also obtained affiliation for the said course from APJ Abdul Kalam Technological University, this Court has granted an interim order on 5.8.2016, directing the Commissioner for Entrance Examinations to provisionally conduct spot admission on or before 10.8.2016 to 50% Government merit seats and the management was permitted to provisionally fill up the seats under management quota and also the seats remaining unfilled as on 10.8.2016 under Government merit quota, strictly in terms of the approval granted by the Admission Supervisory Committee for the existing courses in its Engineering College and in accordance with the terms of the consensual agreement/ prospectus approved by the said Committee in respect of the existing Courses. In the absence of any provisional affiliation granted by the 4 th respondent University for the additional intake, such a course cannot be adopted in the instant case.

40. The learned counsel for the petitioner and also the learned Standing Counsel for Admission Supervisory Committee would contend that, the judgment of the Apex Court in Parshvanath Charitable Trust‘s case (supra) was in context of the Regulations issued by AICTE and as such the cut off date of 15 th August for making admission to Engineering courses has no application in the case of B.Arch course conducted in Architectural Colleges, on the basis of the approval granted by the Council of Architecture which institutions do not have any approval from the AICTE. The learned counsel would contend that, though the said cut off date may have relevance in respect of B.Arch course conducted in the Engineering Colleges with the approval of AICTE, in respect of Architectural Colleges, which do not have any approval of AICTE, the last date for making admission is 30th August, as the date of commencement of B.Arch. classes prescribed by the Council of Architecture is 1 st September. We do not find it necessary to go into the said issue, in view of the finding that, in the absence of any provisional affiliation granted by the 4 th respondent University, the petitioner is not entitled to make admission against the additional intake sanctioned for B.Arch. course for the academic year 2016-17.

41. We also make it clear that, we have not expressed anything on the contention raised by the learned counsel for the petitioner and also the learned Standing Counsel for the 4 th respondent University that the approval from AICTE is not necessary for Architectural Colleges conducting only B.Arch. course. In the result, this writ petition fails and the same is dismissed. No order as to costs.

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