Kerala Arts & Science Unaided College Management Association v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935** **WP(C).No. 7361 of 2013 (U) ---------------------------** ## **PETITIONER(S): --------------------------** **KERALA ARTS & SCIENCE UNAIDED COLLEGE MANAGEMENT ASSOCIATION, REG.NO. K 84/2008, REPRESENTED BY ITS SECRETARY, AL-AZHAR COLLEGE CAMPUS, PERUMPILICHIRA P.O., THODUPUZHA-565 805.** **BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE. ADVS.SRI.V.S.AFSAL KHAN, DR.PAULY MATHEW MURICKEN, SRI.V.A.SHAJI.** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY ITS PRINCIPAL SECRETARY, THE HIGHER EDUCATIONAL DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **2. UNIVERSITY GRAND COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002.** **3. MAHATMA GANDHI (M.G.) UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS, KOTTAYAM-686 560.** **4. CALICUT UNIVERSITY, REPRESENTED BY ITS REGISTRAR, THENIPALAM, CALICUT-673 635.** ## **5. KERALA UNIVERSITY,** - **REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM-695 034.** ## **WP(C).No. 7361 of 2013 (U)** **6. KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KANNUR-670 567.** **7. ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION, STATE COMMITTEE OFFICE, MATHRUBHOOMY ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695 035.** ## *** ADDL. R8 IMPLEADED** **8. ANEESH. K.K. S/O.KHALID, AGED 21 YEARS, KUTTIMACKAL HOUSE, ERUMATHALA. P.O., CHOONDI, ALUVA, PIN -683 105.** - **ADDL. R8 IS IMPLEADED AS PER ORDER DATED 31.05.2013 IN IA. NO. 5918/2013.** ## **** ADDL. R9 TO R21 IMPLEADED** **9. MANAGER, NIRMALA COLLEGE, MUVATTUPUZHA -686 661.** **10. MANAGER, DEVAMATHA COLLEGE, KURUVILANGAD -686 633.** **11. MANAGER, PAVANATMA COLLEGE, MURIKKACHERRY -685 604.** **12. MANAGER, ST.STEPHEN'S COLLEGE, UZHAVOOR- 686 634.** **13. MANAGER, ST.GEORGE COLLEGE, ARUVITHURA -686 122.** **14. MANAGER, ST.DOMINIC'S COLLEGE, KANJIRAPPALLY -686 512.** **15. MANAGER, ALPHONSA COLLEGE, PALA -686 574.** **16. MANAGER, ASSUMPTION COLLEGE, CHANGANACHERRY -686 101.** ## **WP(C).No. 7361 of 2013 (U)** ## **17. MANAGER, BISHOP CHULAPARAMBIL MEMORIAL COLLEGE, KOTTAYAM-686 001.** ## **18. SECRETARY,** **CORPORATE MANAGEMENT OF M.O.C.COLLEGES, DEVALOKAM, KOTTAYAM -686 001.** ## **19. MANAGER OF COLLEGES, BISHOP'S HOUSE, KOTHAMANGALAM - 686 691.** **20. MANAGER, CMS COLLEGE, KOTTAYAM -686 001.** ## **21. THE PRINCIPAL** - **ST.TERESA'S COLLEGE, ERNAKULAM, COCHIN -682 011.** **** ADDL. R9 TO R20 AND ADDL. R21 ARE IMPLEADED AS PER ORDER DATED 11.07.2013 IN IA. NO.9212/2013 AND I.A. NO.9266/2013 RESPECTIVELY.** **# ADDL. R22 TO R24 IMPLEADED** ## **22. MES COLLEGE MARAMPALLY, MARAMPALLY. P.O., ALUVA, ERNAKULAM, REPRESENTED BY ITS PRINCIPAL.** **23. THE PRINCIPAL, S.H.COLLEGE, THEVARA, COCHIN -682 013.** ## **24. THE PRINCIPAL,** - **ST.BERCHMANS' COLLEGE, CHANGANACHERRY -686 101.** **# ADDL. R22 TO R24 ARE IMPLEADED AS PER ORDERS DATED 15.07.2013 IN IA. NOS. 9265/2013, 9260/2013 AND 9539/2013 RESPECTIVELY.** ## **## ADDL. R25 TO 28 IMPLEADED** **25. THE MANAGER, AQUINAS COLLEGE, EDACOCHIN, COCHIN -682 010.** ## **26. MANAGER,** **MORNING STAR HOME SCIENCE COLLEGE, ANGAMALY SOUTH. P.O., PIN- 683 573.** ## **WP(C).No. 7361 of 2013 (U)** ## **27. MANAGER, ST.PAUL'S COLLEGE, KALAMASSERY -683 503.** **28. ST.MARY'S COLLEGE OF COMMERCE AND MANAGEMENT STUDIES, THURUTHIPILLY, PERUMBAVOOR, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGER T.T.JOY, AGED 60 YEARS, S/O.THARU, THOMBRA HOUSE, PULLUVAZHY. P.O., PERUMBAVOOR.** **## ADDL. R25 TO 28 ARE IMPLEADED VIDE ORDER DATED 18.07.2013 IN IA. NOS. 9790/2013, 9791/2013, 9777/2013 AND 9793/2013 RESPECTIVELY.** **R1 BY GOVT. PLEADER SMT.ANITHA RAVINDRAN. R2 BY ADV. SRI.S.KRISHNAMOORTHY, CGC. R3 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G. UNIVERSITY, SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY. R4 BY ADV. SRI.SANTHOSH MATHEW, SC, CALICUTY UTY. R5 BY ADV. SRI.GEORGE POONTHOTTAM, SC, KERALA UTY. R6 BY ADV. SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY. R7 BY ADVS. SRI.P.SANJAY, SMT.A.PARVATHI MENON. ADDL. R8 BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. ADDL. R9, R 20 & R27 BY ADV. SRI.BABY ISSAC ILLICKAL. ADDL. R21, R23& R24 BY SRI.KURIAN GEORGE KANNANTHANAM, SR. ADVOCATE ADV. SRI.TONY GEORGE KANNANTHANAM. ADDL. R22 BY ADVS. SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.K.A.NOUSHAD,** **SRI.P.U.VINOD KUMAR, SRI.KANDAMPULLY RAHUL, SRI.MITHUN BABY JOHN, SRI.J.RAMKUMAR,** **SRI.GEORGE JACOB (JOSE). ADDL. R25 & R26 BY ADV. SRI.N.JAMES KOSHY. ADDL. R28 BY ADV. SRI.ALEXANDER JOSEPH. BY ADV. SRI.THOMAS GEORGE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-08-2013, ALONG WITH W.P.(C) NO. 18124 OF 2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 7361 of 2013 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1- A TRUE COPY OF THE JUDGMENT DATED 01-02-2011 IN W.A.NO. 2096 OF 2009 PASSED BY THE DIVISION OF BENCH OF THIS HONOURABLE COURT.** - **EXHIBIT P2- A TRUE COPY OF THE PROCEEDINGS IN FILE NO. GAI/DR/4926/2002 DATED 08-06-2011 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P3- A TRUE COPY OF THE PROCEEDINGS IN FILED NO. GA1/D2/4926/2 DATED 16-06-2011 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P4- A TRUE COPY OF THE ORDER U.O.NO. 5885/A1/2012/ACAD. DATED 17-10-2012 ISSUED BY THE 3RD RESPONDENT UNIVERSITY.** - **EXHIBIT P5- A TRUE COPY OF THE REPRESENTATION DATED 20-02-2013 FILED BY THE PETITIONER.** - **EXHIBIT P6A TRUE COPY OF THE ORDER AC A1/1/2409/2013 DATED 31/05/2013 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P7A TRUE COPY OF THE PAPER NEWS PUBLISHED IN MALAYALA MANORAMA PAPER DATED 14/05/2013.** - **EXHIBIT P8NIL.** - **EXHIBIT P9A TRUE COPY OF THE APPLICATION AND CONNECTED PAPERS OBTAINED UNDER RIGHT TO INFORMATION ACT.** ## **RESPONDENT'S EXHIBITS:-** **EXT. R7A A TRUE COPY OF THE G.O.(MS) NO.260/2010/H.EDN. DATED 20/08/2010.** **EXT.R8A COPY OF THE GOVERNMENT ORDER DATED 09/11/1998. EXT.R8B COPY OF THE UNIVERSITY ORDER GRANTING AFFILIATION TO COURSES DATED 30/09/2004. EXT.R8C COPY OF THE ORDER IN I.A. NO.8564 IN W.P.(C) NO. 7361/2013 DATED 02/03/2013.** **2/-..........** **WP(C).No. 7361 of 2013 (U)** **EXT.R9A COPY OF THE ORDER OF THE M.G. UNIVERSITY GRANTING PROVISIONAL AFFILIATION TO CERTAIN COURSES IN ST. DOMINIC'S COLLEGE, KANJIRAPPALLY DATED 01/07/2013. EXT.R9B COPY OF THE PROFORMA OF AGREEMENT AND AFFIDAVIT. EXT.R9C COPY OF THE ORDER GRANTING ADMINISTRATIVE SANCTION TO COMMENCE UNAIDED COURSES DATED 26/06/2013. EXT.R9D COPY OF THE ORDER GRANTING NOC DATED 03/07/2013. EXT.R9E COPY OF THE AGREEMENT DATED 01/07/2013 EXECUTED BY MUSLIM EDUCATIONAL SOCIETY BY WHICH THE 9TH RESPONDENT COLLEGE IS ADMINISTERED AND MANAGED, WITH THE GOVERNMENT. EXT.R9F COPY OF THE G.O. DATED 25/06/2013 SANCTIONING FOR STARTING SELF FINANCING / UNAIDED COURSES IN THE 9TH RESPONDENT COLLEGE DURING THE ACADEMIC YEAR 2013-14. EXT.R9G COPY OF THE G.O. DATED 01/07/2013, GIVING NO OBJECTION CERTIFICATE FOR STARTING SELF FINANCING / UNAIDED COURSES IN THE 9TH RESPONDENT COLLEGE DURING THE ACADEMIC YEAR 2013-14.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **rs.** ## **“C.R.”** ## **V.CHITAMBARESH, J.** ------------------------------- **W.P (C) Nos.7361, 8554, 18120 & 18124 of 2013** ------------------------------- **Dated this the 2[nd] day of August, 2013** ## **J U D G M E N T** Can an unaided or self-financing course be started in an aided college ? Can the University grant affiliation to such an unaided or self-financing course ? These questions have been baffling the managements and students for long. 2. The Writ Petitions have been filed seeking to prohibit the aided colleges affiliated to the various Universities in the State from conducting unaided or self-financing under graduate or post graduate courses. There is also a prayer to restrain the Government and Universities from granting approval and affiliation to start self-financing courses anew in aided colleges and to delink such courses hitherto conducted. The grievance projected in the writ petitions is that the interest of the students undergoing the aided courses would be in peril if the infrastructural and the instructional facilities are shared by students undergoing unaided or self-financing courses. The writ petitioners are the management of two unaided colleges and its association apart from one student of an aided college and the 2 W.P.(C) No.7361/2013 etc. respondents are the Government, Universities and a few Colleges. 3. The grant of affiliation to a college or a course by an University is governed by the University Acts like the Kerala University Act, 1974, the Calicut University Act, 1975, the Mahatma Gandhi University Act, 1985 etc. There are also Statutes and Regulations in addition which detail the procedures for obtaining affiliation to the various colleges and courses and the pre-requisites for the grant of same. No statutory prohibition or inhibition in any of the University Acts or Statutes has been brought to my notice as regards the grant of affiliation to a selffinancing course in an aided college. Such self-financing courses are being conducted in the aided colleges of the State for the past over a decade and still the students often do not get admission in the desired course or discipline. Independent provisions in the University Acts and Statutes as regards aided and unaided colleges are not decisive to hold that there cannot be an unaided course in an aided college. 4. The petitioners place heavy reliance on the W.P.(C) No.7361/2013 etc. 3 following observation of the Division Bench of this Court in **Calicut University v. Chirst College, Irinjalakuda** [W.A.No.2096/2009] : “We also feel that infrastructure facilities of an aided college should not be shared by 'another institution' started in the self-financed sector because, if it is permitted, the students in the aided college will have to share the facilities which may lead to lack of required facilities for such students leading to the aided college loosing affiliation already enjoyed by it.” The 'another institution' mentioned above is the Christ College of Physical Education (an altogether different entity though belonging to the same educational agency) which wanted to conduct an unaided course in the aided college - Christ College. That is not the case in these batch of writ petitions where the same college belonging to one educational agency wants to start an additional course therein though in the unaided or selffinancing stream. Thus the observation of the Division Bench in Christ College's case is clearly distinguishable and cannot be said to be one prohibiting the grant of affiliation by the University to an unaided course in an aided college. W.P.(C) No.7361/2013 etc. 4 5. The infrastructural and instructional facilities available to start a college or course is assessed by the inspection commission constituted for the purpose on the basis of which only further steps are taken. The Syndicate of the University then resolves to obtain the views of the Government as regards grant of affiliation to any college or course and the resolution is forwarded by its Registrar. The Government normally insists on an agreement with the management as regards the availability of teaching staff, financial commitment, sharing of seats etc. before giving No Objection Certificate. Several of such agreements executed in the recent past contain clauses to the effect that the services of staff of aided sector will not be utilised for the unaided course and that there will not be any financial commitment to the Government. The Government also reserves unto itself the power to withdraw sanction without formal notice to the educational agency in the event of breach of any of the terms and conditions of the agreement. This would allay the apprehension of the petitioners that the services of the teaching and non-teaching staff in the aided sector would be W.P.(C) No.7361/2013 etc. 5 utilised for the unaided sector too in the colleges. 6. Moreover the University Acts and the Statutes provide for dis-affiliation of the college or course on proved violation of the terms of the grant of affiliation on motion made by the aggrieved parties. Section 72 of the Mahatma Gandhi University Act, 1985 and Article 14 of Chapter 23 of the Mahatma Gandhi University Statutes, 1997 concern disaffiliation and similar provisions are there in other University Acts and Statutes. Even any of the teacher or the student of a college if aggrieved can set the ball in motion for the revocation of No Objection Certificate by the Government or the disaffiliation by the University. Thus there are inbuilt checks and balances in the University Acts and Statutes in order to prevent violation of the conditions of No Objection Certificate or the terms of grant of affiliation. 7. The petitioners contend that there will be huge disparity between students undergoing aided courses and unaided courses in the same college with two sets of teachers and different scale of tuition fee. Such disparity would arise only W.P.(C) No.7361/2013 etc. 6 if the same courses with identical disciplines are conducted in the aided and unaided streams in the same college which ofcourse should be averted in future. The Government is however free to permit unaided courses in aided colleges in a different discipline which will not cause any embarrassment to the students or staff. It is upto the Government to grant a No Objection Certificate as per its existing policy and it is for the University to grant affiliation depending upon the facilities available. The Supreme Court in **State of Himachal Pradesh** **and others v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh** [(2011) 6 SCC 597] had occasion to observe as follows:- “21. ............. Inasmuch as ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstance based on relevant and acceptable materials. The courts do not substitute their views in the decision of the State Government with regard to policy matters. In fact, the court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation W.P.(C) No.7361/2013 etc. 7 or policy decision of the Government unless it runs counter to the mandate of the Constitution.” Thus it is beyond the purview of this Court to weigh the policy decision of the Government in the matter of granting or refusing a No Objection Certificate for an unaided course to be started in an aided college unless it runs counter to any law. 8. It is extremely doubtful as to whether a management association could maintain a writ petition of this nature in view of the dictum in **Dr.Pournamy Mohan and others v. State of Kerala and others** [(2012) 1 KLT 686]. The two unaided colleges have not established any violation of any of the provisions of the University Act or Statutes leave alone the legal injury caused to them by the grant of affiliation. The solitary student who also figures as one of the writ petitioners has no specific case that his studies have impaired owing to the grant of affiliation to an unaided course in his college. Neither the No Objection Certificate issued by the Government nor the affiliation granted to any unaided course by the University is challenged in any one of the writ petitions. Only the letter addressed by the Registrar of the Mahatma Gandhi University W.P.(C) No.7361/2013 etc. 8 seeking the views of the Government for affiliation has been exhibited and the writ petitions are hence pre-mature. 9. Education is a national wealth which must be distributed equally and widely as far as possible in the interest of creating an egalitarian society to enable the Country to rise high and face global competition [See **P.A.Inamdar v. State of Maharashtra** (2005 (6) SCC 537)]. More educational avenues should be opened for the students of the State of Kerala and some of the courses like B.Com. (Taxation), B.A (Animation), M.Sc. (Actuarial Science) etc. are new disciplines. The objection of the respondents that the writ petitions are engineered by a few unaided colleges with a commercial object in order to garner students cannot altogether be brushed aside. The writ petitions fail and are dismissed. No costs. **V.CHITAMBARESH, Judge.** nj.