MANAGER, ST. JOSEPH'S EDUCATIONAL AND CHARITABLE TRUST PAVARATTY, THRISSUR-680507 v. STATE OF KERALA & ORS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **WP(C).No. 10806 of 2018** ## **PETITIONER(S)** ## **------------** **MANAGER, ST. JOSEPH'S EDUCATIONAL AND CHARITABLE TRUST PAVARATTY, THRISSUR-680507, (BY ITS PRESENT MANAGER FR.JOSE CHITTILAPPILLY CMI).** **BY ADVS.SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL** ## **RESPONDENT(S):** ## **-------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **4. THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENJIPPALAM, MALAPPURAM DISTRICT-673635.** **5. VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENJIPPALAM, MALAPPURAM DISTRICT-673635.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R4 & R5 BY SRI.P.C.SASIDHARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 10806 of 2018 (A)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **------------------------** **EXHIBIT P1 PHOTOCOPY OF THE COVERING LETTER FORWARDING THE APPLICATIONS FOR AFFILIATION DATED 27.10.2017. EXHIBIT P2 PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 26.10.2017. EXHIBIT P3 PHOTOCOPY OF THE COMMUNICATION RECEIVED FROM THE 3RD RESPONDENT DATED 31.08.2017. EXHIBIT P4 PHOTOCOPY OF THE SAID ORDER DATED 17.06.2017 OF THE 4TH RESPONDENT. EXHIBIT P5 PHOTOCOPY OF THE JUDGMENT OF THE DIVISION BENCH IN STATE OF KERALA V. M.G.M. COLLEGE OF ARTS AND SCIENCE, TVM AND ANOTHER 2017 (3) KHC 965(DB).** **RESPONDENT(S)'EXHIBITS - NIL -----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 18.06.2018** ## **ANIL K.NARENDRAN, J.** ## **----------------------------------------------W.P.(C)No.10806 of 2018 -----------------------------------------------** Dated this the 13[th] day of June, 2018 ## **J U D G M E N T** The petitioner, who is the Manager of St.Joseph's Educational & Charitable Trust, Pavaratty, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 31.8.2017 of the 3[rd] respondent and a writ of mandamus commanding the 4[th] respondent to grant affiliation to B.Com Professional, B.Com Computer Application, B.Com Banking & Insurance and BBA Marketing courses applied for in Ext.P2 application, so as to enable the petitioner to commence classes in the academic year 2018-19. The petitioner has also sought for other consequential reliefs. 2. On 6.4.2018, when this writ petition came up for consideration, this Court has recorded the submission made by the learned Government Pleader that, the 1[st] respondent proposes to recall Ext.P3 order, whereby the request made by the W.P.(C)No.10806 of 2018 :-2-: petitioner for permission stands rejected on policy consideration and to take an appropriate decision considering the merits of the claim made by the petitioner. The submission made by the learned Standing Counsel for the 4[th] respondent University that the application made by the petitioner for additional affiliation is under process of the University was also recorded. 3. On 6.6.2018, when this writ petition came up for further consideration, it was submitted by the learned Standing Counsel for the 4[th] respondent University that, the University has already issued a communication to the Principal of the College, informing that the application made for additional affiliation cannot be considered. Today, when this writ petition is taken up for consideration along with W.P.(C)Nos.8892 of 2018 and 17414 of 2018, a copy of communication dated 14.5.2018 of the 4[th] respondent University addressed to the Principal of the College, is made available for the perusal of this Court, whereby the petitioner is informed that Ext.P2 application cannot be considered. Similar communications dated 14.5.2018 have been issued in the case of the petitioners in W.P.(C)Nos.8892 of 2018 W.P.(C)No.10806 of 2018 :-3-: and 17414 of 2018 as well. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 3, and also the learned Standing Counsel for the 4[th] respondent University representing respondents 4 and 5. 5. By a stereotype communication dated 14.5.2018 of the of the 4[th] respondent University, the Principal of the College is informed that Ext.P2 application cannot be considered. 6. In **Santu Thomas v. Joint Regional Transport Officer, Vaikom [2018 (1) KHC 437]** , in the context of Section 19 of the Motor Vehicles Act, 1988, this Court held that, the proceedings issued by the licensing authority on a printed/ cyclostyled proforma with some insertions here or there and by filling the blanks, whereby the petitioner therein is disqualified under sub-section (1) of Section 19 of the Act from holding driving licence for a period of one year, shows a mechanical exercise of power by the licensing authority and as such, the same is vitiated by total non-application of mind. 7. In **Breen v. Amalgamated Engineering Union** W.P.(C)No.10806 of 2018 :-4-: **[1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision - taker to the controversy in question and the decision or conclusion arrived at. ## 8. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief** W.P.(C)No.10806 of 2018 :-5-: **Election Commissioner [(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 9. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4** **SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons W.P.(C)No.10806 of 2018 :-6-: for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 10. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India [(** 1992) 4 SCC 605] that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 11. In **B.A. Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515]** the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is antithesis to arbitrariness in action and is a necessary W.P.(C)No.10806 of 2018 :-7-: concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them. 12. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the W.P.(C)No.10806 of 2018 :-8-: same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 13. By the judgment dated 7.6.2018 in W.P.(C)No.17415 of 2018, the order issued by the 1[st] respondent University, rejecting the application submitted by the petitioner therein for additional affiliation to new courses in the respective colleges, even without stating any reasons, has already been set aside and the 1[st] respondent University has been directed to issue a reasoned order on the application submitted by the petitioner therein, strictly in accordance with law and communicate the same to the petitioner without delay. In such circumstances, this writ petition is disposed of leaving open the legal and factual contentions raised by the petitioner, by W.P.(C)No.10806 of 2018 :-9-: directing the 4[th] respondent University to issue a reasoned order on Ext.P2 application made by the petitioner, strictly in accordance with law and communicate the same to the petitioner, within a period of 10 days from the date of receipt of a certified copy of this judgment. On 6.4.2018, this Court has recorded the submission made by the learned Government Pleader that, the 1[st] respondent proposes to recall Ext.P3 order, whereby the request made by the petitioner for permission stands rejected on policy consideration and to take an appropriate decision considering the merits of the claim made by the petitioner. In such circumstances, the 1[st] respondent shall communicate the decision taken on the request made by the petitioner for permission to start additional courses, within a period of 10 days from the date of receipt of a certified copy of this judgment. Sd/- **JUDGE** ami/13.6.18 //True copy// P.A.to judge