Fr. Joseph Antony ThekkemuriYil v. The Vice-Chancellor, Kannur University and Kannur University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939** ## **WP(C).No. 15326 of 2017 (M)** **----------------------------** **PETITIONER :** **--------------------** **FR.JOSEPH ANTONY THEKKEMURIYIL, CHAIRMAN, ST.JUDE'S EDUCATIONAL & CHARITABLE TRUST, VELLARIKUNDU P.O, KASARAGODE DISTRICT, PIN - 671 533.** ## **BY ADV. SRI.GEORGE MECHERIL** **RESPONDENT(S):** **----------------------------** **1. THE VICE-CHANCELLOR, KANNUR UNIVERSITY, CIVIL STATION P.O., KANNUR, PIN -670 002.** ## **2. THE KANNUR UNIVERSITY,** - **CIVIL STATION P.O, KANNUR-670 002, REPRESENTED BY ITS REGISTRAR.** ## **R1 & R2 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2017,ALONG WITH WPC.NO.15419/2017 AND WPC.NO.18588/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 15326 of 2017 (M) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXHIBIT P1 TRUE COPY OF COMMUNICATION AS PER LETTER NO.ACAD/A1/15155/NEW COLLEGE/2015(1) DATED 28.1.2016** - **EXHIBIT P2 TRUE COPY OF THE G.O(RT)NO.1402/2016/H.EDN. DATED 30.5.2016** - **EXHIBIT P3 TRUE COPY OF THE N.O.C AS PER G.OP(MS)NO.1250/2016/H.EDN. DATED 24.6.2016** - **EXHIBIT P4 TRUE COPY OF THE G.O(MS)NO.160/2016/H.EDN. DATED 12.7.2016** - **EXHIBIT P5 TRUE COPY OF THE INSPECTION REPORT FILED ON 29.7.2016 IN WPC NO.24347/2016** - **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 29.7.2016 IN WPC NO.24347/2016** - **EXHIBIT P7 TRUE COPY OF THE AFFILIATION ORDER U.O.NO.A2/7997/SJAS/2016 DATED 6.8.2016** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 1.10.2016 OF THE 2ND RESPONDENT CANCELLING EXT.P10 PROVISIONAL AFFILIATION** - **EXHIBIT P9 TRUE COPY OF ORDER DATED 14.10.2016 IN I.A.15704/2016 IN WPC NO.24347/2016** - **EXHIBIT P10 TRUE COPY OF THE APPLICATION ALONG WITH THE COPY OF THE DD SUBMITTED TO THE UNIVERSITY** - **EXHIBIT P11 TRUE COPY OF THE REQUEST DATED 12.4.2017** - **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 28.4.2017 IN WPC NO.14799/2017** - **EXHIBIT P13 TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHOOMI DAILY DATED 29.4.2017** - **EXHIBIT P14 TRUE COPY OF THE RELEVANT PORTION OF THE LIST OF COLLEGES PUBLISHED BY THE UNIVERSITY** - **EXHIBIT P15 TRUE COPY OF THE CHALAN RECEIPT** - **EXHIBIT P16 TRUE COPY OF THE UNIVERSITY ANNOUNCEMENT PUBLISHED ON THE WEB SITE** - **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION OF THE PRINCIPAL TO THE UNIVERSITY AND REQUESTED TO DECLARE THE RESULTS OF 1ST SEMESTER DEGREE EXAMINATIONS ON 6/5/2017** - **RESPONDENT(S)' EXHIBITS:** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.15326, 15419 & 18588 of 2017 ----------------------------------------------Dated this the 8[th] day of June, 2017** ## **JUDGMENT** The captioned writ petitions are materially connected in respect of the renewal applications submitted by the petitioners in W.P.(C) Nos.15326 & 15419 of 2017, seeking to renew the provisional affiliation granted, and also contending that extension of provisional affiliation is automatic. W.P.(C) No.18588 of 2017 is filed by the students of the petitioner College in W.P.(C) No.15326 of 2017, complaining about nonpublication of 1[st] Semester examination results, and the lethargy of the University in the matter of renewal or continuation of provisional affiliation. Material facts provided in W.P.(C) No.15326 of 2017 are as follows: 2. In compliance with Ext.P6 order passed by this Court in W.P.(C) No.24347 of 2016 dated 29.07.2016, 2[nd] respondent University granted affiliation to St. Jude's Arts and Science College, Vellarikundu, of which the petitioner is the Chairman, as per Ext.P7. The said college has completed First Year Degree course. In the meanwhile, the University **W.P.(C) No.15326/17 & con cases** 2 cancelled Ext.P7 _vide_ Ext.P8 order, which is stayed by this Court as per Ext.P9 order in I.A.No.15704 of 2016 in W.P.(C) No.24347 of 2016. The said writ petition is pending consideration. 3. Matters being so, petitioner filed Ext.P10 application for renewal of Ext.P7 provisional affiliation, and Ext.P11 application for inclusion of the college in the list of colleges for Centralized Allotment Process. However, the University rejected Ext.P10 application for renewal of provisional affiliation without notice, and without providing an opportunity of being heard. According to the petitioner, the said decision, instead of communicating to the petitioner, was published in the newspapers, evident from Ext.P13. Therefore, the refusal to renew Ext.P7 provisional affiliation is as good as cancelling the affiliation of the College, which has resulted in serious civil consequences, especially due to the fact that admission to the Degree courses for the academic year 2017-18 is to start from the 2[nd] week of May, 2017. 4. Petitioner has produced additional documents along with I.A.No.7391 of 2017, in order to establish that Ext.P14 list was published by the University, from which it is evident that **W.P.(C) No.15326/17 & con cases** 3 the College of the petitioner is not included in the list of Colleges whose affiliation were extended, and also Exts.P15 to P17 to show that the students participated in the First Semester Degree Examinations after completing all formalities including payment of examination fee for B.Com. and other courses. However, the results of the students who participated in the examination are not published. 5. In W.P.(C) No.15419 of 2017, the petitioner is representing St. Mary's Arts and Science College, Cherupanathady, Panathady P.O., Kasaragod District, contending that in response to the notification issued by the University, petitioner filed application for starting a new Self Financing/Unaided Arts and Science College, after remitting the required fee. The respondent University conducted inspection, and was satisfied that the petitioner College provided all infrastructural facilities to start the College in accordance with University statute. Therefore, the University accorded sanction to start the College and courses as requested by the College authorities, and forwarded its recommendation to the State Government. The State Government issued administrative sanction and NOC for **W.P.(C) No.15326/17 & con cases** 4 starting the college as per Exts.P3 and P4. Subsequently, after thorough inspection and enquiry, the University granted provisional affiliation for starting the new college as per Ext.P5. Thereupon, the college was started, students were admitted, teachers were appointed and all kinds of fees were remitted. It is also stated that the affiliation fee was also remitted by the college. However, the 1[st] respondent University issued an order cancelling Ext.P5 provisional affiliation, without following the procedure established, as per Ext.P7. According to the petitioner, no opportunity of being heard was provided to the petitioner, and thus the action of the University is in clear violation of Clause 14, Chapter V of the Kannur University First Statute. 6. Being confronted with such a situation, petitioner challenged Ext.P7 by filing W.P.(C) No.32687 of 2016, and as per Ext.P8, stay was granted, which is extended until further orders. Thereupon, all the students appeared for the 1[st] Semester examination. However, the results are now withheld stating pendency of the writ petition. 7. Petitioner has filed an application for renewal of Ext.P5 provisional affiliation along with required fee. However, **W.P.(C) No.15326/17 & con cases** 5 according to the petitioner, the Syndicate committee met on 28.04.2017 decided to reject the same, stating the very same reasons contained in Ext.P7. But the said rejection order is yet to be communicated to the petitioner, and it was published only in the newspapers. 8. Therefore, it is clearly discernible that the subject matter in the two writ petitions specified above is concerning the rejection of the renewal application of the Colleges belonging to the petitioners, informed to the petitioners on the basis of news item published in newspapers. In both the cases, petitioners case is that no order of rejection of renewal of affiliation is issued to the petitioners. 9. In W.P.(C) No.15419 of 2017, a statement is filed for and on behalf of the 1[st] respondent University, denying the allegations raised in the said writ petition, and also I.A.No.8667 of 2017, seeking to accept documents produced along with the said statement. Apart from other contentions, it is stated that the petitioner has preferred W.A.No.999 of 2017 against the interim order passed by this Court on 25.03.2017, to take decision on Ext.P9 within ten days and report the matter before this Court. The said appeal was **W.P.(C) No.15326/17 & con cases** 6 dismissed. So also, it is stated, 1[st] respondent has filed I.A.No.8485 of 2017, seeking to extend the time granted in the order dated 23.05.2017, for a further period up to 09.06.2017, on which date a meeting of the Syndicate is scheduled. 10. According to the 1[st] respondent, the prayer in respect of the deemed affiliation made in I.A.No.8488 of 2017 is not a subject matter in the writ petition, and therefore, petitioner is not entitled to seek such an interim relief, declaring that the College has already acquired deemed affiliation. That apart, it is stated that the orders issued by the Government as well as in the provisional affiliation order, it has been specified that the provisional affiliation is granted to the petitioner subject to the provisions of the Kannur University Act, Statute and other Regulations and therefore, petitioner is bound to keep up the requirements under the Act and Statute for maintaining the provisional affiliation order. Moreover, it is stated that the provisional affiliation order was granted not by the Syndicate. The Statute envisages consideration of the application for affiliation by the Syndicate after considering the report of enquiry. Therefore, the Syndicate has considered the **W.P.(C) No.15326/17 & con cases** 7 report of inspection dated 20.09.2016, and decided to cancel the provisional affiliation granted to the college. A copy of the inspection report is produced as Annexure-R1(a). That apart, the University has issued a circular dated 06.07.2013, which has been circulated to all Self Financing Colleges, intimating the norms for appointment of Principal and teachers in affiliated unaided colleges with effect from 2013-2014. The appointment of Principal and Teachers in the petitioner's Educational Agency was in violation of the Circular dated 06.07.2013. 11. It is also submitted that, based on Ext.R1(a) inspection report, the Syndicate meeting held on 23.09.2016 resolved to cancel the provisional affiliation granted to the petitioner's College, and the same has been communicated to the petitioner as per communication dated 01.10.2016, which is produced by the petitioner as Ext.P7. However, based on the interim order passed by this Court, notice has been issued to the petitioner Agency for appearing before the SubCommittee members for a personal hearing on 26.10.2016, and accordingly, the Principal and Manager of the College appeared on the said date, and after considering the entire **W.P.(C) No.15326/17 & con cases** 8 matters, it has been found that there is violation of University orders, circular and statutory provisions, and therefore, the Syndicate by resolution dated 01.11.2016 has confirmed cancellation of the affiliation to the petitioner's college, evident from Annexure-R1(b) dated 01.11.2016. However, in W.P.(C) No.32687 of 2016, this Court passed an interim order to keep in abeyance the cancellation. Thereupon, the petitioner continued the courses in the last academic year on the strength of the interim order passed by this Court. 12. The thrust of the contention advanced by the University is that, the petitioner college has not satisfied the necessary requirements in order to secure an affiliation to the college. The claims raised by the petitioner with respect to deemed status of affiliation is stoutly denied by the University, contending that there are no statutory provisions enabling the petitioner for securing a deemed affiliation. That apart, it is contended that the application is not the one as enumerated in the statute and no application is seen filed within the time stipulated by the statute, and therefore, it cannot be termed as an application in the eye of law, and therefore, petitioner in the said writ petition is not entitled to secure the benefits of **W.P.(C) No.15326/17 & con cases** 9 the judgment in _**'Director of Jubilee Mission Medical College & Research Institute v. University of Calicut and**_ _**Others'**_ [2008 (4) KHC 885 : 2008 (4) KLT 966]. That apart, it is contended that, even though the said judgment of this Court was upheld by a Division Bench in the appeal filed by the University in W.A.No.249 of 2009 dated 13.03.2009, the same has merged with the judgment of the learned Single Judge and contend that the direction contained in the judgment of the learned Single Judge with respect to the deemed affiliation is upheld by the Division Bench on the principle that, when the statutory authority fails to exercise the power vested with it, this Court under Article 226 can issue the same order which ought to have been passed by the statutory authority. 13. It is also stated that the application for affiliation of the petitioner's college was considered by the Syndicate in its meeting held on 28.04.2017, and in view of the pendency of the writ petition in connection with the said college, a resolution was adopted to seek legal opinion from the Standing Counsel, evident from Annexure-R1(c). Therefore, the University has considered the application of the petitioner and in view of the pendency of the matter before this Court, the **W.P.(C) No.15326/17 & con cases** 10 decision was deferred. Therefore, according to the 1[st] respondent, the University was keeping abeyance its decision in the matter due to the pendency of the writ petition before this Court, and there is no negligence or laches on the part of the University in taking necessary steps. That apart, it is stated that, for proper consideration of the application for affiliation, University has constituted an Inspection Committee, and the Inspection Committee has submitted a report on 02.06.2017, and based on the said inspection report, the Syndicate would consider the application in its meeting scheduled on 09.06.2017. Various other Interlocutory Applications are filed by the petitioner seeking to declare that the petitioner college has secured deemed affiliation by virtue of the principles of law laid down by this Court in _**'Director of**_ ## _**Jubilee Mission Medical College & Research Institute'**_ case ( _supra_ ) etc. etc. However, after understanding the facts and circumstances and since the subject issue in respect of both the colleges are scheduled to be considered by the Syndicate on 09.06.2017, I am of the considered opinion that the writ petitions can be disposed of by issuing appropriate directions to the Kannur University. **W.P.(C) No.15326/17 & con cases** 11 14. As discussed earlier, W.P.(C) No.18588 of 2017 is largely dependent on the other two writ petitions, and will be guided by the judgment passed by this Court accordingly. 15. Heard learned counsel for the petitioners, learned Senior Government Pleader and the learned Standing Counsel appearing for the University. Perused all the documents on record and the pleadings put forth by the respective parties. 16. So far as the College in W.P.(C) No.15326 of 2017 is concerned, a provisional affiliation was granted. However, the same was cancelled, which is under challenge before this Court. In accordance with the provisional affiliation granted, applications were made to the college, all formalities were completed and students participated in the 1[st] Semester examination also. The same is the case with W.P.(C) No.15419 of 2017. Provisional affiliation was granted and the college started functioning. Therein also, the provisional affiliation met with the same fate, and thereupon, the same is also under challenge in another pending writ petition. However, the fact remains, due to the pendency of the aforesaid writ petitions, University has decided to re-consider the issue in its Syndicate meeting scheduled on 09.06.2017. **W.P.(C) No.15326/17 & con cases** 12 One thing is clear, it was on the basis of the provisional affiliation granted by the University, the Colleges admitted students and they have pursued their studies. Therefore, the cancellation made without even providing an opportunity for contesting the proceedings properly cannot be appreciated under law. There is no case for the University that the students admitted to the said colleges are unqualified in any manner. Therefore, the stand adopted by the University by cancelling the provisional affiliation all on a sudden, will cause innumerable difficulties and losses to the students, their parents and the Colleges. If the University is to grant a provisional affiliation on the basis of an application submitted by the college, it is for the University to identify before the grant of provisional affiliation with respect to the infrastructure provided by the college concerned, to secure such an affiliation. That apart, if any infrastructure is to be provided after the provisional affiliation was secured by the college, the University is at liberty to direct the college to rectify the defects if any occurred by providing sufficient time. It is true that the students should have proper infrastructural facilities in the college, including Library, Laboratory, qualified teachers, **W.P.(C) No.15326/17 & con cases** 13 staff etc. etc. The colleges are also bound to ensure that the students are getting the required attention and educational facilities in accordance with the provisions of the University Act and the Statute. 17. Taking note of the factual circumstances involved in the writ petitions, and also bearing in mind the principles of law laid down by this Court in _**'Director of Jubilee Mission Medical College & Research Institute'**_ ( _supra_ ), and its affirmation by the Division Bench of this Court in W.A.No.249 of 2009, I am of the considered opinion that, if the University is taking a decision otherwise, the students admitted to the colleges will be put to innumerable difficulties. 18. Therefore, there will be a direction to the University to consider the application for renewal of the affiliation submitted by the colleges, taking into account such difficulties, and a positive decision shall be taken in accordance with the observations and directives contained above, in the Syndicate meeting scheduled on 09.06.2017. As I have pointed out earlier, if any shortcomings are there on the part of the colleges, the University will be at liberty to point out the same and issue appropriate directions to rectify, and in that view of **W.P.(C) No.15326/17 & con cases** 14 the matter, the University will also be at liberty to carry out successive inspections to ensure necessary infrastructural and other facilities in the colleges. 19. Since I have found that the students were admitted in accordance with the provisional affiliation granted by the University, they are entitled to get the results published. Therefore, the writ petitions are disposed of, directing the 1[st] respondent Kannur University to take a positive decision in the Syndicate meeting scheduled to be held on 09.06.2017, ensuring continuation of the affiliation of the colleges involved in the writ petition. There will be a further direction to the University to publish the results of the 1[st] Semester students of the College in W.P.(C) No.15326 of 2017. I also make it clear that the direction issued by this Court on 23.05.2017 to take a decision on Ext.P9 application in W.P.(C) No.15419 of 2017, and to report the matter before this Court within ten days, is extended by two weeks from the date of expiry so specified, in the application submitted by the University. **W.P.(C) No.15326/17 & con cases** 15 The writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/09.06.2017