Judgment:
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY,THE13H DAY OF FEBRUARY201424TH MAGHA, 1935 WA.No. 1753 of 2013 () IN WP(C).29696/2012 -------------------------------------------- AGAINST THE JUDGMENT
IN WP(C) 29696/2012 of HIGH COURT OF KERALA DATED1010-2013 APPELLANT(S)/1ST RESPONDENT: ------------------------------------------------- UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR THIRUVANANTHAPURAM - 695 034. BY ADV. SRI.GEORGE POONTHOTTAM,STANDING COUNSEL FOR KERALA UNIVERSITY. RESPONDENT(S)/PETITIONER AND2D RESPONDENT: ------------------------------------------------------------------------------ 1. ALL SAINTS COLLEGE REPRESENTED BY ITS MANAGER, KADAKAMPALLI VILLAGE THIRUVANANTHAPURAM - 695 036.
2. GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY DEPARTMENT OF HIGHER SECONDARY EDUCATION SECRETARIAT,THIRUVANANTHAPURAM - 695 001. R2 BY GOVERNMENT PLEADER SHRI ABOOBACKER R1 BY SRI.P.RAVINDRAN (SENIOR ADVOCATE) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON0512.2013, THE COURT ON1302.2014 DELIVERED THE FOLLOWING: K.M.JOSEPH & A.HARIPRASAD, JJ.
-------------------------------------- W.A. No.1753 of 2013 -------------------------------------- Dated this the 13th day of February, 2014. JUDGMENT
A.Hariprasad, J.
Appellant University is the 1st respondent in the petition under Article 226 of the Constitution of India, filed by the 1st respondent in this appeal, claiming the following reliefs: "i. call for the records leading to Ext.P5 and quash the same by issue of a writ of certiorari; ii. call for the records leading to Ext.P1 to the extent it grants the consent for commencement of courses in the aided sector and quash the same by the issue of a writ of certiorari; iii. issue a writ in the nature of mandamus commanding the 1st respondent to grant consent for commencement of Post Graduate courses in Physics, Chemistry, Botany and Zoology as mentioned in Ext.P1 in the unaided sector as mentioned in Ext.P4 order of the Government; iv. issue a writ in the nature of mandamus commanding the 1st respondent University to grant affiliation to M.Sc. Physics, Chemistry, Botany & Zoology in the petitioner's college in the unaided sector forthwith; WANo.1753/2013 2 v. issue any other such writ, order or direction as this Hon'ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case; and vi. award the costs of this case to the petitioner." 2. Briefly put, the facts are as follows: Writ petitioner is an educational institution affiliated to the appellant University. Petitioner college is conducting various courses approved by the appellant University. Petitioner college was established in the year 1964 and is one of the oldest educational institutions in Thiruvananthapuram City, located in the coastal belt. In order to provide access to higher education to the students of coastal area, petitioner college decided to start Post Graduate Courses in various science subjects and also in B.Com. Tourism and Travel Management. Petitioner submitted an application for grant of affiliation of the said courses and its application was considered by the appellant University. Ext.P1 is the letter of consent issued by the appellant University. In Ext.P1, a rider was added that the new courses should be on aided basis. Writ petitioner's submission is that whether the course should be aided or unaided is a matter for the 2nd respondent Government to decide. When the petitioner approached the WANo.1753/2013 3 Government for no objection certificate to commence the courses, the Government issued Ext.P2 communication according sanction as unaided/self financing courses, provided the petitioner college executed an agreement with the Government agreeing to abide by certain conditions. As required in Ext.P2, the petitioner executed an agreement with the Government and that is Ext.P3. Pursuant to Ext.P3, the Government issued no objection certificate to start various courses as self financing/unaided courses. Ext.P4 is the Government order issued in that behalf. On receipt of Ext.P4, the petitioner again approached the appellant University for affiliation. To the shock and surprise of the petitioner, it received Ext.P5 communication whereby the consent issued on 23.06.2012 was withdrawn. Reason stated for withdrawal of consent is that the appellant University on a previous occasion decided not to grant affiliation for unaided courses in aided educational institutions. Ext.P6 is the copy of resolution obtained by the petitioner in connection with this matter. Petitioner contended that the decision taken by the University is per se illegal and without any basis. Appellant University is legally bound to grant affiliation if the petitioner college satisfied the norms prescribed. Hence the writ petition.
3. Appellant University filed a counter statement refuting the WANo.1753/2013 4 allegations raised in the petition. Ext.P1 order dated 23.06.2012 pertained to the academic year 2012-2013. Petitioner did not offer any reason as to why there was delay in filing the writ petition. Therefore the petition is liable to be dismissed on the ground of delay and laches. Fact asserted in the petition that there is no other college having Post Graduate Courses in various disciplines within a radius of 10 kms. of the petitioner's college is denied by the appellant University by citing names of other colleges. Appellant University, following various provisions in the Kerala University First Statutes, 1977, considered the application submitted by the petitioner college. After conducting a local enquiry, Ext.P1 letter of consent was granted by the University. After considering the views of the Government as revealed from Ext.P4 and other relevant matters, the Syndicate of the University evolved a policy not to grant unaided courses in aided colleges. The appellant University has every power to do so by virtue of the provisions in the Statutes. Challenge against Exts.P1 and P5 is legally unsustainable. There is no justification in the contention of the petitioner college that the appellant University has no authority to refuse grant of affiliation of the courses in unaided sector. Appellant University, as per the provisions of the relevant Statutes, has all the powers to consider the request for affiliation and take appropriate decision in the matter. The writ WANo.1753/2013 5 petition is legally misconceived and is liable to be dismissed.
4. Writ petitioner filed a reply affidavit answering the contentions raised by the appellant University.
5. Heard Shri George Poonthottam, learned Standing Counsel for the appellant and Shri P.Ravindran, learned Senior Counsel for the 1st respondent/writ petitioner. Shri Aboobacker, learned Government Pleader, was also heard.
6. Shri George Poonthottam submitted that the learned Single Judge erred in finding that the University cannot just ignore the facilities provided by the colleges for starting a Post Graduate Course and then refuse the request on the grounds which are not specifically provided under the Statutes. Appellant is further aggrieved by the finding of the learned Single Judge that there is no specific restriction under the Statute to provide an unaided course in an aided college.
7. Our attention was drawn to various provisions in the Kerala University Act, 1974 (hereinafter referred to as "the Act") and the Kerala University First Statutes, 1977 (hereinafter referred to as "the Statutes"). Section 2(7) of the Act defines the term 'college' in the following lines: "(7) "college" means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the WANo.1753/2013 6 Statutes, Ordinances and Regulations." In Section 2(11) of the Act the term 'Government college' is defined thus: "(11) "Government college" means a college maintained by the Government and affiliated to the University." The term 'private college' is defined in Section 2(16) as under: "(16) "private college" means a college maintained by an educational agency other than the Government or the University and affiliated to the University." In Section 2(28 A) of the Act the term 'unaided college' is defined thus: "(28A) "Un-aided College" means a private college which is not entitled to any financial assistance from the Government or the University." 8. Shri P.Ravindran, learned Senior Counsel for the writ petitioner would contend that the term 'aided college' is not defined in the Act and the definition of 'unaided college' was inserted only in the year 1995 by Act 9 of 1995. Education institutions get aid on account of agreements executed by them with the Government. Admittedly the writ petitioner college is an aided college which had executed an agreement with the Government long prior to 1995.
9. Main objection raised by the appellant University is that WANo.1753/2013 7 unaided courses cannot be started in an aided college. According to the learned counsel for the appellant University, there are ever so many reasons to justify this considered view taken by the University. If unaided courses are allowed in aided colleges, University will be virtually allowing the college management to collect higher fees for that courses. Certainly such an eventuality may not be in the better interest of the student community. Besides, if unaided courses are allowed in aided colleges, the service of the teaching and non-teaching staff of the aided stream will be used for unaided courses, which cannot be permitted. Further, new courses are to be conducted in separate blocks. If petitioner is really desirous of imparting education to children of the poorer sections of society, then it could have established an unaided/self financing college which will not be in conflict with the policy decision of the University.
10. Per contra, learned Senior Counsel for the writ petitioner contended that there is no provision either in the Act or in the Statutes prohibiting starting of unaided courses in an aided college. It is also argued for the writ petitioner that there is nothing wrong in the Government giving aid for one course and giving no aid for another course in the same college. It is also submitted that the University is legally bound to grant affiliation provided the norms prescribed are satisfied by the writ petitioner WANo.1753/2013 8 college. Learned counsel for the appellant University submitted that Section 5 of the Act enumerates the powers of the University. Our attention was drawn to Section 5(xxiv) of the Act too, which reads as follows: "(xxiv) to affiliate to itself colleges in accordance with the provisions of this Act, and the Statutes, Ordinances and Regulations and to withdraw affiliation of colleges;".
11. Section 23 of the Act deals with the powers of the Syndicate. On a reading of Section 23(i) of the Act, it can be seen that the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate. And the power to affiliate institutions in accordance with the terms and conditions prescribed in the Act and Statutes is also vested with the Syndicate. Section 56(2) of the Act is the further provision relating to affiliation of colleges. Section 56(2) of the Act is quoted hereunder for clarity. "(2) The terms and conditions of affiliation of a college or of affiliation in new courses in an affiliated college and the procedure to be followed by the Syndicate in granting such affiliation, including the period within which the Syndicate shall consider an application under sub-section (1), shall be prescribed by the Statutes: WANo.1753/2013 9 Provided that the Chancellor may, by notification in the Gazette, for reasons to be specified in the notification, extend the period within which the Syndicate shall consider any application under sub-section (1), whether such period has already expired or not, by such further period, not exceeding one year, as may be specified in such notification." Chapter XXIV of the 1977 Statutes deals with the procedure to be adopted in granting affiliation to new colleges and new courses. Learned counsel for the appellant University contended that Statutes applicable to aided colleges are not applicable to unaided colleges. In order to reinforce this contention, separate definitions of Government college, private college and unaided college were brought to our notice. Learned counsel for the appellant University drew our attention to Ext.R1(a), the application submitted by the petitioner college for affiliation of new Post Graduate Courses in the college during 2012-2013. Admittedly the request was to start the courses in the aided sector. It is also an undisputed fact that the fees to be paid in the matter of application for starting courses in the aided sector and those in the unaided sector are different. However, on the basis of Ext.R1(a), the appellant University as per Ext.P1 granted sanction for starting those courses. It is made clear in Ext.P1 that the courses WANo.1753/2013 10 requested for should be on aided basis. But when the writ petitioner approached the Government for no objection certificate, as per Ext.P2 order, the Government sanctioned the courses only in self financing/unaided sector. In tune with Ext.P2 the petitioner college has executed Ext.P3 agreement for starting courses in self financing/unaided sector. Subsequently as per Ext.P4 Government Order no objection certificate was issued to the petitioner college for starting self financing/unaided courses in those subjects. The terms and conditions in Ext.P3 agreement were incorporated in Ext.P4. Thereafter the appellant University issued Ext.P5, whereby they refused to grant affiliation/approval for the unaided courses in the aided college relying on Ext.P6.
12. Learned Senior Counsel for the writ petitioner college submitted that the so called policy decision taken by the University, not to grant affiliation for unaided courses in aided colleges, had been breached by themselves on earlier occasions. To strengthen this contention Exts.P7 and P8 were produced. As per Ext.P7 as early as on 24.01.2006 certain unaided courses were started in an aided college. Ext.P8 shows that in TKM College of Engineering, Kollam, which is an aided institution, appellant University had sanctioned unaided courses as early as on 03.01.2007. Learned Senior Counsel contended that the said policy of the WANo.1753/2013 11 University not to start unaided courses in Government/aided colleges has not been followed consistently in many other instances too. Although as per Ext.P6 the appellant University demanded the Government to desist from granting unaided courses in aided/Government colleges, the Government has not accepted the proposal. Further, it is contended that it is for the Government to decide whether courses in such colleges will have to be started in aided or unaided sector. Exts.P7 and P8 would reveal that the above said policy of the appellant University had not been adhered to by them on earlier occasions. Per contra, learned counsel for University contends that Exts.P7 and P8 concern institutions covered by AICTE approvals.
13. Based on a decision rendered by a Division Bench of this Court in W.A.No.2096 of 2009 (Calicut University & another v. Christ College, Irinjalakuda) it was contended by the learned Senior Counsel that for starting unaided courses in an aided college, the University can, at the most, insist that there must be separate buildings and infrastructure facilities. According to the petitioner college, they have all facilities for starting new courses as sought for and the University was satisfied with the availability of infrastructural facilities set up by the college.
14. Considering the entire matter, we are of the view that the WANo.1753/2013 12 learned Single Judge was right in holding that in Ext.P5 no specific reason was mentioned for not permitting the petitioner college to start the courses in the unaided sector. Learned counsel for the appellant University submitted that the Syndicate of the University has absolute power in such matters. Even if we accept this argument, the finding entered by the learned Single Judge, that Ext.P5 does not show any reason for disallowing the claim of the petitioner college, is to be upheld. An authority like the appellant University is bound to give reasons for decisions taken by it, in a matter like this. According to the learned Senior Counsel for the writ petitioner, the Government sanctioned unaided courses in the aided college considering the financial implications of starting aided courses. It is also submitted on behalf of the writ petitioner that the college is now being shunt by the Government and the University from one end to the other for no reason. Even if we assume that the Syndicate of the University has absolute power to decide in either way, we are of the considered opinion that the University, as a statutory authority, is bound to give reasons for the decision as its decisions are amenable to the process of judicial review. Learned counsel for the University is aggrieved by the observations in paragraph 15 of the judgment of the learned Single Judge that there is no specific restriction under the Statutes to provide an unaided WANo.1753/2013 13 course in an aided college. However, no specific provision has been relied on by the University in Ext.P5 to turn down the request of the petitioner college. Learned Single Judge rightly set aside Ext.P5 and remitted the matter to the appellant University for taking a proper decision on the request of the petitioner college. We do not find any infirmity in the judgment passed by the learned Single Judge warranting an interference. Therefore, the appeal is dismissed confirming the judgment of the learned Single Judge. However, we make it clear that none of the observations in the judgment of the learned Single Judge will prevent the appellant University from taking appropriate decision based on the provisions in the Act or the Statutes. K.M.JOSEPH, JUDGE. A. HARIPRASAD, JUDGE. cks