Mohammed Suhail v. University of Calicut & others

**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. 8892 of 2018** ## **PETITIONER :** **MOHAMMED SUHAIL, S/O.IBRAHIM, PRINCIPAL, JAMIYA ISLAMIYA ARTS & SCIENCE COLLEGE, JAMIYA NAGAR, THRIKKALANGODE P.O., MANJERI, MALAPPURAM DISTRICT.** **BY ADV.SRI.GEORGE MECHERIL** ## **RESPONDENTS :** **1. UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS REGISTRAR-673635.** **2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN-673635.** **3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1 & R2 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY R3 BY GOVERNMENT PLEADER SRI.B.UNNIRKSIHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 8892 of 2018 (J)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE REGISTRATION CERTIFICATE NO.786/1991 OF THE DISTRICT REGISTRAR. EXHIBIT P2- TRUE COPY OF GOVERNMENT ORDER G.O.(MS)NO.36/2018/H.EDN. DATED 30/01/2018. EXHIBIT P3- TRUE COPY OF THE AFFILIATION GRANTED BY THE UNIVERSITY BY LETTER DATED 03/04/2015. EXHIBIT P4- TRUE COPY OF THE CONTINUATION OF PROVISIONAL AFFILIATION ORDER DATED 18/03/2017 OF THE UNIVERSITY. EXHIBIT P5- TRUE COPY OF THE APPLICATION FOR AFFILIATION. EXHIBIT P6- TRUE COPY OF THE RELEVANT PORTION OF THE RECOMMENDATION FORWARDED TO THE GOVERNMENT BY THE UNIVERSITY. EXHIBIT P7- TRUE COPY OF THE ADMINISTRATIVE SANCTION OR NOC FOR STARTING NEW SELF FINANCING COLLEGE OR COURSES IN THE STATE VIDE ORDER G.O.NO.178/2016/H.EDN. DATED 22/08/2016. EXHIBIT P8- A TRUE COPY OF THE COMMON JUDGMENT DATED 21/12/2016 IN W.P.(C)NO.29054/2016 AND CONNECTED CASES. EXHIBIT P9- TRUE COPY OF THE JUDGMENT DATED 05/07/2017 IN W.A.NO.1020/2017 OF THIS HONOURABLE COURT.** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** **18.6.2018** ## **ANIL K.NARENDRAN, J.** ## **----------------------------------------------W.P.(C)No.8892 of 2018 -----------------------------------------------** Dated this the 13[th] day of June, 2018 ## **J U D G M E N T** The petitioner, who is the Principal of Jamiya Islamiya Arts and Science College, Manjeri, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to consider Ext.P5 application for additional affiliation for B.Com Co-operation and BBA and to grant provisional affiliation during 2017-18, so as to enable the petitioner to start classes during 2018-19. The petitioner has also sought for other consequential reliefs. 2. On 5.4.2018, when this writ petition came up for consideration, this Court recorded the submission made by the learned Standing Counsel for the 1[st] respondent University that, the application made by the petitioner for additional affiliation is under process. On 11.4.2018, the learned counsel for the petitioner submitted that, despite the aforesaid submission made by the learned Standing Counsel for the University on 5.4.2018, the University is not processing the application for additional W.P.(C)No.8892 of 2018 :-2-: affiliation. The learned Standing Counsel sought time to get instructions and the writ petition was posted to 24.4.2018. On that day, this Court passed an interim order directing the 1[st] respondent University to consider Ext.P5 application made by the petitioner for additional affiliation, within three weeks. 3. On 6.6.2018, when this writ petition came up for further consideration, it was submitted by the learned Standing Counsel for the 1[st] respondent University that, the University has already issued a communication to the Principal of the College, informing that the application for additional affiliation cannot be considered. Today, when this writ petition is taken up for consideration along with W.P.(C)Nos.10806 of 2018 and 17414 of 2018, a copy of communication dated 14.5.2018 of the 1[st] 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.P5 application cannot be considered. Similar communications dated 14.5.2018 have been issued in the case of the petitioners in W.P.(C)Nos.10806 of 2018 and 17414 of 2018 as well. W.P.(C)No.8892 of 2018 :-3-: 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the University representing respondents 1 and 2 and also the learned Senior Government Pleader for the 3[rd] respondent. 5. By a stereotype communication dated 14.5.2018 of the of 1[st] respondent University, the Principal of the College is informed that Ext.P5 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 [1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, W.P.(C)No.8892 of 2018 :-4-: 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 Election Commissioner [(1978) 1 SCC 405]** that, when a W.P.(C)No.8892 of 2018 :-5-: 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 for the order made, in other words, a speaking out. The W.P.(C)No.8892 of 2018 :-6-: ‘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 concomitant of the principles of natural justice. If a statutory or W.P.(C)No.8892 of 2018 :-7-: 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 same time, it is not the requirement that, the reasons should be W.P.(C)No.8892 of 2018 :-8-: 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 directing the 1[st] respondent University to issue a W.P.(C)No.8892 of 2018 :-9-: reasoned order on Ext.P5 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. Sd/- **ANIL K.NARENDRAN JUDGE** ami/13.6.18 //True copy// P.A.to Judge