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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936** **WA.NO. 1265 OF 2013 () IN WP(C).7361/2013 -------------------------------------------** ## **JUDGMENT IN WP(C) 7361/2013 OF HIGH COURT OF KERALA** ## **APPELLANT(S)/APPELLANT:** **------------------------** **KERALA ARTS & SCIENCE UNAIDED COLLEGE MANAGEMENT ASSOCIATION REGN NO 84/2008, REPRESENTED BY ITS SECRETARY AL-AZHAR COLLEGE CAMPUS, PERUMPILICHIRA P O THODUPUZHA-565805** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.V.S.AFSAL KHAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY ITS PRINCIPAL SECRETARY HIGHER EDUCATION DEPARTMENT THIRUVANANTHAPURAM-695001** **2. UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG NEW DELHI-110002** **3. MAHATMA GANDHI(M.G) UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686560** ## **4. CALICUT UNIVERSITY** **REPRESENTED BY ITS REGISTRAR, THENIPALAM, CALICUT-673634** ## **5. KANNUR UNIVERSITY** **REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM, 695034** ## **WA.NO. 1265 OF 2013** **6. KANNUR UNIVERSITY , REPRESENTED BY ITS REGISTRAR , KANNUR-570567** **7. ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION STATE COMMITTEE OFFICE, MATHRUBHOOMI ROAD, VANCHIYOOR THIRUVANANTHAPURAM-695035** **8. ANEESH K K, S/O.KHALID AGED 21 YEARS KUTTIMACKAL HOUSE, ERUMATHALA P O CHOONDI, ALUVA, 683105** ## **9. MANAGER** **NIRMALA COLLEGE, MUVATTUPUZHA-686661** ## **10. MANAGER DEVAMATHA COLLEGE, KURUVILANGAD-686633** ## **11. MANAGER** **PAVANATMA COLLEGE, MURRIKKACHERRY-685604** ## **12. MANAGER** **ST.STEPHEN'S COLLEGE, UZHAVOOR-686634** ## **13. MANAGER** **ST.GEIRGE COLLEGE, ARUVITHURA-686122** ## **14. MANAGER** **ST.DOMINIC'S COLLEGE, KANJIRAPPALLY-686512** **15. MANAGER ALPHONSA COLLEGE, PALA-686574** ## **16. MANAGER** **ASSUMPTION COLLEGE, CHANGANACHERRY-686101** **17. MANAGER, BISHOP CHULAPARAMBIL MEMORIAL COLLEGE, CHANGANACHERRY-686101** **18. SECRETARY CORPORATE MANAGEMENT OF M O COLLEGES, DEVALOKAM KOTTAYAM-686001** ## **19. MANAGER OF COLLEGES** **BISHOP'S HOUSE, KOTHAMANGALAM-6886691** ## **20. MANAGER** **CMC COLLEGE, KOTTAYAM-686001** ## **WA.NO. 1265 OF 2013** ## **21. THE PRINCIAPL** **ST.TEREASA'S COLLEGE, ERNAKULAM, KOCHI-682011** **22. MES COLLEGE MARAMPALLY, MARAMPALLY P O, ALUVA ERNAKULAM, REP BY BY ITS PRINCIPAL-683105** **23. THE PRINCIPAL, THEVARA, COCHIN-682013** **24. THE PRINCIPAL ST.BERCHMANS COLLEGE, CHANGANACHERRY-686101** **25. THE MANAGER AQUINAS COLLEGE, EDACOCHIN, COCHIN-682010** **26. THE MANAGER MORNING STAR HOME SCIENCE COLLEGE ANGAMALY SOUTH P O, PIN-683573** ## **27. MANAGER** **ST.PAULS COLLEGE, KALAMASSERY-683503** **28. ST.MARY'S COLLEGE OF COMMERCE AND MANAGEMENT STUDIES, THRUTHIPILLAY, PERUMBAVOOR, ERNAKULAM DIST REPRESENTED BY ITS MANAGER T T JOY, AGED 60 YEARS, S/O.THARU, THOMBRA HOUSE PULLUVAZHY P O, PERUMBAVOOR R28 BY ADV. SRI.ALEXANDER JOSEPH R22 BY ADV. SMT.M.A.VAHEEDA BABU R22 BY ADV. SRI.K.A.NOUSHAD R22 BY ADV. SRI.P.U.VINOD KUMAR R22 BY ADV. SRI.KANDAMPULLY RAHUL R22 BY ADV. SRI.MITHUN BABY JOHN R8 BY ADV. SRI.K.JAJU BABU R8 BY ADV. SMT.M.U.VIJAYALAKSHMI R8 BY ADV. SRI.BRIJESH MOHAN R25,R26 BY ADV. SRI.N.JAMES KOSHY R5 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. R9,R10,R12,R13,R14,R15,R16,R17,R18,R19,R20,R27 BY ADV. SRI.BABY ISSAC ILLICKAL R11 BY ADV. SRI.V.M.KURIAN R21,R 23 & 24 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) R21,R 23 & 24 BY ADV. SRI.TONY GEORGE KANNANTHANAM R-R3 BY ADV. SRI.P.JACOB VARGHESE (SR.) R-R3 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R-R3 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G.UNIVERSITY** **R2 BY ADV. SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA** **BY SRI.ALEXANDER JOSEPH** **R1 BY GOVERNMENT PLEADER SHRI P.I. DAVIS** **BY SRI.P.SANJAY** **BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS BY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.08.2014, ALONG WITH W.A. NO.1243 OF 2013 AND CONNECTED CASES THE COURT ON 26.09.2014 DELIVERED THE FOLLOWING:** **“C.R.”** ## **ASHOK BHUSHAN, Ag. C.J. and A.M. SHAFFIQUE, J.** **==================================== W.A. Nos.1265, 1243, 1259 & 1472 of 2013 ==================================== Dated this the 26[th] day of September, 2014** ## **J U D G M E N T** ## **Ashok Bhushan, Ag. C.J.** These four Writ appeals have been filed against the common judgment dated 02.08.2013 of a learned Single Judge by which judgment all the Writ Petitions were dismissed. W.A. No.1265 of 2013 is being treated as the leading Writ Appeal and reference to the pleadings in the above Writ Appeal shall suffice to decide all the Writ Appeals. 2. Brief facts giving rise to the Writ Appeals need to be noted are: The appellants shall hereinafter be referred to as the Writ Petitioners and the respondents as respondents to the Writ Petitions. Writ Petition No.7361 of 2013 giving rise to W.A. No.1265 of 2013 was filed by ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 2 :- the Kerala Arts and Science Unaided College Management Association impleading the State of Kerala as respondent No.1, University Grant Commission as respondent No.2, Mahatma Gandhi University as respondent No.3, Calicut University as respondent No.4, Kerala University as respondent No.5 and the Kannur University as respondent No.6. Respondent Nos.9 to 28 are the different private colleges affiliated to Universities. The Writ Petition was filed by the petitioner aggrieved by the action of respondents 3 to 6, Universities in permitting the aided colleges receiving aid from the Government to conduct unaided courses. The petitioner in W.P(C) No.7361 of 2013 claimed to be the Association of unaided College Management whereas petitioner in Writ Petition No.18120 of 2013, giving rise to W.A. No.1243 of 2013, is the CET College of Management & Science and Technology, Ernakulam, Kerala, through its Secretary. Petitioner in Writ Petition **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 3 :- No.8554 of 2013, giving rise to W.A. No.1259 of 2013, is a student of St.Pauls Arts and Science College, Kalamassery, Aluva studying in B.A (Economics) whereas the petitioner in W.P(C) No.18124 of 2013, giving rise to W.A. No.1472 of 2013, is the Ilahia College of Arts & Science and Technology, through its Manager. 3. Management of different private colleges who have come up in the Writ Petitions objects to the affiliation granted by the University to different unaided/self financing courses in the aided colleges. Petitioner's case in the Writ Petition is that the University cannot grant permission to run self financing courses in an existing aided college. Petitioner's case further is that aided institutions are using the infrastructure, teaching and non-teaching staff for the purpose of running the self-financing courses which has never been the intention of the University Act or Statute. It is the further case that the State **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 4 :- Government ought not have granted no objection certificate to these colleges to run self-financing courses. Reliance on a Division Bench judgment of this Court in W.A. No.2096 of 2009 dated 01.02.2011 in _Calicut University and another v. Christ College, Irinjalakuda_ has been referred to. Reference has also been made to a letter dated 08.06.2011 of the University of Calicut where decision of the Syndicate has been communicated to the Principal that the Syndicate has resolved that no aided colleges be permitted to admit students for self-financing UG and PG programmes from the academic year 2011-2012. Further letter dated 16.06.2011 has been brought on record as Ext.P3 by which the decision of the Syndicate dated 07.05.2011 referred to in the letter dated 08.06.2011 was kept in abeyance until further orders. In the Writ Petition Ext.P4 was filed, which is a letter dated 17.10.2012 issued by the Mahatma Gandhi University ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 5 :- where enhancement of fee related to granting of affiliation to colleges has been notified. Petitioner in Writ Petition No.7361 of 2013 claimed to have submitted a detailed representation dated 20.12.2013 before the Principal Secretary, Higher Education Department, Government of Kerala praying that aided colleges be prohibited to take up self-financing courses. In the above background Writ Petition No.7361 of 2013 was filed praying for the following reliefs: _(i) to issue a writ in the nature of mandamus or any other writ or order directing respondents 1 to 6 to take steps forthwith to prohibit aided colleges from running self financing UG & PG degree courses in the same building or in any other manner by utilizing the infrastructure, staff strength, library, etc and such other facilities meant for students admitted in the aided stream._ _(ii) to issue a writ in the nature of mandamus or any other writ or order_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 6 :- _directing respondents 1 and 3 to 6 to take urgent measures to delink self-financing courses from the aided colleges in the State of Kerala taking note of the view expressed by the Division Bench of this Hounourable Court in Ext.P1._ _(iii) to declare that students of the aided colleges cannot be compelled to share the facilities meant for them with the students admitted under self-financing sector in the light of the view taken by the Division Bench of this Honourable Court in Ext.P1._ _(iv) to issue a writ in the nature of mandamus or any other writ or order directing the 4[th] respondent University to revive Ext.P2 forthwith and further direct respondents 3, 5 & 6 to issue orders similar to Ext.P2 to prohibit aided colleges from admitting students for self-financing UG & PG degree programmes from the academic year 2013-2014._ _(v) to issue a writ in the nature of mandamus or order directing the 1[st]_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 7 :- ## _respondent to dispose of Ext.P5 petition after affording opportunity to the petitioner.”_ 4. Similarly Writ Petition Nos.18120 and 18124 of 2013 have been filed by two private aided colleges on almost similar pleadings. In Writ Petition No.18124 of 2013, challenge was also raised to order dated 31.05.2013 issued by the Mahatma Gandhi University granting affiliation to new courses/increase in intake/additional batch for the academic year 2013-14. Names of Colleges and the scheme of programmes have been detailed in Ext.P3. In Writ Petition No.7361 of 2013 Interlocutory applications were filed by the petitioner bringing on record orders issued on 31.05.2013 by the Mahatma Gandhi University with a prayer to stay the operation of the further proceedings pursuant to Ext.P6 order dated 31.05.2013. 5. Counter affidavits were filed in the Writ Petition by several private colleges which were arrayed **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 8 :- as respondents as well as by the 3[rd] respondentMahatma Gandhi University. In the counter filed by the 3[rd] respondent it is stated that unaided courses in aided colleges are being sanctioned only on the basis of no objection certificate issued by the Government of Kerala with specific direction not to utilize the services of teaching and non-teaching staff of the aided stream for unaided courses. It is further pleaded that policy of the Government is not to sanction additional aided courses in aided Colleges, hence the Government sanctions only self-financing courses in aided colleges. It is further stated that the University periodically conducts inspection, assesses the performance of the unaided courses in aided colleges and checks if there is any violation of norms on the part of the management. It is submitted that the fee structure of aided and unaided steams is different. It is submitted that the Mahatma Gandhi University Statutes, 1997, Chapter 23 **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 9 :- enables the University to give affiliation to new colleges and also new courses in existing colleges. It was pleaded that the said chapter did not make any distinction in affiliation between aided colleges and unaided colleges. A counter affidavit by the 5[th] respondent, i.e., Kerala University, has also been filed by its Registrar in which it is stated that the Kerala University is against the practice of granting of unaided courses in the aided sector and a resolution to that effect was taken on 02.08.2002 and 03.08.2003 by the Senate. It was further pleaded that the University was constrained to grant provisional affiliation to some of the unaided courses in aided colleges in compliance of the judgments passed by this Court. It was ensured that the educational agencies had complied with the statutory and academic requirements stipulated for conducting the courses and that the existing infrastructural and instructional facilities in the aided sector were not being **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 10 :- used in the running of unaided courses. Details of various courses which were permitted to be conducted in the aided colleges have also been mentioned in paragraph 4 of the counter affidavit. The University has further pleaded that it requested the Government to change its policy in granting no objection certificates to the aided colleges for running unaided courses but no decision by the Government was communicated in the above regard. 6. We have heard Shri Ramakumar, Senior Advocate, Shri Devan Ramachandran, Shri C.A. Majeed, Shri Alias M.Cherian for appellants. We have heard Shri Jacob Varghese, Senor Advocate for the Mahatma Gandhi University, Shri V.A.Muhammed, Standing Counsel for Kannur University and Shri Bechu Kurian, Standing Counsel for the Kerala University. Shri S.Krishnamoorthy has appeared for the University Grant Commission. We have also heard the learned counsel **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 11 :- appearing for the respondents-private Colleges, Shri P.I.Davis, learned Government Pleader and Smt.M.A. Vahida, learned counsel for the 22[nd] respondent. 7. Submission which has been pressed by the learned counsel for the appellant in support of the appeal is that in the scheme of various University Acts prevailing in the State of Kerala aided and unaided colleges are two separate entities with separate Principals, separate laboratory and separate affiliation. No aided colleges can run within its premises both aided and unaided courses with the same staff and infrastructure. The aided institutions are running unaided self financing Courses as part of the aided institution after receiving huge financial aid from the University Grant Commission and other agencies. Students are subjected to discrimination in the matter of collection of fee and staff are also subjected to discrimination in the matter of payment of salary. It is **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 12 :- impermissible in law to make use of service of teachers in aided colleges to conduct teaching in unaided colleges. Learned Single Judge also did not appreciate the precedential value of the Division Bench judgment dated 01.02.2011 in W.A. No.2096 of 2009 - _Calicut University and another v. Christ College, Irinjalakuda_ which was binding on the learned Single Judge. Learned Single Judge also erred in holding that the petitioner in W.P(C) No.7361 of 2013 had no locus to file the Writ Petition. Permitting self-finance course in the aided institutions is not in accordance with the scheme as was envisaged in the different University Acts and Statutes. It is submitted that the State Government has been granting no objection certificate to the aided institutions which is not in the interest of education or interest of students. 8. Learned counsel appearing for the Mahatma Gandhi University refuting the submission of the learned **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 13 :- counsel for the appellant submitted that affiliation granted to unaided courses in the aided colleges is fully permissible as per the Mahatma Gandhi University Act and Statutes. It is submitted that there is no statutory restriction in any provision of the Act or Statutes from granting affiliation to new courses in aided institutions under the self-financing scheme. It is submitted that for granting affiliation there is no distinction between aided or unaided institutions. Only condition for grant of affiliation is that the educational agency should be able to fulfill various requirement and pre-conditions for grant of affiliation of unaided courses. Learned counsel appearing for the Kerala University, Shri Bechu Kurian submitted that although the University's resolution is that no unaided courses be affiliated to the aided colleges but in view of the no objection certificate granted by the State Government, the University has to grant affiliation of unaided courses in **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 14 :- aided Colleges. Learned counsel for the Private Colleges have also supported the action of the University granting affiliation of unaided courses in aided colleges. It is submitted that each college fulfills all conditions of affiliation including having sufficient infrastructure, staff for running unaided courses, hence there was no impediment in granting affiliation to unaided or self financing courses. It is submitted that had the colleges violated any of the conditions or failed to provide infrastructure facilities for running unaided courses, the University ought to have taken action for disaffiliation which has never been done. It is true that they are complying all the conditions in running unaided courses in the aided colleges. It is submitted that for running unaided courses colleges are not utilizing services of teaching or non-teaching staff of the aided college which is the condition for granting affiliation of unaided courses. It is submitted that separate staff has **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 15 :- been recruited for teaching self financing courses. Learned counsel for the private institutions further submitted that there is no restriction in utilizing various common facilities which are provided by institutions to the students. It is submitted that there cannot be any distinction between students of unaided and aided streams with regard to utilization of playground of the institutions. It is submitted that there is no restriction in the University Act or Statutes in granting affiliation to self-financing courses in an aided college. It is submitted that petitioners which are private unaided Colleges have no locus to challenge the grant of affiliation of self- financing courses to the aided colleges. It is submitted that none of the rights of the petitioners have been infringed by the grant of permission to run self-financing courses and the Writ Petitions at their instance were liable to be dismissed on the ground of lack of locus. ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 16 :- 9. Learned counsel for the parties have also placed reliance on the various judgments of this Court and the Apex Court which shall be referred to while considering the respective submissions. 10. From the pleadings and submissions raised by learned counsel for the parties, the following are main issues, which arise for consideration in these Writ Appeals: - (i) Whether various University Acts and its Statutes framed thereunder do not permit/prohibit running of unaided courses/subjects in aided private colleges? - (ii) Whether running of unaided courses/subjects in aided private colleges is discriminatory and arbitrary for the students taking education in two different types of courses, i.e., aided and unaided ? - (iii) Whether the Division Bench judgment in W.A.No. 2096 of 2009 ( _**Calicut**_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 17 :- ## _**University and another v. Christ**_ _**College**_ ) lays down the ratio (i) that in an aided private college no self financing course/subject can be permitted; (ii) permitting self-financing course/subject in an aided private college shall lead to utilisation of services of teaching and non-teaching staff and also the infrastructure? - (iv) Whether the petitioners/appellants had - no locus standi to file the Writ Petitions? 11. **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 introduction of various professional courses in the field of education. The importance of education has been emphasized time and again by Saints, Scholars and Courts of Law. In _**Brown v. Board of Education**_ [347 **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 18 :- ## US 483(1954)] 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 of 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. A well educated and orderly society is the object of all democratic Governments. The State to fulfill its constitutional obligation have taken measures to establish Colleges and Universities in the State. Since the issue in these batch of Writ Appeals is as to whether in an aided private College self financing **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 19 :- courses/subjects are not permitted by Act or Statutes, it is necessary for us to look into the statutory scheme delineated by the Act and the Statutes. 13. The State legislature by different enactments has established several teaching and affiliating Universities in the State of Kerala. The enactments establishing different Universities in the State of Kerala are the Kerala University Act, 1974, Calicut University Act, 1975, Mahatma Gandhi University Act, 1985 and Kannur University Act, 1996, which are respondentUniversities in these batch of Writ Appeals. The orders affiliating different private Colleges, which have been challenged in different Writ Petitions relate to the order issued by the Mahatma Gandhi University, hence it shall be sufficient to refer to the provisions of Mahatma Gandhi University Act, 1985 (hereinafter referred to as 'the Act, 1985') and the Statutes framed thereunder to examine the scheme of affiliation of Colleges and grant **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 20 :- of permission to run new subjects and courses. Whether the scheme delineated by the Act, 1985 and the Statutes indicate a statutory scheme prohibiting affiliation of self-financing courses/subjects in an aided institution, is the question, which is to be answered, hence the statutory scheme has to be scrutinized in the above light. 14. Section 2 of the Act, 1985 contains definition clauses. Section 2(2) defines 'affiliated college', Section 2(7) defines 'college', Section 2(17) defines 'private college' and Section 2(30A) refers to 'Un-aided College', which are quoted below: _“2(2) 'affiliated college' means a college affiliated to the University in accordance with the provisions of this Act and the Statutes and in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations;_ _xx xx_ _xx_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 21 :- _2(7) “College” means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations;_ _xx xx_ _xx_ _2(17) “private college” means a college maintained by an educational agency other than the Government or the University and affiliated to the University;_ _xx xx_ _xx_ _2(30A) “Un-aided College” means a private college which is not entitled to any financial assistance from the Government or the University;”_ 15. Section 5 of the Act, 1985 enumerated various powers of the University, which also include power to affiliate to its Colleges in accordance with the provisions of the Act, Statutes, Ordinances and Regulations and to withdraw affiliation of Colleges. Section 23 enumerates **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 22 :- powers of the Syndicate. Section 23(i) of the Act, 1985 is quoted as follows: _“23._ _**Powers of Syndicate** .- Subject to the provisions of this Act and the Statutes, the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers,namely:-_ _(i) to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in this Act and the Statutes;”_ 16. Section 35 of the Act, 1985 provides that the Statutes may provide for all or any of the various matters enumerated therein, which also include “the conditions and procedure for affiliation of colleges”. Chapter VIII of the Act, 1985 deals with “private colleges and affiliation of colleges”. Sub-sections (1) to (3) of Section 58 are relevant for the present case, which are **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 23 :- ## quoted as under: _“58._ _**Affiliation of colleges** .- (1) An application for affiliation to the University of any college or for affiliation in new courses in any affiliated college shall be sent by the educational agency to the Registrar within such time and in such manner as may be prescribed by the Statutes._ _(2) The terms and conditions of affiliation of a college or of affiliation in new courses in an affiliated college and the procedure to be followed by the Syndicate in granting such affiliation, including the period within which the Syndicate shall consider an application under sub-section (1), shall be prescribed by the Statutes:_ _Provided that the Chancellor may, by notification in the gazette, for reasons to be specified in the notification, extend the period within which the Syndicate shall consider any application under sub-section (1), whether such period has already expired or not by such further period, not exceeding one year, as may be specified in such_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 24 :- _notification._ _Provided further that where an application for affiliation in a new course in an affiliated college could not be considered by the Syndicate within the time prescribed by the Statutes on the ground that the application was not sent by the Educational Agency in time and that the period could not also be extended under the preceding proviso, the Chancellor may, in public interest, by notification in the Gazette, direct that the Syndicate shall consider the application within such period as may be specified in the notification not exceeding one year from the date of commencement of the University Laws (Amendment) Act, 1989._ _(3) Without prejudice to the generality of the provisions of sub section (2), such Statutes may provide for the pattern of staff, scales of pay and terms and conditions of service of members of the staff and admission and selection of students for courses and examinations.”_ 17. Section 73A of the Act, 1985 has been added **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 25 :- in the Act by Act 9 of 1995, which is to the following effect: _“73A._ _**Special Provisions in respect of un-aided colleges** .- Not withstanding anything contained in this Act or Statutes, ordinances, Regulations, rules, bye-laws, or orders._ _(a) the scale of pay and other conditions of service of the teaching and non-teaching staff of unaided colleges; and_ _(b) the admission and selection of, and the fees payable by, students in such colleges, shall be determined, from time to time, by the Government on the basis of the recommendations of a committee by the Government consisting of -_ _(i) one of the vice-chancellors of the Universities in the State nominated by the Government;_ _(ii) the Secretary to Government, Higher Education Department (who shall be the convenor of the committee and_ ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 26 :- _(iii) the Director of Collegiate Education.”_ 18. The definition clause of the Act, 1985 as noted above defines 'affiliated college', 'college', 'private college' as well as 'unaided college'. In the present case we are concerned with 'private colleges', i.e., colleges maintained by an educational agency other than the Government or University and affiliated to the University. Private Colleges can both be aided and unaided. Definition of “Un-aided College” has been inserted by Act 9 of 1995, which means, private college is not entitled to any financial assistance from Government or University. In the present case, the private Colleges in which affiliation of new course/subject has been granted are all aided Colleges, which in one or other form are receiving aid from the government or University. 19. “College” is defined under Section 2(7) of the **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 27 :- Act, 1985, which means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Section 58 of the Act, 1985 provides for affiliation of colleges. Section 58 (1) uses the phrase “an application for affiliation to the University of any college or for affiliation in new courses in any affiliated college......”. Taking a plain and grammatical meaning of the above provision indicates that an application for affiliation to the University by any College can be made for affiliation in new courses in any affiliated college. Use of words “ **any College** ” in Section 58(1) of the Act, 1985 indicates that application for affiliation in new courses can be made both by aided or un-aided Colleges. There is no restriction with regard to nature of “new courses” sought to be applied. Subsection (2) of Section 58 provides that the terms and conditions of an affiliation shall be prescribed by the **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 28 :- Statutes. If the submission of learned counsel for the petitioner is accepted that in an aided College un-aided course cannot be affiliated, we have to read some more words in the Statutes, which on the principle of statutory interpretation has to be disapproved. Neither any word can be added or any word can be subtracted in a Statute and the Statute has to be read in a manner to have a full play. It is also relevant to look into the provisions of the Mahatma Gandhi University Statutes, 1997 (hereinafter referred to as 'the Statutes, 1997') to further examine the statutory scheme for affiliation of new courses and subjects. Chapter 23 of the Statutes, 1997 deals with 'affiliation of Colleges'. Statute 6 lays down power of the Syndicate to grant affiliation, which reads as under: _“6._ _**Power of the Syndicate to grant affiliation etc** .: (1) All applications seeking affiliation shall be considered by the Syndicate not later than 31[st] May preceding_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 29 :- _the academic year in which the courses are proposed to be started._ _(2) The Syndicate shall have power to affiliate any college within the territorial jurisdiction of the University preparing students for degree, titles or diplomas of the University which satisfies conditions prescribed in the laws of the University.”_ Chapter 23 provides details of procedure after receipt of the application, including appointment of a Commission to inspect the proposed site of a new college or to make a physical verification of the facilities that may exist for starting the new college/course. Statute 22 deals with 'financial stability', which is quoted as below: _“22. Financial Stability: Every college shall satisfy the syndicate that adequate financial provision is available for its continued and efficient maintenance either in the form of an endowment or in the form of bona fide financial security.”_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 30 :- 20. Chapter 23 does not indicate any restriction of affiliating a new course/subject without aid in an aided institution. To provide education is an obligation of the State by making effective provisions therefor as was laid down by the Apex Court in _**P.A. Inamdar v. State of Maharashtra**_ [(2005)6 SCC 537]. Paragraph 87 of the said decision is quoted blow: _“87. Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision therefor. Fundamental duties recognised by Article 51A include, amongst others: Article 51-A(h) to develop scientific temper, humanism and the spirit of inquiry and reform; and Article 51-A(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 31 :- _JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the preamble to the Constitution are to be achieved, the Indian polity has to be educated and educated with excellence. 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. “Tireless striving stretching its arms towards perfection” (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education.”_ 21. The provisions of Act, 1985 and the Statutes framed thereunder have to be read to give full meaning, which may achieve the object and obligation of the State. Whether the State permit opening of new subject/course with finance or without finance is the policy matter, which depends on the economic capacity of the State. **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 32 :- 22. Providing higher education especially professional education requires infrastructure and finances, which is an accepted position. Providing higher education calls on availability of heavy economic resources. The Apex Court in _**Unnikrishnan v. State of A.P's case**_ [(1993)1 SCC 645] made the following observations in paragraph 49: _“49. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the right of education by all appropriate means. But, with regard to the general obligation to provide education, the State is bound to provide the same if it deliberately starved its educational system by resources that it_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 33 :- _manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it had to take, under Article 45, within a prescribed time, which time-limit has expired long ago.”_ 23. It is on account of the financial constraints that the State has been permitting different private Colleges both aided and un-aided to run new courses/subjects by generating finances by the institutions/private Colleges themselves. The fact that the State Government is not ready to permit aided courses in the aided Colleges on account of not having adequate finance by itself cannot be read as a fetter in right of aided institutions to grow and create more and more avenues of education to meet the ever increasing requirements of students to have more and more **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 34 :- courses including professional courses for their learning knowledge and getting an employment. In the event the submission of petitioner is accepted that aided Colleges cannot run new unaided courses even if they are ready to generate finance by themselves, the said view will be a fetter in increase and proliferation of the education, which shall run counter to the object of University Act and Statutes. 24. The Government, while giving no-objection for running unaided/self-financing courses in aided institutions, is well aware that it is sanctioning unaided course in an aided institution. The Government insist the management to enter into an agreement with the Government before obtaining a no-objection for running an unaided course. Copies of few of the agreements entered into between the management and the Government are on record. Exhibit R9(a) is an agreement dated 1[st] July, 2013 entered into between the **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 35 :- Government and an educational agency, namely, MES College, Manampally, Aluva. Relevant portion of Exhibit R9(a) agreement reads as under: _“WHEREAS the Educational Agency has established an aided College by name MES College, Marampally, Aluva, Ernakulam Dist. (hereinafter referred as the 'College') in the year 1994._ _AND WHEREAS the Educational Agency has requested No Objection Certificate (NOC)/ sanction from the Government for conducting the following unaided and self-financing courses in the college for the academic year 2013-14 viz._ _1. B.Sc. Psychology - 30 seats 2. M.Sc. Computer Science - 15 seats 3. M.H.R.M. - 15 seats_ _AND WHEREAS the Educational Agency hereby agrees that it would conduct the course only in accordance with such conditions as may be prescribed by the Government of Kerala from time to time.”_ 25. The agreement further provides that services **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 36 :- of teaching and non-teaching staff of the aided sector shall not be utlised for the proposed unaided courses. Clause 14 of the agreement is as follows: _“14. The services of teaching and nonteaching staff of the aided sector shall not be utilised for the proposed unaided courses.”_ 26. Various orders of the Government issuing noobjection certificate also contain the same condition, including clause 14 as quoted, above reference is made to the Government order dated 25[th] July, 2009, Exhibit R9(b). The Government, thus, have conscientiously decided to permit running of aided courses in aided Colleges, which is noted in the orders referred to above and the agreement entered into between the management and the Government. It is a matter of policy of the Government to grant any unaided course in aided Colleges. Reasoning is obvious, i.e., the Government have no sufficient finances to permit running of new aided courses in aided Colleges. The **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 37 :- Academic Councils of the Universities have sanctioned various modern courses, which are useful to the students for obtaining employment and for equipping themselves with the modern science and technology, which is another aspect of the matter. The Government is free to frame its educational policy and change the policy from time to time. In this context, the learned Single Judge has rightly relied on the Apex Court judgment in _**State of Himachal Pradesh and others v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh**_ [(2011)6 SCC 597]. The Apex Court in the said judgment has laid down in paragraphs 21 and 22 as follows: _“21. Mr.Mridul further contended that the respondent was considered for selection to the post of Principal Scientist on the basis of his work and performance from 1985 to 1998. According to him, the nature, work, duties and responsibilities of a Senior Scientist and Principal Scientist are almost_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 38 :- _identical in nature, but in order to remove stagnation, the promotion is envisaged under the Career Advancement Scheme._ _22. Mr Mridul submitted that the stand of the respondent is fortified, reinforced and strengthened by the Career Advancement Schemes, 2004 and 2005 of the appellalnts. According to the Information, Handbook of Agricultural Scientists' Recruitment Board under the Right to Information act, 2005, the criteria for promotion is that the Board evaluates the contribution made by the Scientist concerned in academic research. The Board also evaluates the confidential reports for the last eight years while granting benefit of the Scheme. According to the procedure of the Career Advancement Scheme of 2004, the allocation of marks for personal interview has been reduced from 50% to 10% because the appellants themselves realised that allocation of 50% marks was highly excessive and in clear contravention of a series of judgments of this Court.”_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 39 :- 27. The Government have conscientiously taken decision to permit running of unaided selffinancing courses in aided institutions. Unless the action of the Government and the University violates the Act or statutory provision or is mala fide, this Court in its exercise of judicial review shall not substitute its decision. We have already observed that in the University Act and the Statutes there is no statutory provision, which may expressly or impliedly be read creating any fetter in granting affiliation of new selffinancing courses/subjects in an aided private College. Rather, statutory scheme delineates that statutory provisions permitted granting of affiliation in new courses/subjects in any College. 'Any College' includes aided, unaided, private or Government Colleges. 28. We, thus, conclude that there is no statutory restriction on the power of the University and the State Government to sanction new courses/subjects in ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 40 :- ## unaided stream in an existing aided College. 29. **Issue No.(ii)** : We come to the second issue, i.e., whether running of unaided courses/subjects in aided private Colleges is discriminatory and arbitrary for the students taking education in two different types of institutions. Elaborating the submission learned counsel for the petitioners have contended that the fee structure in unaided courses is on higher side, whereas fee structure in aided institution is on lower side. Hence, in one institution itself there shall be discrimination among the students regarding payment of fee. It is further submitted that admission procedure for filling the seats in aided institution as well as seats in unaided institution is also different, which is discriminatory, arbitrary and violative of Article 14 of the Constitution of India. Participation of private institution in advancement and imparting of higher education in different States in the country has now become accepted factors and **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 41 :- necessity. Fee structure and admission procedure in private institutions has been subject consideration before the Apex Court in several judgments. Charging of the capitation fee by the private institutions has already been disapproved by the Apex Court in _**T.M.A.Pai Foundation v. State of Karnataka**_ [(2002)8 SCC 481]. The question of fee structure to be charged in the institution was considered in _**T.M.A.Pai Foundation's case**_ (supra) as well as _**Islamic Academy of Education and another v. State of Karnataka and others**_ [(2003)6 SCC 697]. In subsequent judgment of the Apex Court in _**P.A. Inamdar's case**_ (supra) with regard to fee to be charged in private institution has laid down in paragraph 144 of the judgment as follows: _“144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic academy are in our view, permissible as regulatory measures aimed at protecting_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 42 :- _the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30 (1) or the right of minorities and nonminorities under article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.”_ 30. In so far as the State of Kerala is concerned, amendments have been brought in the Mahatma Gandhi University Act, 1985 by Act 9 of 1995 by which, Section 73A has been added. Similar amendment has been made in other University Act. 31. As per Section 73A fee payable by students in un-aided Colleges is to be determined from time to time **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 43 :- by the Government on the basis of the recommendation of a committee consisting of Vice-Chancellors of the Universities in the State nominated by the Government, Secretary to Government, Higher Education Department and the Director of Collegiate Education. In the agreement between the management and the Government by sanctioning self-financing course in the aided institution there is already necessary condition for payment of fee. Copy of the agreement is on record as Exhibit R9(a). Conditions 4 and 5 of Exhibit R9(a) agreement are relevant, which read as under: - _“4. The Educational Agency agrees to collect only such fees as determined by the Government from time to time from the students admitted to the college for the course._ _5. The Educational Agency agrees to institute adequate number of scholarships on merit-cum-means basis as determined by the Government from_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 44 :- _time to time to the students admitted to the courses.”_ 32. It is to be noted that the above agreement was entered for conducting unaided self-financing courses in an aided College, namely, MES College, Marampally, Aluva. When the fee structure is controlled by the Government with regard to an unaided course, the argument cannot be accepted that charging of fee on the student is arbitrary. In so far as alleged discrimination between fee to be paid in an aided College and, for a student studying in unaided course, the submission cannot be accepted that different fee scale for the above two categories of courses/subjects is violative of Article 14 of the Constitution of India. Admission in Government Colleges and aided institutions is merit based and is based on a procedure known to everyone. Admission in unaided course in different categories is also based on merit and as per **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 45 :- the procedure prescribed. Every student is free to compete and apply against a course best suited to him/her. The mere fact that a student could secure admission only in unaided course and is required to pay a different scale of fee as compared to aided course cannot be said to be discriminatory, since there is intelligible differentia between the two streams of admissions. 33. We are, thus, not inclined to accept the submission of learned counsel for the petitioners that there being different fee structures for unaided course and aided course, there is discrimination. It is further relevant to note that in these Writ Petitions the main challenge is that affiliation of unaided/self financing courses be not granted in aided institutions. There is no specific challenge to fee structure, nor petitioners can be said to be persons aggrieved with regard to payment of fee in unaided courses. **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 46 :- 34. We, thus, conclude that on the above submission, no fault can be found with affiliation of unaided/self-financing courses in unaided institutions. 35. Now we come to issue No.3, i.e., what is the ratio of the Division Bench judgment in W.A. No.2096 of 2009 - _Calicut University and Another v. Christ College, Irinjalakuda_ . Learned counsel for the petitioner submitted that the Division Bench laid down that the infrastructural 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. For appreciating the above observation of the Division Bench it is necessary to note the facts of the above case. The respondent college had applied for affiliation of degree course in Physical ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 47 :- Education. The University recommended commencement of B.P.Ed. Course. The Course however could not be started in the aided sector because of the non-approval from the Government. The college applied for approval from the N.C.T.E for starting a self financed college for Physical Education and the NCTE granted approval for starting the institution with an intake of 50 students. The Division Bench itself has noted the various conditions subject to which approval was granted by the NCTE. The Division bench stated the following in the above context. _“...The approval granted by NCTE is subject to various conditions which includes affiliation of the University on Universities being satisfied about the facilities available for granting affiliation. What is not clear from Ext.P5 is whether the respondent was permitted to start the course in the existing facilities within a period of three years thereafter. However, it is made clear in sub-_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 48 :- _clause (iii) of Clause 3 of Ext.P5 that the respondent should shift the institution to its own premises in a separate building within a period of three years from the date of recognition. The case of the University is that it cannot grant affiliation of any self financed institution within the premises of an aided college affiliated to it. The case of the University is that, if the respondent wants to start self financed college for starting the B.P.Ed. Course, it must have separate land and building of its own or in other words, separate infrastructure facilities independent of the facilities of the aided college presently being run by the respondent should be there..”_ Learned Single Judge has directed the University to grant affiliation against which the University has filed appeal. The Division Bench noted the contention of the college that respondents have set up separate building and infrastructural facilities for starting self financing college for Physical Education. Following was stated in **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 49 :- ## paragraph 3 of the judgment. _“After hearing both sides and after going through the orders, particularly Ext.P5 and the order impugned before the learned single Judge issued by the University namely Ext.P8, we are of the view that the University is entitled to verify availability of infrastructure for the self financed college before granting affiliation because, even according to the respondent, they are bound to comply with the conditions of approval granted by NCTE which inter alia provides for construction of building and establishment of separate infrastructure facilities within a period of three years from the date of their order. Further, the counsel for the respondent also submitted that the respondent has set up separate building and infrastructure facilities for starting self financed college for Physical Education. In the circumstances, we direct the respondent to complete construction of the building and provide the facilities, appoint the Principal and faculty members in terms of Ext.P5_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 50 :- _approval granted by NCTE and then approach the University with fresh application and if the University, on inspection, finds that the facilities are available, then the University is bound to grant affiliation for the degree course being started by the respondent. In our view, even if the building and other infrastructure facilities are not fully arranged, the respondent has still time to finish the constructions and for making arrangement of facilities by the end of this academic year, so that at least for the next academic year 2011-12 the respondent can start the Physical Education course in the self financed college...”_ The ultimate direction issued by the Division Bench is to the following effect: _“For the reasons stated above, we allow the writ appeal by vacating the judgment of the learned single Judge but with direction to the appellant University to grant_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 51 :- _affiliation to the self financed educational institution being started by the respondent for the degree course in Physical Education in terms of Ext.P5 approval, provided, the respondent establishes separate infrastructure facilities and provide instructional facilities including Principal and faculty members in terms of the approval granted by NCTE before the end of 31.03.2011 and the affiliation so granted should be for the next academic year, that is, 2011-12.”_ From the facts of the aforesaid case and the observations made by the Division Bench it is clear that in the above case the college contended before the court that they are starting a separate self financing educational institution for the degree course in Physical Education in terms of Ext.P5, approval. In the above context observations were made by the Division Bench that infrastructural facilities of an aided college **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 52 :- should not be shared by another institution started in the self financing sector. The said observations were made by the Division Bench in the context of a case where the college claimed that they are going to establish self financing institution separately for degree course in Physical Education. The above was not a case where additional courses/subjects were sought to be opened in an existing aided college and affiliation in that regard was asked for. 36. It is well established principle of statutory interpretation that judgments of courts are not to be treated as statutes. Observations in the judgments of courts are made for the purpose of explaining the case and not the purpose of defining. It is in this context observations of the Apex Court in **Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani** ([2004] 8 SCC 579) are relevant which are quoted below: _“9. Courts should not place reliance_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 53 :- _on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to_ _be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at page 761) Lord MacDermott observed: (All ER p.14 C-D)_ _“The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as they were part of an Act of Parliament and applying the rules of_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 54 :- _interpretation appropriate thereon. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge...”_ _10. In Home Office v. Dorset Yacht Co. (All ER p.297 g-h) Lord Reid said, “Lord Atkin's speech.... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances”. Megarry, J., in Shepherd Homes Ltd. v. Sandham (No.2) ([1971] 2 All ER 1267) observed: “One must not, of course, construe even a reserved judgment of Russel, L.J. As if it were an Act of Parliament.” And, in Herrington v. British Railways Board ([1972] 1 All ER 749 (HL) Lord Morris said: (All ER p.76f1c)_ _“There is a always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.”_ _11. Circumstances flexibility, one_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 55 :- _additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper._ _12. The following words of Lord Denning in the matter of applying precedents have become locus classicus_ _“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive._ **==> picture [114 x 7] intentionally omitted <==** _Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep_ ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 56 :- _the path to justice clear of obstructions which could impede it.”_ 37. It is further relevant to note that in the present cases copy of the order of the State Government granting no objection certificate as well as agreement entered between the Government and institutions has brought on record which specifically provided in clause 14 that services of teaching and nonteaching staff shall not be utilized for the proposed unaided courses. Orders and agreements further stipulate that the educational agencies shall obtain and comply with the terms and conditions set out by the affiliating University. There is a specific prohibition of not utilizing the services of teaching and non-teaching staff of aided college. It cannot be read into conditions of the orders and agreement of the Government entered that it is impermissible to use any infrastructure of aided college provided it is not so **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 57 :- contemplated in the orders and agreement. Thus the Division Bench judgment in W.A. No.2096 of 2009 - _Calicut University and Another v. Christ College, Irinjalakuda_ cannot be read to lay down any ratio that in an aided institution no new course/subject in unaided stream can be opened. The Division Bench judgment thus does not prohibit the University to grant affiliation in new unaided course/subject in an aided institution. 38. Now we come to the last issue, i.e., the locus of the petitioner to file the Writ Petition. 39. As noted above, out of the four Writ Petitions, 2 Writ Petitions have been filed by private Colleges, one has been filed by the Association of Private Colleges and one has been filed by a student, studying for B.A degree course. Learned Single Judge in the impugned judgment relying on an earlier judgment reported in **Dr.Pournami Mohan and Others v. State of Kerala and Others** (2012 [1] KLT 686) has observed that it is **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 58 :- doubtful as to whether a management association could maintain a writ petition. **Dr.Pournami Mohan's case** was a case where the issue regarding sharing of seats between the management of various self financing medical colleges and the Government for the Post Graduate Medical courses was under consideration. One of the Writ Petitions was filed by the Kerala Christian Professional College Managements' Federation. In the above context following was laid down in paragraph 12: _“The practice of filing Writ Petitions by_ _'Associations' and 'Federations' of Managements of Colleges without the individual managements figuring as petitioners has also to be deprecated. Such practice is prevalent only in industrial parlance wherein the cause of numerous employees is espoused by Trade Unions and Associations to strengthen their bargaining power. The law makers of the Constitution had advisedly made a clear distinction_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 59 :- _between a fundamental right available to 'any person' and those guaranteed to 'all citizens'. Part III of the Constitution of India deals with the same and all citizens are persons even though all persons are not citizens. A registered Federation might be a person entitled to file a Writ Petition and is not a citizen who alone can complain of violation of Art.19(1)(g) of the Constitution of India.”_ 40. From the observations made above it is clear that the learned Single Judge has not held that the Writ Petition cannot be entertained. Observation, however, was that a registered Federation might be a person entitled to file a Writ Petition and is not a citizen who alone can complain of violation of Article 19(1)(g) of the Constitution of India. In the present batch of Writ Petitions, Writ Petitions are not only by Management Federations but two Writ Petitions are by Private Colleges and one by a student. **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 60 :- 41. Learned counsel appearing for the Private Colleges, Advocate Smt.Vaheeda has strenuously contended that there is no locus to file the Writ Petitions and the Writ Petitions be thrown out on the ground of lack of locus alone. Learned counsel has placed reliance on the decision reported in **J.M. Desai v. Roshan Kumar** (AIR 1976 SC 578). In the above case question which arose for consideration was as to whether the proprietor of a cinema theatre holding a licence for exhibiting cinematograph films is not entitled to invoke the certiorari jurisdiction to get no objection certificate granted by the District Magistrate in favour of a rival trade. The Apex Court in the said case held that the Writ Petition at the instance of the holder of a cinema theatre licence was not maintainable. Reliance was further placed by Advocate Smt. Vaheeda on a judgment of the Apex Court in **Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & Ors.** (JT 2012 [11] SC **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 61 :- 95). In the said case the Apex Court had occasion to consider the phrase “person aggrieved” and locus of respondent to file Writ Petition challenging the Caste Certificate issued to the appellant. Paragraph 7.1 which is relevant is quoted as below: _“7.1 Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 62 :- _performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.(Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad and Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736 : (1996 AIR SCW3424); and Tamil Nadu Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and Ors., (2009) 2 SCC 784).”_ 42. Learned counsel appearing for one of the Writ ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 63 :- Petitioners in the Writ Petitions, Shri Devan Ramachandran, refuting the submission of learned counsel for the respondents submitted that petitioner had sufficient locus to file the Writ Petition. It is submitted that petitioners are private unaided colleges who are imparting education. It is submitted that imparting education of aided and unaided institutions are regulated by the University Act and statutes and in any event when the University and the Government act contrary to the statutory provisions of the State, Writ can be filed. Petitioner who is also an educational institution can ask the court to issue appropriate writ for enforcement of statutory duty which is cast upon the University and State. Learned counsel for the petitioners placed reliance on the decision reported in **M.S.Jayraj v. Commissioner of Excise** ([2000] 7 SCC 552. In the above case the Commissioner of Excise has permitted the appellant to locate the shop outside the ## **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 64 :- range. The third respondent who was running a hotel and restaurant had obtained FL-3 licence to supply foreign liquor in peg measurements to patrons visiting the hotel filed the Writ Petition challenging the permission granted by the Excise Commissioner. One of the issues raised before the court was as to whether the third respondent had locus to challenge. The Apex Court after noticing the earlier judgments including the judgment in **J.M. Desai's case** (supra) repelled the objection regarding locus. It was held that when the order of Excise Commissioner was passed in violation of statutory provision the same could have been complained of in a Writ Petition. The court proceeded to examine the issues on merit. Following was laid down in paragraphs 11, 12, 13 and 14. _“11. It is not discernible from the Judgment of the learned single Judge whether appellant had raised the issue of locus standi_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 65 :- _before him. But appellant did raise it before the Division Bench. In this appeal also he endeavoured to contend that the right of the third respondent is not affected by the order passed by the Excise Commissioner as the licence granted to her is only for selling liquor in small quantity and that too only to those persons who visit the hotel and restaurant, whereas the appellant is not permitted to sell it like that. We too feel that if the business of the third respondent is to be carried on in accordance with the rules such business cannot affect the business of the appellant. In that view of the matter appellant would not be a rival trader or a rival business contender for the third respondent. Perhaps bearing in mind this aspect the third respondent maintained the stand in the counter-affidavit filed in this Court that her objection against the order of the Excise Commissioner is as a citizen of Karukachal Panchayat and she is entitled to raise such objection._ _12. In this context we noticed that this_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 66 :- _Court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros., (1970) 1 SCC 575 : (AIR 1971 SC 246) and Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC 671 : (AIR 1976 SC 578) and a much wider canvass has been adopted in later years regarding a person's entitlement to move the High Court involving writ jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai (AIR 1976 SC 578) (supra) pointed out three categories of persons vis-avis the locus standi : (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 67 :- _Lordships observed the following (SCC p.683, para 38):_ _“38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be persons aggrieved."_ _13. A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party - Sethi, J.) in Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 : (2000 AIR SCW 649 : AIR 2000 SC 988 : 2000_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 68 :- _Cri LJ 1473) after making a survey of the later decisions held thus (para 17 of AIR, Cri LJ) :_ _"17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India (1982) 3 SCC 235 : (AIR 1982 SC 1473 : 1982 Lab IC 1646) it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : (AIR 1984 SC 802 : 1984 Lab IC 560) and State of H. P. v. A Parent of a Student of Medical College, (1985) 3 SCC 169 : (AIR 1985 SC 910) on the right to approach the Court in the realm of public interest litigation. In Bangalore Medical Trust v. B. S. Muddappa (1991) 4 SCC 54 : (1991 AIR SCW 2082 : AIR 1991 SC 1902) the Court held that the restricted meaning of aggrieved person and the narrow outlook of a_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** ## -: 69 :- _specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of publc nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere “busybody."_ _14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground oflocus standi.If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his_ **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 70 :- _business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.”_ The above judgment of the Apex Court fully supports the contention raised by the learned counsel for the petitioners. 43. Petitioners in the Writ Petitions have come up with a case that the University and Government are acting against the statutory provisions in affiliating unaided course in aided colleges. Petitioners were themselves private unaided colleges who were granted affiliation. In the facts of the present case and especially the fact that the issue raised relate to imparting of education in different private aided and unaided colleges, we are satisfied that the challenge in **W.A. Nos.1265, 1243, 1259 & 1472 of 2013** -: 71 :- the Writ Petition could not be thrown on the ground of lack of locus. We thus proceeded to examine the contention on merits. 44. In view of the forgoing discussion we do not find any error in the judgment of the learned Single Judge dismissing all the Writ Petitions. We affirm the judgment of the learned Single Judge dismissing the Writ Petitions. All the Writ Appeals are dismissed. Parties shall suffer their costs. ## **ASHOK BHUSHAN** **ACTING CHIEF JUSTICE.** ## **A.M.SHAFFIQUE,** **JUDGE.** vsv/vgs20/9/14