Christ College (Autonomous), Irinjalakuda v. University of Calicut and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.30545 of 2017-P** ## **PETITIONER/S:** - **1 CHRIST COLLEGE REPRESENTED BY ITS MANAGER, IRINJALAKUDA-680125.** - **2 PRINCIPAL CHRIST COLLEGE, IRINJALAKUDA-680125.** **BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL** ## **RESPONDENT/S:** - **1 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., THENHIPALAM,MALAPPURAM-673635.** - **2 VICE CHANCELLOR UNIVERSITY OF CALICUT,CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM-673635.** **3 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** ## **OTHER PRESENT:** **SRI.P.C.SASIDHARAN,SC, SRGP.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.30545/2017 ## **JUDGMENT** The Christ College, which is an aided college having autonomous status along with its Principal has filed this Writ Petition aggrieved by Ext.P9 order passed by the University of Calicut rejecting its proposal for commencement of B.Sc.Geology (Addl. batch), B.Sc.Food Technology, B.Sc Physics (Addl batch), BCom (Professional) MSc Computer Science and MCJ for the academic year 2017-18 onwards. 2. The 1[st] petitioner college was conferred autonomous status as per Ext.P1 order in July 2015. It is stated that the College had forwarded its proposal for introduction of new programmes in B.Sc Geology (Addl.Batch), B.Sc Food Technology, B.Sc Physics (Addl.Batch), Bcom (Professional), M.Sc Computer Science and Master of Communication and Journalism to the University for approval immediately after it became autonomous. Syndicate of the University had recommended the same and the Registrar of the University had as per ## W.P.(C) No.30545/2017 **==> picture [12 x 8] intentionally omitted <==** Ext.P2 letter dated 30.05.2016, forwarded the minutes of the meeting of the syndicate along with a list of Colleges including petitioner college with the courses recommended, to the Government. The courses recommended for the 1[st] petitioner College were B.Sc Geology (Addl.Batch), B.Sc Food Technology, B.Sc Physics (Addl.Batch), Bcom (Professional), M.Sc Computer Science and Master of Communication and Journalism. Thereafter the governing council of the petitioner college in its meeting convened on 30.06.2016, as per Ext.P3 minutes proposed to start the courses in 201617. It is stated that as no orders were received, the academic council of the petitioner college, as per Ext.P4 minutes of its meeting held on 14.02.2017 resolved to start the courses in 2017-18 in accordance with Ext.P5 guidelines for autonomous colleges during XII plan period. It is stated that the Principal-the 2[nd] petitioner, as per Ext.P6 letter dated 06.04.2017, forwarded Ext.P4 proposal of the academic council to the Vice Chancellor informing that as per Ext.P5 guidelines of the UGC an autonomous college is entitled W.P.(C) No.30545/2017 **==> picture [12 x 8] intentionally omitted <==** to start new courses. Pointing out the proposal of the academic council in Ext.P4 to start the new courses, the 2[nd] petitioner informed the 2[nd] respondent that all the six courses viz. B.Sc Physics, B.Sc Geology, B.Sc Food Technology and Quality assurance, B.Com Professional, M.Sc Computer Science and Master of Communication and Journalism, were having approved syllabus of the University. It was also stated that there will be no financial commitment since they proposed to start the courses in self financing stream. The University was therefore requested to issue orders of affiliation. Producing Ext.P7 acknowledgment cards, petitioners stated that even though the University received the proposal on 12.04.2017, it did not take any action within the time limit of one month of the receipt of the proposal **.** The petitioners filed WP(C) No.19539/2017 and it was disposed of by Ext.P8 judgment dated 23.06.2017 directing the University to finalise the proceedings pertaining to Ext.P2 recommendation at the earliest possible time at any rate within six weeks from the date of receipt of a copy of the judgment. ## W.P.(C) No.30545/2017 :5: Petitioners submit that though the judgment was forwarded on 01.07.2017, the University issued Ext.P9 order on 30.08.2017 rejecting the request of the petitioners, in the light of the legal opinion received. It was found that the College had already admitted students for the new courses in the academic year 2017-18 even before getting approval from the University and hence petitioners acted in violation of statutory provisions. Referring to section 68Q(1) of Chapter VIIIB of the Calicut University Act, it was stated that the University has all other powers over the autonomous colleges as are applicable to any affiliated college under the University. Pointing out that the College had admitted the students in violation of the statutory provisions the syndicate had referred the matter to a sub committee, which found that the petitioner college did not have any authority to start new courses without obtaining prior approval from the University. Even though the Syndicate had in its meeting held on 19.08.2017 resolved to authorise the Vice-chancellor to appoint an academic expert committee ## W.P.(C) No.30545/2017 :6: for inspecting the College for the six programmes, it was stated that in the light of the legal opinion the request for additional affiliation for various courses for the year 2016-17 and 2017-18 was rejected. As per the legal opinion, a private college receiving aid from the Govt. and UGC cannot be granted affiliation for additional course in the self financing stream. 3. The learned counsel for the petitioners submits that the students admitted in the courses commenced in the light of the deeming provisions under the 2[nd] proviso to sub section 3 of section 68Q continue in the College on the basis of interim order passed by this Court on 25.09.2017 and some of them have already completed the course and are awaiting award of degree certificates. 4. According to the petitioners separate affiliation is not required for commencement of new courses and only approval of the proposal of the academic council of the college alone was required from the Board of Studies of the University. It is also pointed out that since the University did not take any W.P.(C) No.30545/2017 **==> picture [12 x 8] intentionally omitted <==** action on Ext.P6 proposal, which reached the university on 12.04.2017 the approval would be deemed to have been granted on expiry of one month of its receipt, by operation of 2[nd] proviso to subsection 3 of section 68 Q of Chapter VIIIB of Calicut University Act. It is pointed out that even before Ext.P9 order, there was no consideration by the Board of Studies of the University on the proposal placed by the governing council as provided in section 68Q(3). 5. The University has not filed any counter affidavit in this writ petition. The Post Graduate students have completed the course based on the interim order but because of Ext.P9 order they did not get the Degree Certificates. 6. Having considered the contentions advanced, it is necessary to examine the provisions contained in Section 68Q(1) to (3) of Chapter VIIIB of the Calicut University Act, which read as follows: _68Q(1). Subject to the provisions of this Chapter and the provisions of the Statutes, Ordinances, Regulations, Bye - laws and Rules made thereunder, the University shall have all other powers over the Autonomous Colleges as are applicable to any affiliated College of the University under this Act, the Statutes, Ordinances and the Regulations made thereunder._ W.P.(C) No.30545/2017 :8: _(2) Where the Governing Council of an autonomous college has approved and recommeded any academic programmes to the University the Vice Chancellor shall cause the proposal to be placed before the relevant Board of Studies of the University:_ _Provided where there is no Board of Studies with respect to the academic programmes proposed the University shall constitute a Board of Studies or an Expert Committee for the purpose._ _Provided further that the Expert Committee so appointed shall have adequate number of members to facilitate a fair and objective assessment of the Academic programme submitted by the University._ _(3)The Board of Studies or the Expert Committee as the case may be, shall within thirty days from the date of receipt of the proposal, consider it for the Academic Programme referred to in subsection 2 and approve, reject or return the same, with remarks to the Vice Chancellor._ _Provided that such rejection shall be on the ground that the proposal received from the Governing Council of an Autonomous College does not conform to the duration, number of credits, evaluation and grading system for that academic programme already prescribed by the University or where the Board of Studies or the expert committee feels, for reasons to be recorded that the proposal of of the Governing Council of an Autonomous College will have the effect of lowering academic standards;_ _Provided further that where the Autonomous College which submitted the proposal has not been informed of the decision within thirty working days from the date of submission of the proposal to the University, the proposal shall be deemed to have been approved by the University._ ## 7. Ext.P5 Guidelines for Autonomous Colleges during the 12[th] planning period provide for the role of the parent Universities over the autonomous colleges, under clause 2. The parent University has to promote academic freedom of the College by encouraging introduction of innovative academic programmes; to W.P.(C) No.30545/2017 :9: facilitate new courses of study, to depute various nominees of the University in various committees of the College, etc. Clause 10 provides for starting of new courses. It was provided under clause 14 that “autonomous colleges due to their permanent affiliation with the University need not apply for affiliation for new subjects at the time of introduction. Any new subject to be started by an autonomous college shall be covered under autonomous scheme”. It provides that the relationship of the autonomous college with parent University would be in the manner it is conducive for the development of the college with the ultimate aim of converting it into a college of Eminence; that Autonomous Colleges need not pay affiliation fees to the parent University every year. One time fees can be paid at the time of conferment of autonomous status which can be decided by the Executive Council of the parent University. The University as well as the autonomous colleges are bound by these guidelines and regulations issued by the UGC. Ext.P5 guidelines were issued on the basis of UGC document on the XII plan W.P.(C) No.30545/2017 **==> picture [18 x 8] intentionally omitted <==** profile of higher education. It was found that the only safe and better way to improve the quality of education is to delink most of the colleges from the affiliating structure. 8. In the judgment in _**Principal, Rajagiri College of Social Sciences V M.G. University and others:**_ _**2016(4)KHC 489**_ , this court interpreted the provisions contained in Section 118 of the MG University Act which is in parimateria with Section 68Q of the Act, with reference to the provisions in Ext.P5 guidelines. The observations in para.9 of the judgment is relevant which read as follows: _9. The guidelines so read would indicate that the UGC essentially is aiming at de- centralisation of the structured curriculum education, enabling higher standards in the autonomous institutions, since in the present circumstances, often, the University is unable to give individual attention to the affiliated Colleges. This de -centralisation would also ensure the course completion in the duration prescribed for the course, publication of results within time and the grant of degrees and diplomas with expedition; which again is a problem the various Universities in the Country, currently face; by reason only of the enormity of the number of students and the varied courses conducted._ 9. This court held that when the recommendations of the Council of an autonomous college are submitted to the University, the University has to place the ## W.P.(C) No.30545/2017 :11: same before the Board of Studies of the University. Under the first proviso the University is to constitute a Board of Studies or an expert committee in case a particular academic programme proposed and recommended by a college council is not available in the University. Under the second proviso, the expert committee has to facilitate a fair and objective assessment of the academic programme. The Board of studies or the expert committee shall within 30 days from the date of receipt of the proposal consider the same and approve, reject or return the same with remarks to the Vice Chancellor. The grounds on which rejection can be made are provided in the first proviso to sub section 3. At the same time, second proviso provides for a deemed provision which enables the autonomous colleges to consider the academic programme having been approved by the University in case the decision of the Board of Studies has not been communicated within 30 working days. It was held that even if the University does not communicate the rejection order within 30 working days, there is a W.P.(C) No.30545/2017 :12: definite mandate cast on the University to place the proposal before the Board of Studies and to ensure its consideration within 30 working days from the date of receipt of the proposal and if such a decision of the Board of Studies is brought on record, it should be within the specified 30 working days. In this case the University has not undertaken such an exercise. Initially the request for affiliation was recommended. Going by the provisions in Section 68Q (2) and (3), it was not necessary for the College to request for affiliation itself. However they had in Ext.P6 letter pointed out the deeming provision while forwarding its resolution and requesting for approval to commence the programme in 2017-18. Under the 2[nd] proviso to Section 68Q(3), it should be deemed that the College got the approval to start the course, as no steps were taken by the University to place it before the Board of Studies. In the judgment in _**Rajagiri's**_ case it was also held that a further affiliation is not required for commencement of new courses as autonomous colleges and affiliated colleges are treated differently by the Act ## W.P.(C) No.30545/2017 **==> picture [18 x 8] intentionally omitted <==** itself. It is also pertinent to note that University could have denied approval only on the grounds specified in the first proviso. In this case the University had in Ext.P2 letter recommended all these courses. 10. One of the reasons stated in Ext.P9 is that as per the legal opinion, self-financing batch cannot be allowed in aided colleges. Petitioners have stated that they are prepared to bring it in the aided sector also. 11. The contention of the petitioners is that even for affiliation, in case it was required, as it wanted to conduct the course in the self financing sector, there cannot be any prohibition for aided colleges to run unaided courses in the light of the judgment of this Court in _**Kerala Arts and Science Unaided College**_ _**Management Association vs. State of Kerala : 2018 (1)**_ _**KHC 637**_ where a Division Bench of this court held as follows in para 10: _10. Issue No.(i): The importance of education especially professional education is increasing every day in the modern times. Ever increasing population in the State and the country demands more and more avenues of vocation and employment, which has led to_ W.P.(C) No.30545/2017 :14: _introduction of various professional courses in the filed of education. The importance of education has been emphasized time and again by Saints, Scholars and Courts of Law. In Brown vs. Board of Education MANU/USSC/0037/1954: 347 US 483 (1984) the following was observed:_ _“Today, education is perhaps the most important function of State and Local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation or good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment”._ 12. After referring to various provisions contained in the Acts, Statute, Ordinance etc. of various Universities in Kerala including that of Calicut University, it was held that there is no restriction with regard to nature of new courses sought to be applied and which indicates that affiliation cannot be given to courses without aid in aided colleges. It was held that the fact that the State Government is not permitting aided course in the aided colleges on account of financial commitment that cannot be read as a fetter on the right of aided institutions to have more and more courses including professional courses and the denial of permission to aided colleges W.P.(C) No.30545/2017 **==> picture [18 x 8] intentionally omitted <==** to run new unaided courses would be a fetter in increase and proliferation of the education, which shall run counter to the object of the University Act and Statutes. This court found that no fault can be found with the affiliation of self financing courses in aided or unaided institutions and that there is no statutory restriction on the University or the Government to sanction new courses/subjects in unaided sector. Therefore it was open for the university to get an agreement executed by the College regarding the use of infrastructure in the college for the unaided sector. However the petitioners have stated that they are willing to conduct the programmes in aided sector also. In that event an approval by the Board of Studies alone was required from the University. Therefore, a further affiliation would not be required, going by the guidelines Ext.P5 and as held by this court in the judgment in _**Rajagiri's**_ case. 13. Going by the 2nd proviso to Section 68Q(3), the College has got a deemed approval. Therefore the commencement of the course by the petitioner cannot be W.P.(C) No.30545/2017 **==> picture [18 x 8] intentionally omitted <==** said to be illegal. The grounds for rejection in Ext.P9 order is not on any of the grounds specified in the first proviso to subsection 2 of Section 68Q of the Act. Therefore Ext.P9 order is set aside. As the course is continued on the basis of interim orders of this court, there shall be a direction to the University to take necessary steps to issue the Degree certificates to the students who have completed the course and passed the examination conducted by the course. The Writ Petition is disposed of accordingly. **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) No.30545/2017 :17: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT CONFERRING AUTONOMOUS STATUS TO THE PETITIONER'S COLLEGE DATED JULY 2015. EXHIBIT P2 PHOTOCOPY OF THE COMMUNICATION OF THE 1ST RESPONDENT TO THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT OF THE 3RD RESPONDENT DATED 30.05.2016. EXHIBIT P3 PHOTOCOPY OF THE MINUTES OF THE GOVERNING COUNCIL MEETING DATED 30.06.2016. EXHIBIT P4 PHOTOCOPY OF THE MINUTES OF THIRD MEETING OF THE ACADEMIC COUNCIL DATED 14.02.2017. EXHIBIT P5 PHOTOCOPY OF THE 'GUIDELINES FOR AUTONOMOUS COLLEGES DURING THE XII PLAN PERIOD'. EXHIBIT P6 PHOTOCOPY OF THE COMMUNICATION DATED 06.04.2017 OF THE 2ND PETITIONER. EXHIBIT P7 PHOTOCOPIES OF THE A/D CARDS. EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.19539/2017 DATED 23.06.2017. EXHIBIT P9 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 30.08.2017. EXHIBIT P10 PHOTOCOPY OF THE ABOVE JUDGMENT REPORTED IN 2016 (4) KHC 489. EXHIBIT P11 PHOTOCOPY OF THE JUDGMENT OF THE** W.P.(C) No.30545/2017 :18: **DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.1708/2016 DATED 08.09.2016. EXHIBIT P12 PHOTOCOPY OF THE UGC GUIDELINES FOR AUTONOMOUS COLLEGES 2017.**