Muslim Educational Society v. State of Kerala and Others

**WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940 WP(C).No. 9103 of 2018** **PETITIONER(S) ------------** **MUSLIM EDUCATIONAL SOCIETY, STANDING COMMITTEE ON MES AIDED COLLEGES, MES CENTRAL OFFICE, IMA HALL ROAD, NADAKAVU, CALICUT, REPRESENTED BY - CORRESPONDENT AND CHAIRMAN P.H.MUHAMMED.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S)/:** **--------------** ## **1. STATE OF KERALA,** **REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR, DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695001.** **3. THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P O, MALAPPURAM DISTRICT-673635.** **4. THE VICE-CHANCELLOR, UNIVERSITY OF CALICUT, MALAPPURAM DISTRICT-673635.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER SMT.NISHA BOSE R3 & R4 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. 9103 of 2018 (K)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR STARTING OF NEW COURSES ON 31-10-2016 WITH COVERING LETTER AND CHALAN. EXHIBIT P2 TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE IST RESPONDENT WITH ANNEXURES DATED 11.7.2017. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION WITH ANNEXURES SUBMITTED BY THE PETITIONER DATED 17-8-2017.. EXHIBIT P4 TRUE COPY OF JUDGMENT IN WRIT PETITION 30470/2017 DATED 9-11-2017. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION SENT BY THE UNIVERSITY TO THE PETITIONER DATED 31-12-2017.** ## **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 19.06.2018** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** W.P.(C)No.9103 of 2018 **-----------------------------------------------** Dated this the 13[th] day of June, 2018 ## **J U D G M E N T** The petitioner, which is an institution affiliated to the Calicut Univesity, which has applied for additional affiliation for B.Sc. Fashion Technology, B.Sc., Zoology and B.Sc.Psychology, has approached this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 communication dated 31.12.2017 of the 3[rd] respondent, whereby Ext.P1 application for additional affiliation stands rejected; and a writ of mandamus commanding the 1[st] respondent to grant affiliation to the courses as applied for in Ext.P1 application and recommended by Ext.P2, within a time limit to be fixed by this Court. The petitioner has also sought for other consequential reliefs. 2. Ext.P1 application made by the petitioner for additional affiliation for B.Sc. Fashion Technology, B.Sc., Zoology and B.Sc.Psychology stands rejected vide Ext.P5 communication dated 31.12.2017 of the 3[rd] respondent. Ext.P5 reads thus: “With reference to the above, I am to inform you **t** hat your W.P.(C)No.9103 of 2018 :-2-: application for additional programmes under self-financing stream cannot be considered, based on the legal opinion received from the Standing Counsel of the University that seeking affiliation for additional programmes in the self financing stream by a private college receiving aid from the Govt and UGC cannot be granted.” 3. Ext.P5 communication is one issued by the 3[rd] respondent University pursuant to the directions contained in Ext.P4 judgment of this Court dated 09.11.2017 in W.P.(C) No.30470 of 2017, whereby the University was directed to consider the application submitted by the petitioner and pass necessary orders at the earliest possible time. Ext.P2 is a decision taken by the Syndicate of the University, which would show that, after conducting necessary inspection it was found that sufficient infrastructural facilities are available in the petitioner's institution and accordingly it was recommended for concurrence from the Government. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and also the learned Standing Counsel for Calicut University representing respondents 3 and 4. 5. A perusal of Ext.P5 communication dated 31.12.2017 ## W.P.(C)No.9103 of 2018 :-3-: would show that no reason whatsoever has been stated for rejecting Ext.P1 application made by the petitioner for additional affiliation. 6. In **Breen v. Amalgamated Engineering Union [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. 7. 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 ## W.P.(C)No.9103 of 2018 :-4-: 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 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. 8. 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 ## W.P.(C)No.9103 of 2018 :-5-: 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 ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 9. 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. 10. In **B.A. Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515]** the Apex Court after referring to W.P.(C)No.9103 of 2018 :-6-: 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 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. 11. 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 ## W.P.(C)No.9103 of 2018 :-7-: which are subject to appeal, revision or judicial review. At the 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. In the result, Ext.P5 communication dated 31.12.2017 of the 3[rd] respondent University is set aside and the said respondent is directed to issue a reasoned order on Ext.P1 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/- **JUDGE** **ANIL K.NARENDRAN JUDGE** ami/18.6.18 //True copy// P.A.to Judge