## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938**
**WP(C).No. 18946 of 2016 (P)**
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## **PETITIONER(S):**
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**BSD EDUCATION SOCIETY, REG. NO. TVM/TC/1099/2014, OLATHANNI, NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, BDS EDUCATION SOCIETY, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN -695 133.**
**BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE. ADVS. SRI.S.PRASANTH, SRI.SOORAJ T.ELENJICKAL, SRI.P.A.MOHAMMED SHAH, SMT.MARY RESHMA GEORGE, SMT.V.A.HARITHA, SMT.SANDHYA R.NAIR, SMT.P.M.MAZNA MANSOOR.**
## **RESPONDENT(S):**
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**1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.**
**2. THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.**
**3. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM -695 033.**
**BY GOVT. PLEADER SRI.BABY THOMAS.**
- **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2016, THE COURT ON 10/08/2016 DELIVERED THE FOLLOWING:**
rs.
## **WP(C).No. 18946 of 2016 (P)**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:-**
**EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER.**
**EXHIBIT P2 A TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF THE PETITIONER.**
**EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION DATED 08-02-2016 SUBMITTED TO THE 2ND RESPONDENT BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WP(C).NO.6345/2016. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 19-05-2016. EXHIBIT P6(A) TRUE COPY OF THE PROCEEDINGS DATED 22-04-2016. EXHIBIT P6(B) TRUE COPY OF THE PROCEEDINGS DATED 03-02-2016. EXHIBIT P6(C) TRUE COPY OF THE PROCEEDINGS. EXHIBIT P6(D) TRUE COPY OF THE GO. NO. (MS)NO.16 DATED NIL. EXHIBIT P6(E) TRUE COPY OF THE G.O NO.(MS) NO.30/16 DATED 09-02-2016. EXHIBIT P6(F) TRUE COPY OF THE PROCEEDINGS NO. 8227 DATED 03-02-2016. EXHIBIT P6(G) TRUE COPY OF THE NOTE DATED 09-02-2016. EXHIBIT P6(H) TRUE COPY OF THE PROCEEDINGS NO. 8287 DATED 10-02-2016. EXHIBIT P6(I) TRUE COPY OF THE LETTER DATED 12-02-2016. EXHIBIT P6(J) TRUE COPY OF THE LETTER DATED 01-06-2015. EXHIBIT P6(K) TRUE COPY OF THE G.O. NO. (MS NO ..../16 DATED NIL. EXHIBIT P6(L) TRUE COPY OF THE G.O. NO. (MS NO ...../16 DATED NIL.**
**RESPONDENT'S EXHIBITS:NIL.**
**//TRUE COPY//**
## **P.S. TO JUDGE**
rs.
## **P.B.SURESH KUMAR, J.**
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## **WP(C).No.18946 of 2016-P.**
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Dated this the 10th day of August, 2016.
## **J U D G M E N T**
The petitioner is a registered society formed by the members of Nadar community, a recognised backward community in the State. The petitioner society has applied to the Government for permission to establish an Arts and Science College in the aided sector at Neyyattinkara. The application preferred by the petitioner has, however, been rejected by the Government as per Ext.P5 decision, holding that the Director of Collegiate Education has reported that there are four Arts and Science Colleges in the area proposed by the petitioner and that therefore there is no need to establish a new Arts and Science College in the area, in the aided sector. The case of the petitioner is that their proposal is to establish a college at Neyyattinkara and there is only one Arts and Science College at Neyyattinkara. It is alleged by the petitioner that two colleges referred to in Ext.P5 order are functioning at Parassala and
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Kovalam respectively and one is at Nedumangad. It is also the case of the petitioner that the college at Neyyattinkara is not in a position to cater the needs of the locality, especially the needs of the members of the Nadar community. It is the further case of the petitioner that they have applied for permission to establish the college in the aided sector based on the policy of the Government to sanction colleges in the aided sector for backward communities and that since other backward communities have been granted permission to establish several colleges during the relevant period in the aided sector, they are also entitled to be granted the permission sought by them. The petitioner, therefore, challenges Ext.P5 decision of the Government in this writ petition.
2. Heard the learned Senior Counsel for the petitioner as also the learned Government Pleader.
3. The learned Senior Counsel for the petitioner contended that in the light of the policy decision of the Government to permit backward communities to establish
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colleges in the aided sector, permission was given to other backward communities to establish colleges in the aided sector at the relevant time without assessing the need of the locality and the petitioner alone was denied permission sought, for want of political clout. According to the learned counsel, the reason stated by the Government to decline the permission sought by the petitioner, namely, that there is no educational need in the locality is, therefore, only a ruse to decline the permission sought. Ext.P6 series copies of the decisions taken by the Government granting permission to other backward communities to start aided colleges during the relevant period, have been relied on by the learned Senior Counsel to substantiate his contention that permissions have been granted without assessing the educational need of the locality to other communities. The learned Senior Counsel for the petitioner, relying on the decision of the Apex Court in **Anjuman-E-Islam v. State of Karnataka and another** [(2001)9 SCC 465], contended that since similar claims of other backward communities have been considered by
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the Government at the relevant time, the Government ought to have considered the claim of the petitioner also on the same lines. The learned Senior Counsel also contended that the factual finding rendered in Ext.P5 order that there are four colleges in the area is vague and incorrect. According to the learned Senior Counsel, three out of the four colleges referred to in Ext.P5 order are functioning at different places.
4. From the materials available on record, it is not clear whether the Government have accorded sanction to any community to establish a college in the aided sector without assessing the educational need of the locality. If the Government have granted permissions to establish colleges without conducting a study as to the need of the locality especially in the aided sector, the said permissions would be _per se_ illegal. If the Government evolves a policy to grant permission to backward communities to establish colleges in the aided sector, the same can be sanctioned only in an area where there exists a need. In the circumstances, even if it is taken that the Government have
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accorded sanction to other organisations to establish colleges in the aided sector without conducting a study as to the need of the locality, this Court cannot direct the Government to consider the case of the petitioner without conducting a study as to the need of the locality, for, the same would amount to extension of the benefit of the illegality to the petitioner.
5. It is seen that the stand taken by the Government in Ext.P5 is that there are four colleges in the proposed area and that therefore there is no need to establish a new college in the area. Ext.P3 request submitted by the petitioner would indicate that the petitioner has sought permission to establish a college at Neyyattinkara. The specific case of the petitioner is that out of the four colleges referred to in Ext.P5, three colleges are not situated at Neyyattinkara. Ground A of the writ petition reads thus:
“A. The report of the 3[rd] respondent Director of collegiate education that there are four aided/Government colleges functioning around the proposal area is factually incorrect and ill-conceived. Two out of the four colleges referred to in his report and extracted in Exhibit-P5, i.e. the VTM NSS College,
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Dhanuvachapuram and the KNM Government College, Kanjiramkulam are situated in other Assembly constituencies in the district viz., Parassala and Kovalam constituencies and the 3[rd] one i.e., Christian College, Katakkada is situated in a different Taluk viz. the Nedumangad Taluk. In the Neyyattinkara Assembly constituency there is only one Arts and Science College, i.e. the Government Arts & Science College, Kulathur which cannot cater to the need of any particular backward community. Therefore Exhibit-P5 is unreasonable.”
The facts pleaded in the said paragraph are not seen controverted by the Government. The report relied on by the Government to take the impugned decision is also not placed on record. Ext.P5 order does not indicate that the petitioner was heard by the Government to ascertain the place where they propose to start the college. It is thus evident that Ext.P5 decision has been taken without comprehending the exact place where the petitioner proposes to establish the college and without conducting a study as to the need of that locality. In the circumstances, I am of the view that the matter needs to be considered by the Government afresh.
6. In the result, the writ petition is allowed. Ext.P5 order is quashed and the Government is directed to consider
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Ext.P3 request afresh with notice to the petitioner and take appropriate decision thereon, within six weeks from the date of receipt of a copy of this judgment.
_**Sd/-**_
**P.B.SURESH KUMAR, JUDGE.**
_**Kvs/-**_
## _**// true copy //**_
