Sacred Heart College (Autonomous), Thevara, Kochi v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** ## **WP(C) NO. 8831 OF 2022** ## **PETITIONERS:** 1 SACRED HEART COLLEGE(AUTONOMOUS) THEVARA, KOCHI-682 013, REPRESENTED BY ITS MANAGER REV.FR POULOSE KIDANGEN. 2 PRINCIPAL, SACRED HEART COLLEGE (AUTONOMOUS), THEVARA, KOCHI-682 013, (BY ITS PRESENT PRINCIPAL REV. DR. JOSE JOHN) BY ADVS. BABY ISSAC ILLICKAL ISAAC KURUVILLA ILLIKAL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVAANNTHAPURAM-695 001. 2 PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O.KOTTAYAM-686 560. 4 VICE CHANCELLOOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, P.O. KOTTAYAM-686 560. 5 UNIVERSITY GRANTS COMMISSION (UGC), REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002. BY ADVS. SURIN GEORGE IPE SRI.S.KRISHNAMOORTHY, CGC **2** ## **WP(C) NO. 8831 OF 2022** ## **OTHER PRESENT:** SMT PARVATHY K-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 8831 OF 2022** **3** ## **C.R.** ## **JUDGMENT** Even though what are impugned in this case are certain Policy decisions of the Government, as reflected in Exts.P11 and P11(a), it is indubitable that this Court does not have to enter into the merits of the same because the Universities in Kerala are not subserviently bound by such decisions and this has been made clear repeatedly in **Vidya International Charitable Trust v. A.P.J.Abdul Kalam** **Technological University [2017 (2) KLT 1049]** and **Principal, Rajagiri College of Social** **Sciences, Kakkanad v. M.G. University and** **others [2016 (4) KHC 489]** as also in Exts.P9, P13 and P15 judgments. 2. As per the Scheme for starting a course of study in an Autonomous Colleges, **WP(C) NO. 8831 OF 2022** **4** affiliated to the Mahatma Gandhi University, the college had to approach the said University, intimating that they intend to do so which is then evaulated and sanctioned by it, based on the applicable UGC Regulations, after verifying whether the said course falls within the ambit of the prescriptions therein. 3. During such, of course, the University can seek inputs from the Government and they will be free either to concede to the starting of the course or to oppose it, as they may decide. 4. In this context, the real question is whether an omnibus Government Policy not to grant No Objection Certificate (NOC) to any course other than for 'B .Voc' (Bachelor of Vocational) can stand in the way of the University considering the proposal of the **WP(C) NO. 8831 OF 2022** **5** Autonomous Colleges. 5. I have heard Sri.Issac Kuruvila Illikal – learned counsel for the petitioners; Sri.Surin George Iype – learned Standing Counsel for the M.G. University, Sri.Krishnamoorthy – learned Standing Counsel for the UGC and Smt.Parvathy K – learned Government Pleader appearing for the official respondents. 6. I must also record that I had the benefit of hearing Sri.Kurian George Kannanthanam – learned Senior Counsel, who was available in the Court when I heard this matter, who offered great assistance, by his expertise in the field. 7. As I have said above, the genesis of the controversy in this case is the fact that the petitioner – College approached the **WP(C) NO. 8831 OF 2022** **6** University through Exts.P7 and P7(a) intimating that they desire to commence certain courses which have been approved by their concerned Boards of Study and Academic Council - bodies in which the nominees of the Government, UGC and the University were also available. They say that, however, instead of taking a decision on Exts.P7 and P7(a) by referring the courses proposed to an Expert Committee as per the imperative statutory mandate, the University has now issued Ext.P12 peremptorily rejecting it, solely for the reason that Government has issued an order, G.O.(M.S)No.456/2021/H.Edn dated 16.10.2021, to the effect that no NOC will be issued by them to any Aided College to start a Self Financing course except in the case of 'B. Voc', sanctioned as per the UGC guidelines. This **WP(C) NO. 8831 OF 2022** **7** order has been placed on record as Ext.P11 and I notice that Government has clarified it subsequently, through Ext.P11(a) dated 25.08.2021, which was necessitated on account of an order of the Hon'ble Supreme Court in certain earlier litigations - a copy of which has been produced on record as Ext.P10. 8. Sri.Issac Kuruvila Illikal – learned counsel for the petitioners, argued that the stand of the University in Ext.P12 is egregiously improper because they seem to be under the impression that they are slavishly governed by the decision of the Government and that they are incapacitated when it has taken a decision not to grant 'NOC' to commence a new course in an Aided College. The learned counsel submitted that this goes contrary to the declarations of this Court in **Vidya** **WP(C) NO. 8831 OF 2022** **8** **International Charitable Trust** ( _supra_ ) ## **Principal, Rajagiri College of Social Sciences,** **Kakkanad** ( _supra_ ) as also the various judgments produced on record in this case. He thus prayed that, either this Court quash Exts.P11 and P11(a) orders of the Government as being illegal; or, in the alternative, declare that, notwithstanding the same, the University is obligated to consider Exts.P7 & P7(a) on its merits, after referring the same to an Expert Committee, as is mandated by the MG University Act, 1985 and the Statutes thereunder. 9. In response, Sri.Surin George Iype – learned Standing Counsel for the University, submitted that Ext.P12 was issued by his client only because it is now clear that Government will not give an NOC to any of the courses suggested by the petitioner in Exts.P7 and **WP(C) NO. 8831 OF 2022** **9** P7(a). He added that, therefore, the competent Authority of the University justifiably has thought that even if the processes under the Act and the Statutes are taken forward, it would not lead to a situation where the courses can be sanctioned or approved, without the acceptance of the same by the Government. He then explained that Ex.P10 order of the Hon’ble Supreme Court, in fact, originated from certain litigations of this court and was directed against Ext.P9 judgment of a learned Division Bench. He submitted that even though the SLP was dismissed confirming Ext.P9, the submission of the State, that they will not “sanction” any Self-Financing Colleges and Aided Colleges, has been recorded. He submitted that, therefore, the University is now incapacitated from acceding to the request of the petitioners. **WP(C) NO. 8831 OF 2022** **10** 10. Sri.Krishnamurthy – learned Standing Counsel for the UGC, argued more or less in favour of the petitioners, saying that it is incumbent upon the University to have considered sanctioning of the courses mentioned in Exts.P7 and P7(a) strictly as per the Mahatma Gandhi University Act and its Statute, after verifying whether they would fall within the ambit of the UGC Regulations and Guidelines. He submitted that he does not have anything to offer on the specific controversy projected in this case, particularly as to whether Government was right in having adopted a policy as reflected in Exts.P11 and P11(a); but argued that, in spite of the same, the University is expected to act in the manner it is enjoined to do under the Statutory Scheme. 11. Smt.Parvathy.K. – learned Government **WP(C) NO. 8831 OF 2022** **11** Pleader, submitted that Government’s decision is a final one and that it has been arrived at, taking note of all germane aspects. She submitted that since this policy decision has already been recorded in Ext.P10 order of the Hon’ble Supreme Court, the University is bound to follow the same. 12. As I have said above, this Court had the advantage of hearing Sri.Kurian George Kannanthanam – learned Senior Counsel also. 13. The learned Senior Counsel explained at length the manner in which the various Statutes, Regulations and Guidelines hold the field. He pointed out that, as has been declared by this Court in _**Vidya International**_ _**Charitable Trust**_ (supra), the grant of an ‘NOC’ by the Government is not a mandatory requirement, because what is required, under **WP(C) NO. 8831 OF 2022** **12** Statute 9(7) of Chapter 23 of the Mahatma Gandhi University Statutes, 1997, is that the University “ascertain” the views of the Government before granting or refusing affiliation. The learned Senior Counsel then submitted that, certainly, under Section 118 of the Mahatma Gandhi University Act, certain powers have been vested with the University over the autonomous colleges, but that this has been spoken at length by this Court in ## _**Principal, Rajagiri College of Social Sciences,**_ _**Kakkanad**_ (supra), wherein, it has been unequivocally declared that except on the academic aspects, the University will obtain control over the functioning of an autonomous college. The learned Senior Counsel explained that, therefore, when it comes to consideration of the courses as suggested by **WP(C) NO. 8831 OF 2022** **13** the petitioners in Exts.P7 and P7(a), the University is to act strictly in terms of the declarations of this Court and cannot be allowed to travel beyond it, by insisting that they will do so only if the Government permits them. Sri.Kurian George Kannanthanam added that if such stand of the University is approved, it will ring the death knell of his statutorily protected autonomy in its functioning, particularly with respect to the “Autonomous Colleges” under it. 14. I have evaluated the afore submissions and have also gone through the various judgments referred above. 15. There can be little doubt – as is also admitted by the learned Standing Counsel for the University – that the affairs of the University are not controlled by the **WP(C) NO. 8831 OF 2022** **14** Government, as if they are its supervisory or appellate body. On the contrary, as has been declared by this Court in _**Vidya International Charitable Trust**_ (supra) and _**Principal, Rajagiri College of Social Sciences, Kakkanad**_ (supra), Universities are fully autonomous within their spheres, and all which they require is the assistance of the Government, as and when they required it, or when it is statutorily sanctioned. This is irreparable, going by Statute 9(7) of Chapter 23 of the Mahatma Gandhi University Statute, which – without room for doubt reserves prorogative to them to decide upon affiliation of a college or the sanctioning of any particular course, after ascertaining the views of the Government. The words “after ascertaining the views of the Government” have been specifically interpreted **WP(C) NO. 8831 OF 2022** **15** by this Court in _**Vidya International Charitable**_ _**Trust**_ (supra) and it is apodictic that, it means, they are not bound by such views, but may use it profitably while taking a decision on issues relating to sanctioning of courses and affiliation. 16. In the afore context, merely because the State submitted before the Hon’ble Supreme Court that they will not give 'NOC' to any Self-financing course in an Aided College, accept for the 'B.Voc' programme, it does not mean that the University cannot consider any such course. 17. To paraphrase, the policy of the Government is solely theirs, which is, however, not binding on the University, though they may advert to it for assistance in the process of their decision making. **WP(C) NO. 8831 OF 2022** **16** 18. Therefore, going by Statute 9(7) of Chapter 23 of the Mahatma Gandhi University Statute, the best this Court can assume is that the Government’s view, even if sought, will either be not given; and if given, will be to the negative. 19. The axiomatic question at this stage is, therefore, even if the Government refuses to give their opinion or offers it to the negative, the University is bound by it. 20. The answer to this question certainly can be only a “No”, going by _**Vidya International Charitable Trust**_ (supra), as also _**Principal, Rajagiri College of Social Sciences,**_ _**Kakkanad**_ (supra) as also Ext.P9 judgment of a learned Division Bench of this Court, which has been affirmed by the Hon’ble Supreme Court in Ext.P10 order. **WP(C) NO. 8831 OF 2022** **17** 21. In summation, therefore, the University is obliged to consider Exts.P7 and P7(a) request of the petitioner, as per the provisions of Chapter 9 of the Mahatma Gandhi University Act and the Statutes thereunder; but could not have issued sweeping and across-theBoard orders like Exts.P12 and P12(a), stating that they will not do it because the Government has not permitted them. In the afore circumstances and taking note of all the submissions above, I order this writ petition and quash Exts.P12 and P12(a); with a consequential direction to the University to take up Exts.P7 and P7(a) and decide upon it, in terms of the Act and the applicable UGC Regulations/Guidelines, after affording an opportunity of being heard to the official concerned of the petitioner - College; thus **WP(C) NO. 8831 OF 2022** **18** culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. I make it clear that though this Court has not considered the impact of the deeming provisions in the Mahatma Gandhi University Act, if a decision is not taken within the afore time frame, it will then be presumed that necessary concurrence has been given. For the afore purpose, I leave it to the University to seek any additional information from the College, but this will be done within a period of two weeks from the date of receipt of a copy of this judgment; in which event, same shall be furnished by them within a period of ten days thereafter. I also leave liberty to the petitioner to **WP(C) NO. 8831 OF 2022** **19** approach this Court for any clarification, including as to the impact of the deeming provisions in the Mahatma Gandhi University Act, if the afore directions are not complied with by the University within the time frame fixed above. I close this judgment recording the deepest appreciation for Sri.Kurian George Kannanthanam – learned Senior Counsel, who made delivery of the judgment easier than it could have been. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** rp/SAS **WP(C) NO. 8831 OF 2022** **20** ## **APPENDIX OF WP(C) 8831/2022** |PETITIONERS' EXHIBITS|| |---|---| |Exhibit P1|PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE| ||NATIONAL COMMISSION FOR MINORITY EDUCATIONAL| ||INSTITUTIONS DATED 2.8.2010| |Exhibit P2|PHOTOCOPY OF THE COMMUNICATION OF THE 5TH| ||RESPONDENT GRANTING AUTONOMOUS STATUS TO THE| ||COLLEGE DATED 19.6.2014| |Exhibit P3|PHOTOCOPY OF THE AMENDMENT IN RESPECT OF THE| ||CHAPTER IX OF THE MAHATMA GANDHI UNIVERSITY| ||ACT, 1985 (RELEVANT PAGES)| |Exhibit P4|PHOTOCOPY OF THE UGC GUIDELINES FOR| ||AUTONOMOUS COLLEGES DURING THE XII PLAN| ||PERIOD| |Exhibit P5|PHOTOCOPY OF THE UGC GUIDELINES FOR| ||AUTONOMOUS COLLEGES 2017| |Exhibit P6|PHOTOCOPY OF THE UGC REGULATIONS 2018| |Exhibit P7|PHOTOCOPY OF THE SAID LETTE5 DATED 21.10.2021| ||OF THE 2ND PETITIONER TO THE 3RDD RESPONDENT| |Exhibit P7(a)|PHOTOCOPY OF THE COVERING LETTER DATED| ||17.6.2021 OF THE 2ND PETITIONER TO THE 3RD| ||RESPONDENT| |Exhibit P8|PHOTOCOPY OF THE COMMUNICATION FROM THE 3RD| ||RESPONDENT DATED 13.11.2021 WITH ENGLISH| ||TRANSLATION| |Exhibit P9|PHOTOCOPY OF THE JUDGMENT OF THE DIVISION| ||BENCH OF THIS HON'BLE COURT IN W.A NO| ||1265/2013 DATED 26.9.2014| |Exhibit P10|PHOTOCOPY OF THE JUDGMENT DATED 13.7.2021 OF| ||THE HON'BLE SUPREME COURT OF INDIA IN SPECIAL| **WP(C) NO. 8831 OF 2022** **21** ||LEAVE TO APPEAL (C) NO 5290/2015| |---|---| |Exhibit P11|PHOTOCOPY OF THE GO(MS) NO 456/2021/H.EDN| ||DATED 16.10.2021| |Exhibit P11(A)|PHOTOCOPY OF THE GO(MS) NO 347/2021/H.EDN| ||DATED 25.8.2021 WITH ENGLISH TRANSLATION| |Exhibit P12|PHOTOCOPY OF THE ORDER OF THE 3RD RESPONDENT| ||DATED 2.3.2022 WITH ENGLISH TRANSLATION| |Exhibit P12(a)|PHOTOCOPY OF THE ORDER OF THE 3RD RESPONDENT| ||DATED 14.1.2022 REJECTING EXT P7 (A) WITH| ||ENGLISH TRANSLATION| |Exhibit P13|PHOTOCOPY OF THE JUDGMENT DATED 19.6.2020 IN| ||WPC 33822/2019| |Exhibit P14|PHOTOCOPY OF THE LETTER OF THE UGC DATED| ||2.4.2018| |Exhibit P15|PHOTOCOPY OF THE JUDGMENT IN WA NO 2450/2019| ||DATED 11.9.2020| |Exhibit P16|PHOTOCOPY OF THE JUDGMENT REPORTED IN THE| ||PRINCIPAL RAJAGIRI COLLEGE OF SOCIAL SCIENCES| ||V M.G.UNIVERSITY & ORS 2016(4) KHC 489| |Exhibit P17|PHOTOCOPY OF THE JUDGMENT OF THE DIVISION| ||BENCH OF THIS HON'BLE COURT IN WA NO| ||1708/2016 DATED 8.9.2016| |Exhibit P18|PHOTOCOPY OF THE JUDGMENT IN WPC NO| ||20279/2017 DATED 29.11.2019 AND CONNECTED| ||CASES| |Exhibit P18(a)|PHOTOCOPY OF THE FEES RECEIPTS DATED| ||27.10.2021 ISSUED BY THE 3RD RESPONDENT| |Exhibit P18(b)|PHOTOCOPY OF THE E-MAIL FORWARDED TO THE 3RD| ||RESPONDENT BY THE 2ND PETITIONER DATED| **WP(C) NO. 8831 OF 2022** **22** 22.6.2021 Exhibit P19 PHOTOCOPY OF THE RELEVANT PAGES OF THE NIRF GUIDELINES Exhibit P20 PHOTOCOPY OF THE RELEVANT PAGES OF THE MANUAL FOR AUTONOMOUS COLLEGES ISSUED BY THE NAAC Exhibit P21 PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO 16789/2021 DATED 7.1.2022