Nadakkal Service Co-operative Bank Ltd v State of Kerala; Malabar College of Advanced Studies v State of Kerala and University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** ## **WA NO. 1315 OF 2021** ## **AGAINST THE JUDGMENT WP(C) 5362/2021 OF HIGH COURT OF KERALA APPELLANT:** NADAKKAL SERVICE CO-OPERATIVE BANK LTD NO 1874 KALLUVATHUKKAL, KOLLAM 691 578 REPRESENTED BY ITS PRESIDENT. BY ADV P.C.SASIDHARAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM 691 001 3 SRI VIJAYAKUMAR ASSISTANT REGISTRAR (GENERAL) OFFICE OF THE ASSISTANT GENERAL (GENERAL), KOLLAM 691 001 ## **OTHER PRESENT:** SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** **-:2:-** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **WP(C) NO. 40766 OF 2022** ## **PETITIONER:** MALABAR COLLEGE OF ADVANCED STUDIES VENGARA, MALAPPURAM-676519, REPRESENTED BY ITS PRINCIPAL IN CHARGE. BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ KARUKAPADATH WAZIM BABU AJWIN P LALSON P.LAKSHMI AYSHA E.M. ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, EDUCATION HIGHER GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM - 673635., REPRESENTED BY ITS REGISTRAR. 3 THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM - 673835. BY ADV ADVOCATE GENERAL OFFICE KERALA **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:3:-** **==> picture [136 x 10] intentionally omitted <==** _Dated this 14[th] day of February, 2023_ ## A.Muhamed Mustaque, J. These writ appeal and writ petition are related to the same issue on a point of law whether the State Government can be compelled to grant aid to an Educational institution to start the educational programmes. 2. The writ petitioner-Malabar College of Advanced Studies is an existing aided college in Vengara, Malappuram District. The college is having affiliation with Calicut University. It appears that, based on a Government direction, the Calicut University recommended to the Government a list of colleges, where innovative interdisciplinary programmes can be started during the academic year 2020-21, 2021-22. The Calicut University had recommended Colleges, which are affiliated to it. The list shows that University recommended different Colleges in different ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:4:-** Districts to the Government for starting such programmes. The writ petitioner-college along with other Colleges in Malappuram District also has been recommended by the Calicut University. The recommendation was to start M.Com and M.A. (English) programmes in the writ petitioner's college with 15 intake each. Acting upon such recommendation, the Government sanctioned new courses in some of the colleges, which includes Government as well as the aided colleges. Name of the writ petitioner's College was not included. While, granting sanction to other colleges, it was specifically mentioned that no post creation shall be allowed for those posts until 2025 and classes should be run with guest faculty only. 3. The writ petition was filed challenging non inclusion of the writ petitioner college for aided programme. The learned Single Judge by a detailed judgment after adverting to the various decisions of the Apex Court and this Court was a firm view that the petitioner is entitled for ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:5:-** sanction/NOC from the Government for starting M.Com and M.A.(English) for the academic year 2021-22, based on the recommendation of the University. Challenging this judgment, the State has come up in W.A.No.1351/2021. 4. Pending appeal, this Court directed, as per order dated 21.11.2022, the State Government to consider the recommendation of the University and take a decision within two weeks. Thereafter, the Government by an order dated 05.12.2022, rejected the request to start new courses with Government aid, in the light of the present financial position of the State. Challenging this order, the writ petitioner College has come up with WP(C)No.40766/2022. These matters were posted together, before us. 5. We heard the learned counsel appearing for the writ petitioner-college - Smt.Vaheeda Babu and The learned Special Government PleaderSri.K.B.Ramanand. 6. According to the learned counsel for the ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:6:-** writ petitioner-college, the Government selectively had chosen few colleges for the best reason known to them, to allow them to start new courses with the aid of the Government. It is further submitted that, absolutely no reason was assigned to reject the claim for the writ petitioner college to start new programmes. It is further submitted that, College is situated in most backward area in Malappuram District, and starting a new course would benefit the poor students of that area. 7. The learned Special Government Pleader submitted that, based on the present financial position of the Government, the Government cannot accede to the request of the writ petitioner- College. It is further submitted that the writ petitioner-college, as a matter of fact, cannot compel the Government to provide aid to a college which is aspiring to start new programmes. 8. The University recommended the course perhaps taking note of the need in the locality or ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:7:-** other aspects which may require to start such programmes. Merely based on a university recommendation, no institute can compel the Government to provide aid. This is not a case, where the writ petitioner college wants to run an unaided programme. There cannot be any doubt that starting a programme in higher learning also would form part of the right to life in a larger concept of Article 21 as opined by the Division Bench of this Court in **State of Kerala v. M.G.M.College of Arts and Science** [2017 (3) KLT 779]. However, we have to note here that no institution has fundamental right to start a new course or programme with the aid of the Government. In the absence of any law or promise made by the Government, the Court cannot compel the Government to provide aid to an institute to start new programmes. The learned Single Judge adverted to many precedents in regard to the starting of courses, for granting affiliation etc., which may not have relevance on the question relating to ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:8:-** compelling the Government to provide aid to an institute, which aspire to start new programmes. The aid is provided by the Government through a contract. The Court cannot compel a Government by a writ of mandamus to enter into such contract with an institute in the absence of any other law that governing the matter. 9. Coming back to the question relating to the discrimination as alleged by the writ petitioner college, as seen from the recommendation of the University, many colleges were recommended. The petitioner can claim discrimination when all colleges, which aspire to start similar programmes, stands in the same footing. The concept of equal treatment here would presuppose excertence of obligation on the part of Government and corresponding right to claim for aid by the college. There are many parameters on which the Government may act, as seen from the Government letter dated 18.09.2022. The Government, based on a meeting, held with ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** **-:9:-** different stakeholders on 16.09.2022, narrowed down the consideration based on following factors. I) NAAC score and NIRF ranking are not insisted in colleges which in the opinion of the University have the necessary infrastructure to start 4 year and 5 year programmes. II) Proposals of Colleges of Scheduled Caste Community Trusts can also be recommended, even if unaccredited. III) The recommendation of KSHEC may also be considered by the University when recommending programmes. 10. Further, in a matter of choice to be exercised by the Government based on parameters as referred, unless there is a right to be claimed correspondingly, no one can compel a Government to start a new programme with the aid of the Government. We will have to remember, there will be many institutions, which are aspiring to start such programme with the Government aid. In the light of the discussion as above, we find, that direction of the learned Single Judge is unsustainable. We allow the appeal filed by the State. We also dismiss the writ petition filed by writ petitioner. However, we make it clear that nothing prevent the writ petitioner ## **W.A.No.1351 OF 2021 & W.P.(C)No.40766 OF 2022** ## **-:10:-** College from starting an unaided college based on the recommendation, in accordance with law. Sd/- **A.MUHAMED MUSTAQUE** **JUDGE** Sd/- **SHOBA ANNAMMA EAPEN JUDGE** TR