Manager, Mother Arts & Science College v State of Kerala and University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** ## **WP(C).No.24790 of 2018** ## **PETITIONER:** **MANAGER, MOTHER ARTS & SCIENCE COLLEGE P.O PERUVALLUR,THRISSUR-680508.** **BY ADVS.** **SRI.K.B.GANGESH SMT.ATHIRA A.MENON SMT.SMITHA CHATHANARAMBATH SRI.AMAL S KUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM 695 001. 2 UNIVERSITY OF CALICUT TENHIPPALAM P.O, MALAPPURAM DIST-673636, REP.BY ITS REGISTRAR.** **BY ADV. G** **SRI.P.C.SASIDHARAN,SC,CALICUT UTY, SRI.JESTIN MATHEW ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.24790 of 2018 2 ## **JUDGMENT** The petitioner who is the Manager of a self financing college which conducts under graduate courses is aggrieved by the refusal on the part of the Calicut University in granting additional affiliation to it for starting Post Graduate course in Physics. 2. Petitioner had submitted Ext P1 application on 24.10.2016 for additional affiliation for starting M.Sc course in Physics. As per Exhibit P2 letter dated 11.07.2017, the University addressed the Government stating as follows: _“With reference to the above, I am forwarding herewith the list of following existing affiliated colleges in various districts under the jurisdiction of this University which have applied for starting new programmes for the academic Year 2017-18 and 2018-19, duly recommended by the University along with the extract of the minutes of the Syndicate meeting, for consideration and concurrence from the Government.”_ 3. The letter referred to the minutes of the meeting of the syndicate held on 20.06.2017, item No.2017.642. In the list annexed to the letter, the petitioner college was at serial No.1 among the Arts and Science Colleges in Thrissur district with the course recommended - MSc. Physics with the intake of ten WP(C).No.24790 of 2018 3 students. However, as per Exhibit P3 letter dated 11.12.2017 Government informed the petitioner that it does not propose to grant permission to start any courses or colleges in the self financing sector. The petitioner thereupon approached this Court filing W.P.(c) No.4713 of 2018 and this Court by Exhibit P5 judgment dated 28.02.2018 directed the Government to pass orders on the recommendation made by the University in Exhibit P2 order with respect to the sanction of new courses from the next academic year, on merits. Thereafter the University as per Exhibit P6 letter dated 12.07.2018 informed the petitioner as follows: “ _With reference to the above, this is to inform you that the syndicate has resolved not to grant affiliation for starting new courses during the academic year 2017-18 as the academic year has already been over. The application has not been rejected and hence matter of consideration of granting affiliation for the applications that are valid for the academic year 2018-19 and the norms to be observed for the same is under consideration of the Syndicate and same will be intimated to you in due course_ .” 4. Even though the Exhibit P6 letter refers to a Government letter dated 23.05.2018, the petitioner points out that the Government did not pass any orders in tune with the direction of this Court in Exhibit P5 judgment. The petitioner has filed this Writ Petition at that stage WP(C).No.24790 of 2018 4 challenging Exhibit P6 order and seeking a direction to the 2[nd] respondent University to grant additional affiliation to it to start MSc. Physics course as recommend in Exhibit P2 for the academic year 2018-19. 5. The petitioner relies on the Division Bench judgment of this Court reported in **State of Kerala V M.G.M College of Arts and Science** : 2017 (3) KHC 965 in which this Court held that Government does not have any authority to advise the University to reject the affiliation and that once the university approves that standards are met Govt's power is only to recommend proper compliance of the statutes. Therefore, it is stated that university could not have withheld the grant of affiliation on the ground stated in Exhibit P3, or in Exhibit P6. 6. The 1[st] respondent has filed a counter affidavit producing the report of the Higher Education Council submitted before Government with respect of bringing about legislation in respect of sanctioning of courses in the self financing colleges. It is stated that the view of the Government is that there is no need to grant approval to start any self financing college in the state and sanction for starting new courses in existing colleges need be granted only in institutions of excellence having grading of A+ and above and accreditation from the National Assessment and Accreditation Council constituted by UGC. It is stated that there is large scale depletion in the standards of education and there are various socio economic factors WP(C).No.24790 of 2018 5 arising out of the exorbitant fee structure in self finacning colleges on account of which the students of poor families and their parents are in debt trap as they are unable to pay off the education loans and Government has launched an education loan repayment support system. It is stated that indiscriminate sanctioning of course in self-financing sector is not conducive to the state. 7. The petitioner points out that syndicate had already recommended courses on the basis of petitioner’s application after DLIC report was received and the university addressed the Government along with the minutes of the Syndicate which recommended the course applied for by the petitioner as per Exhibit P2 letter. The affiliation was liable to be granted irrespective of the views of the Government and without waiting for permission from the Government in the light of the judgment in **State of Kerala v. M.G.M. College of Arts and Science** [2017 (3) KHC 965]. The learned standing counsel pointed out that Exhibit P1 application was submitted in the year 2016 and therefore, unless there is a valid application submitted in accordance with University statute, the claim of the petitioner cannot be considered. 8. Learned counsel for the petitioner relied on the Division Bench judgment dated 07.06.2018 in W.A.No. 955 of 2018 and connected cases in which a similar contention raised by the Kerala University was repelled. WP(C).No.24790 of 2018 6 Therefore, the learned counsel for the petitioner submits that there is no rationale in insisting a fresh application in this case when the petitioner has approached this Court by filing 2 Writ Petitions successively and even when Ext P6 letter was issued application was not rejected. 9. Heard Sri. Gangesh the learned Counsel for the petitioner, Sri. M.A. Asif, the learned Special Government Pleader and Sri. P. C. Sasidharan, the learned Standing Counsel for the University, 10. From Ext P2 letter it is clear that the syndicate had already recommended the course applied for by the petitioner.This court has in the judgment in MGM College's case held that Government has no authority to advise University not to grant affiliation. So far no legislation is also brought in as observed in that judgment to restrict the sanctioning of courses or colleges. In Ext P6 letter University informed that the application was under consideration of the syndicate for the academic year 2018-19 and the University did not choose to intimate the decision to petitioner as assured in Ext P6 letter. In that view of the matter and also in the light of the judgment in W.A.No. 955 of 2018 and connected cases University is not justified in denying affiliation on the ground that validity of application expired. In the judgment in W.A.No. 955 of 2018 and connected cases the Division Bench of this court observed as follows: _“As mentioned already, the dispute/litigation was started in the_ WP(C).No.24790 of 2018 7 _year 2015 and the proceedings are yet to reach a logical conclusion. This being the position, the applications submitted by the petitioners in the year 2015 could be considered for the purpose of granting affiliation in respect of the current year 2018-19 and the objections raised by the University with reference to the_ _**Statute 1 of Chapter 24** is held as rather technical, which need not be followed by its letters. xx.”_ In that case application was submitted in 2015. The contention that application should be in respect of the year 2018-19 was repelled and the University was directed to to pass a speaking order in respect of each of the institutions which applied for affiliation taking a pragmatic view than a pedantic one. It was also directed that the defects if any in terms of the statute shall be let known to the institutions without any delay. In this case petitioner approached this court for the second time on 23.07.2018. The respondent kept the application pending stating that it was under consideration, even after the application was recommended by the syndicate on 20.06.2017, as evident from Ext P2 letter of the University. Therefore the aforesaid judgment in W.A. 955/2017 applies on all fours and respondent University cannot insist further application on such technical grounds. Therefore Ext P3 is set aside. There shall be a direction to the 2[nd] respondent to see that orders are passed by the competent authority on WP(C).No.24790 of 2018 8 Exhibit P1 application submitted by petitioner, based on Exhibit P2 recommendation as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this judgment, so as to enable the petitioner to start the course in the academic year 2019-20 itself. SCS **Sd/P.V.ASHA JUDGE** WP(C).No.24790 of 2018 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT:P1 TRUE COPY OF APPLICATION DATED 24.10.2016 BY THE PETITIONER'S COLLEGE FOR MSC.PHYSICS COURSE TO THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF LETTER DATED 11.7.2017 ISSUED BY THE 2ND RESPONDENT UNIVERSITY TO THE 1ST RESPONDENT RECOMMENDING SANCTION OF MSC PHYSICS COURSE FOR THE COLLEGE.** - **EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 11.12.2017 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2017(3) KHC 965.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO 4713/2018 DATED 28.2.2018.** - **EXHIBIT P6 TRUE COPY OF COMMUNICATION DATED 12.7.2018 ISSUED BY THE UNIVERSITY TO THE PETITIONER.** **EXHIBIT P7 TRUE COPY OF THE SCHEDULE PUBLISHED BY THE 2ND RESPONDENT FOR CENTRALIZED ADMISSION PROCESS FOR POST GRADUATE COURSES.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE REPORT TO THE GOVERNMENT. EXHIBIT R1(b) TRUE COPY OF THE G.O.(P)No.65/2017/Fin. DATED 16.05.2017** //TRUE COPY// PA TO JUDGE