All Kerala Chakkala Nair/Chakkala Samudaya Sanghom Trust v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939** **WP(C).No. 5950 of 2018** **---------------------** ## **PETITIONER(S)** **------------** **ALL KERALA CHAKKALA NAIR/ CHAKKALA SAMUDAYA SANGHOM TRUST, 'LAXMI VILAKAM, T.C.41/1527, ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM-695 009, REPRESENTED BY THE PRESIDENT K.SURENDRAN NAIR, AGED 69 YEARS, S/O.KRISHNA PILLAI.** **BY ADVS.SRI.R.SUDHISH, SMT.M.MANJU, SRI.A.N.PREMLAL.** ## **RESPONDENTS:** **------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE SECRETARY,** **DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **3. THE SECRETARY,** **DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **4. THE SECRETARY,** - **CENTRAL COUNCIL OF HOMEOPATHY, 61-65, INSTITUTIONAL AREA, OPPOSITE D-BLOCK, JANAKPURI, NEW DELHI-110 058.** **5. GOVERNMENT OF INDIA,** - **REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, CENTRAL SECRETARIAT, NEW DELHI-110 001.** **6. THE SECRETARY, DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT, GOVERNMENT OF INDIA, SHASTRI BHAVAN, NEW DELHI- 110 115.** **7. THE SECRETARY, DEPARTMENT OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA, SHASTRI BHAVAN, NEW DELHI- 110 115.** **WP(C).No. 5950 of 2018** **8. THE STATE PROJECT CO-ORDINATOR, RASHTRIYA UCHCHATAR SHIKSHA ABHIYAN, KERALA UNIVERSITY STADIUM BUILDING, (G.V. RAJA PAVILLION), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.** **9. KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR-680 596, REPRESENTED BY THE VICE CHANCELLOR.** - **ADDL. R10 IMPLEADED** **10. THE SECRETARY, AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **IS IMPLEADED AS PER ORDER DATED 16/03/2018 IN I.A. NO.5089/2018.** **R1 TO R3 & ADDL. R10 BY SR. GOVT. PLEADER SMT.NISHA BOSE. R4 TO R7 BY ADV. SRI.N.NAGARESH, ASSIST. S.G. OF INDIA. R9 BY SRI.P.SREEKUMAR, SC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs. 11/04/2018.** **WP(C).No. 5950 of 2018 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE TRUST DEED OF THE PETITIONER TRUST DATED 21.02.2007. EXHIBIT P2 COPY OF THE LEASE DEED EXECUTED ON 05.01.2018 BETWEEN THE PRESIDENT OF THE TRUST AND JACOB GEORGE.** - **EXHIBIT P3 COPY OF THE LEASE DEED EXECUTED ON 05.01.2018 BETWEEN THE PRESIDENT OF THE TRUST AND MR.MARYKUTTY JACOB. EXHIBIT P4 COPY OF THE LETTER ISSUED BY HUMAN RESOURCES DEVELOPMENT, GOVERNMENT OF INDIA DATED 11.01.2017 TO THE PRESIDENT OF THE TRUST. EXHIBIT P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TRUST DATED 20.11.2017 BEFORE THE CHIEF MINISTER.** - **EXHIBIT P6 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 01.01.2018.** - **EXHIBIT P7 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY TO GOVERNMENT OF KERALA WITH RESPECT OT THE ISSUANCE OF NO OBJECTION CERTIFICATE FOR HOMEO MEDICAL COLLEGE AND PHARMACY COLLEGE DATED 28/02/2018.** **EXHIBIT P8 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY TO GOVERNMENT OF KERALA FOR ISSUANCE OF NO OBJECTION CERTIFICATE FOR STAR ARTS AND SCIENCE COLLEGE AND B.ED. COLLEGE DATED 28/02/2018.** **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 11/04/2018.** **ANIL K. NARENDRAN, J. --------------------------------------------W.P.(C) No.5950 of 2018 --------------------------------------------Dated this the 19[th] day of March, 2018** ## **JUDGMENT** The petitioner, which is stated to be a Trust constituted for the purpose of development of Chakkala/Chakkala Nairs in the State of Kerala, which is having registration with the District Registrar, Thiruvananthapuram with registration No.2892/2007, has approached this Court in this writ petition seeking a writ of certiorari to quash Ext.P6 order of the 2[nd] respondent dated 01.01.2018 and seeking a writ of mandamus commanding the 1[st] respondent to consider Ext.P5 representation dated 20.11.2017 within a time limit to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding respondents 6 and 7 to provide financial support to establish new Schools/Colleges and Professional Colleges under the management of the petitioner Trust. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and the additional 10[th] respondent, the W.P.(C) No.5950 of 2018 :2: learned Assistant Solicitor General of India appearing for respondents 4 to 7 and also the learned Standing Counsel appearing for the 9[th] respondent University. Considering the nature of relief proposed to be granted, service of notice on the 8[th] respondent is dispensed with. 3. In Ext.P6 letter dated 1.1.2018, the 1[st] respondent has rejected Ext.P5 representation dated 20.11.2017 made by the petitioner for obtaining No Objection Certificate to start a Homeo Medical College on the ground that as per the present policy of the State Government, no permission can be granted for starting new educational institutions in private sector. 4. In **State of Kerala v. M.G.M.College of Arts and Science and others (2017 (3) KHC 965)** , a Division Bench of this Court held that since the right to education is a fundamental right, the Government cannot take a policy decision that no affiliation need to be granted to colleges. Further, grant of affiliation can only be restricted by a law and law means law made by the competent legislature and W.P.(C) No.5950 of 2018 :3: ## not by an executive fiat. Paragraph 10 of the said decision reads thus ; “10. Even otherwise, for, it affects the fundamental rights of parties to receive education and to impart education. Education, as noticed in the beginning, is an integral part of life and liberty. Such a right can be restricted not by a policy decision, but only by a law and law means law made by the competent legislature and not by an executive fiat. Further, a policy decision like this fetters future discretion. Such fetters cannot be put. This policy puts a complete embargo for all times that no such self financing institution can be allowed to be established. Such policy restricting future discretion is not reasonable, in any manner.” 5. In **Muthoot M. George Institute of Technology v. State of Kerala and Others** (judgment dated 09.04.2013 in W.P.(C) No.2554 of 2013 and connected cases), this Court held that the State Government cannot impose any moratorium to start self financing professional institutions. 6. In the light of the law laid down in the decision referred to supra, the reasoning of the 1[st] respondent in Ext.P6 cannot be sustained. In the result, Ext.P6 order is set aside and the 1[st] respondent State has to reconsider the W.P.(C) No.5950 of 2018 :4: request made by the petitioner on merits. 7. The learned Senior Government Pleader would submit that the request for grant of No Objection Certificate for starting a Homeopathy Medical College has to be addressed to the additional 10[th] respondent Secretary to Government, Ayush Department and that for starting an Arts and Science College has to be addressed to the 3[rd] respondent Secretary, Department of Higher Education. 8. The learned counsel for the petitioner would submit that the petitioner shall submit a proper representation before the 3[rd] respondent and the additional 10[th] respondent for the above purpose and the said respondents may be directed to consider the same and pass appropriate orders thereon, with notice to the petitioner, within a time limit to be fixed by this Court. 9. In such circumstances, this writ petition is disposed of with the following directions: i) The petitioner shall submit representation before the 3[rd] respondent seeking no objection to start an Arts and Science College and another representation before the W.P.(C) No.5950 of 2018 :5: additional 10[th] respondent seeking no objection to start a Homeopathy Medical College, within ten days from the date of receipt of a certified copy of this judgment. ii) If any such representations are received, the said respondents shall consider the same and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and after affording the petitioner an opportunity of being heard. iii) Necessary orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment. 10. The further relief sought for in this writ petition is left open to be raised before the appropriate authority at appropriate stage. It is made clear that this Court has not expressed anything on the merits of the claim made by the petitioner and it is for the 3[rd] respondent and also the additional 10[th] respondent to take an appropriate decision, strictly in accordance with law. Sd/- **ANIL K. NARENDRAN JUDGE** bpr