BSD Education Society v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **WP(C).No.41845 OF 2018(E)** ## **PETITIONER/S:** **BSD EDUCATION SOCIETY, REG NO TVM/TC/1099/2014,OLATHANNI,NEYYATTINKARA,THIRUVANANTH APURAM,REP BY ITS CHAIRMAN,BDS EDUCATION SOCIETY,NEYYATTINKARA,THIRUVANANTHAPURAM,PIN 695 133** **BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.SOORAJ T.ELENJICKAL SRI.C.R.SYAMKUMAR SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.SIDHARTH B PRASAD SRI.R.NANDAGOPAL** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP BY THE SECRETARY TO THE DEPARTMENT OF EDUCATION,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM695 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 STATE ATTORNEY SRI.K.V.SOHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C).41845/18** **2** ## **JUDGMENT** The petitioner Education Society is stated to be one belonging to the Nadar community, a recognised backward community. In the writ petition, it is aggrieved by Ext.P16 order of the 1[st] and 2[nd] respondents rejecting its request for permission to start a new Arts and Science College in Neyyattinkara Taluk in Thiruvananthapuram. The pursuit by the petitioner Society of a permission to start a new Arts and Science College has seen it travel through the portals of this Court on three occasions in the past. When its application was not considered by the State Government in 2016, the petitioner approached this Court through W.P.(C).No.6345 of 2016, which culminated in Ext.P4 judgment that directed the Government to consider the application within a period of one month from the date of receipt of a copy of the judgment. In Ext.P5 order dated 09.05.2016 that was passed thereafter, the Government took the stand that there was no educational need to start a new aided college in Neyyattinkara Taluk and rejected the application of the petitioner accordingly. The petitioner, therefore, challenged the said order before this Court through W.P.(C).No.18946 of 2016. The said writ petition was disposed by Ext.P6 judgment that quashed Ext.P5 order and directed the Government to consider the application of the petitioner afresh. It is **W.P(C).41845/18** **3** relevant to note that in the said judgment, this Court took note of the submission of the petitioner that out of the 4 colleges that were stated to have already commenced functioning, and referred to in Ext.P5 order to nonsuit the petitioner, 3 of the colleges were not situated within Neyyattinkara Taluk. It was therefore that this Court doubted the correctness of the factual findings in Ext.P5 order, quashed the same and directed the Government to re-consider the matter. Thereafter, the Government passed Ext.P7 order, dated 11.11.2016, where the stand taken was that a decision with regard to sanctioning of new colleges in Neyyattinkara was not finalised. It was also stated that there was a requirement of an applicant owning 5 acres of unencumbered land, which, according to the Government, the petitioner did not satisfy. It was also stated that the sanctioning of a new aided college involved a huge financial commitment to the State and an amount of approximately Rs.10 crores was the estimated financial commitment during the first year itself. The State was apparently not in a position to incur such expenditure at that point in time. The said reasons weighed with the Government while rejecting the application of the petitioner through Ext.P7 order. The petitioner was therefore before this Court yet again, through W.P. (C).No.41372 of 2016, challenging the decision of the Government. By Ext.P13 judgment, this Court set aside the impugned order of the Government and directed the Government to consider the matter afresh. It is seen from Ext.P13 judgment that the Court found that there was no proper assessment of the educational need conducted by the Government, and that the Government itself had not conducted a need analysis study while **W.P(C).41845/18** **4** sanctioning colleges in the academic year 2016-2017. It was also found that the Government had never insisted on any report of landed properties to be furnished by the applicants and that there was no proper need analysis done or any valid study of the financial implications undertaken by the Government while rejecting the application of the petitioner. The Government was, therefore, directed to consider the matter afresh, taking note of Ext.P9 report that had been obtained by the petitioner in the meanwhile to establish the educational need in the area. 2. It would appear that consequent to the directions in Ext.P13 judgment, a report as regards educational need in the area, as also the financial implication in respect of the college proposed by the petitioner, was prepared by the Deputy Director of Collegiate Education (Ext.P14). The said report was placed before the Government so as to enable the Government to take a fresh decision as directed by this Court. By Ext.P16 order, dated 06.04.2018, the application of the petitioner was once again rejected by the Government. In the said order, which is impugned in this writ petition, the stand of the Government is essentially that the decision to start new colleges in the higher education sector or in the aided sector in the State is a matter of Governmental policy, taking into consideration the density of existing institutions in and around the proposed area, as also the financial commitment that would be required of the Government if the new colleges were sanctioned. It is further stated that the Government is considering the preparation of a perspective plan for the State, based on which the necessity **W.P(C).41845/18** **5** for establishment of new colleges in the aided/unaided sector would be examined by the Government. As regards the application of the petitioner, the stand of the Government is that the college of the petitioner cannot be sanctioned at Neyyattinkara solely because there was a favourable report issued by the Deputy Director of Collegiate Education recommending the case of the petitioner. As the Government was in the process of developing a perspective plan on new Arts and Science Colleges and courses, applications would be called only after the development of the said perspective plan, and the petitioner could also respond to such a call for applications, at the appropriate time. Ext.P16 order also makes a reference to the financial implications for the Government consequent to the starting of new aided colleges, inasmuch as the Government would have to substantially contribute to the salaries and faculties of the staff of the aided colleges, which, in the opinion of the Government, it could not immediately bear. The request of the petitioner Society for permission to start a new Arts and Science College was therefore rejected, without prejudice to its right to approach the Government as and when such perspective plan is evolved and applications are invited. 3. In the writ petition, while it is the specific case of the petitioner that the actions of the Government, in repeatedly passing orders rejecting the application of the petitioner for commencement of new Arts and Science Colleges manifested a malafide conduct on the part of the Government, which was adamant in refusing the permission sought for by the petitioner, **W.P(C).41845/18** **6** Ext.P17 order dated 27.07.2018 is also relied upon to suggest that, notwithstanding the stated policy of the Government, that it would not sanction any new college in the State without first developing a perspective plan, the Marian Foundation for Unity and Integral Progress Trust has been granted permission to commence a new aided Arts and Science College in the Parassala Constituency in Thiruvananthapuram District with its Headquarters at Edanji. Ext.P17 order is produced to suggest that a discrimination has been meted out to the petitioner by the State Government in the matter of grant of permission to start new colleges. It is also stated that the said order would indicate that there was never a policy in place which required the preparation of a perspective plan prior to the sanctioning of new Arts and Science Colleges. 4. A counter affidavit had been filed on behalf of the 2[nd] respondent in the writ petition, wherein the sequence of events leading to passing of Ext.P16 order is narrated. In respect of Ext.P17 Government Order, granting permission to Marian Foundation, the same is sought to be justified on the contention that the location of the said college was proposed in a backward area named Edanji, which is 5½ Km away from the National Highway at Malayilkada and that there is no development in Edanji, which is an area thickly populated by Nadar, Dalith and backward-class people. The lack of facilities for higher education for poor students of that area is stated to be the justification for the grant of permission to Marian Foundation to start a new Arts and Science College in the said area. The case of the petitioner is **W.P(C).41845/18** **7** distinguished from that of Marian Foundation by referring to the Cabinet decision, dated 02.03.2016, contained in the Government file that was produced before me for perusal, to show that this was a decision taken by the Cabinet of Ministers as early as in 2016, and the decision was not implemented immediately as it was subjected to a review when the new Government came into power. The decision to maintain the earlier decision to sanction the college to the Marian Foundation is stated to have been taken at the Cabinet meeting on 25.07.2018 and given effect to through Ext.P17 order dated 27.07.2018. The counter affidavit maintains that the Government, as a policy, has not sanctioned any aided college in the State after 30.04.2016, and the decision to sanction a College to Marian Foundation was taken earlier on 02.03.2016, though confirmed only subsequently. It is also stated that the infrastructural facilities offered by the Marian Foundation are superior to the infrastructural facilities offered by the petitioner Society and hence the Government cannot be faulted for having granted permission to Marian Foundation, to the exclusion of the petitioner Society. 5. Through a reply affidavit filed on behalf of the petitioner, the averments in the counter affidavit, that suggest that the infrastructural facilities offered by the Marian Foundation are superior to that of the petitioner Society are denied with specific reference to the details such as the copy of the need analysis report prepared by the Deputy Director of Collegiate Education with respect to the Marian Foundation (Ext.P19). A **W.P(C).41845/18** **8** comparison is made between the said report in favour of Marian Foundation and a similar report in favour of the petitioner, to suggest that the infrastructural facilities offered by the petitioner are far superior to that offered by the Marian Foundation. The petitioner also maintains that there was no policy decision taken by the State Government to formulate a perspective plan before considering an application for permission to start new Arts and Science Colleges and it is suggested that the reference to a perspective plan is merely an afterthought by the State Government to escape from the allegation regarding malafides. 6. I have heard the learned senior counsel Sri.S.Gopakumaran Nair assisted by Sri.Syamkumar on behalf of the petitioner, and the learned State Attorney Sri.K.V.Sohan for the respondent State. 7. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that although the petitioner has been before this Court on three occasions in the past,challenging the orders passed by the State Government rejecting its application for starting an aided Arts and Science College, the reasons stated by the Government on each of those occasions were different. This Court, by its judgments (Ext.P4, Ext.P6 and Ext.P13) in the different writ petitions, directed a fresh consideration of the matter by the State Government, after getting an educational need analysis as also a study of financial implications done before considering the application for permission to start aided Arts and **W.P(C).41845/18** **9** Science Colleges. In Ext.P16 order impugned in this writ petition, while there is a reference to the need analysis report obtained by the petitioner from the Deputy Director of Collegiate Education, the stand taken by the State Government is essentially that, as a matter of policy it has chosen not to sanction fresh Arts and Science Colleges in the aided sector without first conducting a perspective study and preparing a perspective plan for the purposes of sanctioning new colleges in the State. The Government also cites the possible financial implications that would arise consequent to the sanctioning of new colleges in the aided sector, and states that they are not in a position to bear any additional financial burden at present. The reasons stated by the Government in Ext.P16 order carry weight and merit consideration more so when I find that, in the writ petition, there is no challenge to Ext.P17 order that was passed in favour of the Marian Foundation by the State Government. The differential treatment accorded to the Marian Foundation, in the matter of grant of permission to start colleges, is justified by the State Government on the contention that Marian Foundation's was a case which engaged the attention of the State as early as on 02.03.2016, when a Cabinet decision had been taken to sanction a college to the said Marian Foundation. Thereafter, pursuant to a review of all the decisions taken by the earlier Government, a fresh decision was taken to sanction the college to the Marian Foundation on 25.07.2018, which translated into Ext.P17 Government Order, dated 27.07.2018. It is apparent from a perusal of that order that the petitioner Society and the Marian Foundation do not stand at par for consideration of their respective **W.P(C).41845/18** **10** applications for the grant of permission to start Arts and Science College in the aided sector. That apart, I also find that in the absence of any challenge to the order sanctioning the aided college in favour of Marian Foundation, the petitioner Society cannot effectively counter the stand regarding financial implication and the State's inability to bear additional financial expenditure for the starting of new Arts and Science Colleges in the aided sector. While the incurring of financial expenditure for the college started by Marian Foundation may perhaps be justified by the State Government, in the absence of a challenge to Ext.P17 order by the petitioner Society, it cannot be heard to contend that it had a better claim than Marian Foundation to start the aided college that was sanctioned by the Government. Further, it cannot insist on the State Government incurring additional expenditure for yet another college to be started in the aided sector. The position would have been otherwise, if the petitioner had challenged the grant of sanction in favour of Marian Foundation, since in that event the petitioner would be essentially contending that given the limited financial resource available with the State it had a better claim than Marian Foundation to the Arts and Science College that was sanctioned in the aided sector. However, as already noted, there is no challenge in that regard by the petitioner Society. I therefore find that, in view of the policy decision taken by the State Government in Ext.P16 order, this Court cannot direct the State to incur additional expenditure and sanction yet another college, by ignoring its policy decision to prepare a perspective plan before sanctioning any new aided colleges in the State. For the same reason, I also find myself unable to **W.P(C).41845/18** **11** accept the contention of learned counsel for the petitioner, based on the judgment in **Anjuman-E-Islam v. State of Karnataka and another [(2001) 9 SCC 465]** that, in view of the fact that the petitioner had been agitating the matter all along through proceedings before this Court, there should now be a direction to the Government to sanction a new college in its favour. For reasons already stated, the issuance of any such direction would tantamount to this Court issuing directions to the State Government on matters of policy, which this Court is not suited to do in exercise of its powers under Article 226 of the Constitution of India. Resultantly, I am of the view that the prayer sought for in the writ petition cannot be granted. The writ petition therefore fails and is accordingly dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** okb //True copy// P.S. to Judge **W.P(C).41845/18** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER SOCIETY. EXHIBIT P2 A TRUE COPY OF MEMORANDUM OF ASSOCIATION OF THE PETITIONER EXHIBIT P3 THE TRUE COPY OF THE REQUEST DATED 8.2.2016 SUBMITTED TO THE 2ND RESPONDENT BY THE PETITIONER EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 19.2.2016 IN WRIT PETITION NO 6345/2016 BEFORE THE HON'BLE HIGH COURT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 19.5.2016 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 10.8.2016 IN WRIT PETITION NO 18946/2016 EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER NO GO(RT) NO 3081/2016/H.EDN.DATED 11.11.2016 EXHIBIT P8 A TRUE COPY OF COVERING LETTER DATED 31.8.2016 EXHIBIT P9 TRUE COPY OF THE NEED ANALYSIS REPORT ALONG WITH THE COVERING LETTER DATED 4.11.2016 OF THE DEPUTY DIRECTOR. EXHIBIT P10 TRUE COPY OF THE LETTER DATED 26.11.2016 RECEIVED BY THE PETITIONER IN REPLY TO HIS RTI APPLICATION EXHIBIT P11 TRUE COPY OF THE REPLY DATED 29.11.2016 EXHIBIT P12 TRUE COPY OF THE REPLY DATED 13.12.2016 EXHIBIT P13 TRUE COPY OF THE ABOVE JUDGMENT IN WP NO 41372/2016 BEFORE THIS HON'BLE COURT EXHIBIT P14 THE TRUE COPY OF THE NEED ANALYSIS REPORT DATED 8.2.2018 PREPARED FROM THE OFFICE OF THE DIRECTORATE OF COLLEGE EDUCATION.** **W.P(C).41845/18** **13** **EXHIBIT P15** **A TRUE COPY OF THE REMINDER DATED 9.2.2018 OF THE PETITIONER ADDRESSED TO THE RESPONDENT** **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 6.4.2018 EXHIBIT P17** **TRUE COPY OF THE SAID ORDER NO GO(MS) NO 181/2018 H.EDN DEPAT TVM,DATED 2.7.2018** **EXHIBIT P18 A TRUE COPY OF THE REFERENCE ORDER DATED 19.9.2018** **EXHIBIT P19 :TRUE COPY OF NEED ANALYSIS REPORT DATED 19.9.2017 PREPARED BY THE DY.DIRECTOR OF EDUCATION WITH RESPECT TO MARIAN FOUNDATION** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A)** **TRUE COPY OF THE LIST OF COLLEGES AND LIST OF SCHOOLS FUNCTIONING WITHIN NEYYATTINKARA TALUK DOWNLOADED FROM WIKIPEDIA**