Sree Narayana Educational and Charitable Society, Kollengode v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** ## **WP(C) NO. 2616 OF 2019** ## **PETITIONER/S:** SREE NARAYANA EDUCATIONAL AND CHARITABLE SOCIETY, KOLLENGODE HAVING ITS OFFICE AT NO.208 H/VI, AYYAPPANKAVU, VALIYANGADI, KOLLENGODE POST, PALAKKAD, REPRESENTED BY ITS SECRETARY. BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. 3 REGIONAL DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, REGIONAL DIRECTORATE OF COLLEGIATE EDUCATION, GOVERNMENT TRAINING COLLEGE COMPOUND, PALACE ROAD, THRISSUR-680020. 4 THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, TENHIPALAM, MALAPPURAM-673636. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** GP SRI B HARISH KUMAR , SRI P C SASIDHARAN SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2616 OF 2019** **2** ## **JUDGMENT** By Ext.P4 order of the Government dated 8[th] October 2018, the request of the petitioner Society to start a new private self financing college was rejected. 2. Petitioner, Sree Narayana Educational and Charitable Society was set up in the year 1998 with the aim of engaging in educational, charitable and social welfare activities. On 21.11.2016, an application on behalf of the petitioner was submitted to the 4[th] respondent, the University of Calicut seeking permission to start a new college, Ext.P1. University vide letter dated 26.8.2017 forwarded the list of colleges along with the copy of the minutes of the syndicate held on 20.6.2017 to obtain NOC from the Government before the colleges could be allowed to commence intake of students vide Ext.P2. 3. On 17.8.2017 officers of the third respondent, ie., Regional Deputy Director of Collegiate Education inspected the college and as per the information it was reported that the **WP(C) NO. 2616 OF 2019** **3** college had the entire necessary infrastructure. In the absence of any progress, the petitioner approached this Court vide W.P.(C) No.25181/2018; this Court vide order dated 8.10.2018, Ext.P4 directed the Government to take a decision with regard to NOC. 4. Learned counsel appearing on behalf of the petitioner submits that vide Ext.P14 respondent, Government have erroneously rejected the permission to start private self financing colleges dehore of the fact the University had vide Ext.P2 not only approved but recommended that the new college could be set up. This Court in _**Global Institute of Architecture vs. Secretary Higher Education Department reported in 2016 (4) 560**_ held that once approval has been granted by the technical body and affiliation given by the University, there was no scope for any further objection or disapproval by the State Government. 5. On the contrary, learned counsel appearing on behalf of the respondent opposed the aforementioned prayer and submitted that the impugned order Ext.P4 rejecting the issuance **WP(C) NO. 2616 OF 2019** **4** of NOC by the Government was based upon a report Ext.R1(b) whereby guidelines on education loan repayment support scheme were laid out. It was found that in the revised project of 2016-17 and 2017-18, Government decided to help the students hailing from low to middle income group who had availed education loans from the banks and other financial institutions but was struggling to repay the loan owing to the factors such as unemployment or low pay packages. 6. Government had undertaken to bear 50% of principal outstanding subject to the maximum of Rs.2,40,000/- in cases where Banks were willing to settle the loan account through a special package scheme of banks. As per the study, it revealed that the vacancies which remained unfilled from academic year 2013-14 to 2017-18 were tremendous and it is on that account, it was found unfeasible for issuance of no objection certificate. The aforementioned study was not only at under Graduate Level but Post Graduate as well. In support of the contentions, relied judgment of the Supreme Court in _**Jawaharlal Nehru**_ **WP(C) NO. 2616 OF 2019** **5** ## _**Technological University Registrar v. Sangam Laxmi Bai**_ _**Vidyapeet & Ors. (2019) 2 LW 514**_ . Similar controversy arose, the High Court considered the rejection of issuance of NOC by the University and its approval by the Government on the ground that it was upon the institute whether setting up of the self financing college would be economically viable as no educational agency would take up the venture until and unless there was some scope of not only sustainability but also achieved the aims and objects as set out in the memorandum for seeking registration of the society and urged this Court for dismissal of the writ petition. It was also contended that the judgment referred by the counsel for the petitioner was of 2016 whereas the Supreme Court judgment is of 2018 decided on 29.10.2018. 7. I have heard the learned counsel for the parties and appraised the paper book. The Government while rejecting the no objection certificate assigned following reasonings as recorded in Ext.P4. _In WP(C)No.25181/2018, the Hon'ble High Court has directed the State Government to take a decision at the earliest in the_ **WP(C) NO. 2616 OF 2019** **6** _matter of granting NOC to Sree Narayana Educational & Charitable Society, Kollengode, Palakkad to start a new selffinancing college._ _Government have examined the matter in in the light of Plan for State Higher Education with Special Reference to Arts & Science Colleges in Kerala' prepared by Kerala State Higher Educational In Kerala, all the Arts Science colleges are affiliated to mainly Kerala, Mahatma Gandhi, Calicut and Kannur Universities. As on March 2018, there are 677 Arts & Science colleges consisting of Government, Government aided & self-financing colleges in affiliated to the said Universities, according to the report. The fastest growing stream in Arts and Science College category has been the self-financing colleges. It increased from 354 in 2013-14 to 458 in 2017-18. This has resulted in an increase in the number of Arts and Science colleges in the universities from 554 in 2013-14 to 675 in 201718._ _In the case of University, the total number of Arts and Science colleges increased from 212 to 262 during the period from 2013-14 to 2017-18. The increase in the total number of colleges is mainly due to the increase in the number of selffinancing colleges from 139 in 2013-14 to 180 in 2017-18. Under the Calicut University, the total number of seats at the UG level in the self-financing stream was 41513 during 201718. The unfilled seats at the level in the self financing stream was 9520 in 2017-18. A picture is at the PG also. The total seats at the PG level in the self-financing stream increased from 1716 in 2013-14 to 3710 in 2017-18. The number of unfilled seats also increased steadily from 477 in 2013-14 to 1864 in_ _The number of seats in the self-financing colleges is substantial. The rising trend of seats in these is reflective of the falling standards and quality of teaching-learning in these institutions. It is seen that, in spite of the availability of large number of vacant seats in the private colleges/courses, the number of students who have opted for private study has increased very substantially. The number of students aspiring for higher education have now parallel opportunities offered by the Universities in the State for enabling education through private registration or distance mode of education._ **WP(C) NO. 2616 OF 2019** **7** _For Government institutions, the State has been providing necessary funding in the higher education sector from the public resources for improving and developing the infrastructural facilities. These colleges provide quality education, and merit is the sole criterion for selection and admission. The maintenance of quality resulted in an increase in the flow of aspiring students to these colleges. It is therefore an undisputed fact that, unfilled seats in these groups are very minimal._ _Hence it would not be in the interests of the State, society, students and the public to allow any more private self-financing colleges to be established. Considering all these facts, application of Sree Narayana Educational & Society, Kollengode, Palakkad for starting a new college in private selffinancing stream is hereby rejected._ _Thus the direction of the Hon'ble High Court in WP(C)No.25181/2018 to take a decision on the request of the petitioner, is complied with._ 8. Though at the first glance, it looked that the decision of the Government amounted to violation of the fundamental right ie., under 1(g) of the constitution of India as it cannot regulate the affairs of the college, particularly, when the University had granted no objection for setting up of a self financing institutions, similar observation were given by the High Court of Telangana in _**Jawaharlal Nehru Technological University Registrar**_ (supra) whereby the High court relying upon the following observations, allowed the writ petition. The observations have **WP(C) NO. 2616 OF 2019** **8** been recorded in Para 8 of the judgment of the Supreme Court which reads as under: 8. The High Court by the impugned judgment and order had allowed the writ application. It has observed that grant of NOC will not enable an institution to start a course. They have several other hurdles to be cleared for starting D. Pharma. The High Court has held that Regulations 5.2, 5.3 and 6 of the 2017 Regulations are valid. The vires of the regulations has been upheld. However, the High Court held that policy decision taken by the Government not to allow new courses to be started is not in terms of section 20 of the Act of 1982 as the provision does not vest power upon the Government to declare a holiday on the that a lot of seats are going vacant. The High Court has observed that in case the seats are going vacant educational institutions will automatically shut down courses for which there is no demand. Unless starting of a course or running of an existing course is economically viable, no educational agency would take up the venture. That is the concern of the educational agency and not of the Government or of the University. where The High Court has further observed that uneducated unemployed may find a course r energies can be channelized and it is better to have educated unemployed rather than their to have breed of uneducated unemployed. The perspective plan prepared by the Government has also been considered. It has been observed that seats remaining vacant cannot be the sole criterion for refusal of NOC. The enrolment of students in Pharma D. has registered a marginal over the years. The University has been directed to grant NOC. Thereafter, it will be open increase the and PCI to examine the application of the petitioner for D. Pharma course and thereafter it will be open to the University to examine with reference to its own Statutes as to whether petitioner may be granted affiliation or not. Aggrieved by the same, the appeal has been preferred. ## 9. Negating the aforementioned argument relied upon the various facts in para 21; supreme court held as under: **WP(C) NO. 2616 OF 2019** **9** _The decision taken by the State Government impose moratorium as apparent from facts reflected perspective based on survey and supported by the data. Considering the fact that seats are abegging. Even 2017-18 the Pharmacy course, data has been in the SLP that among 56 colleges affiliated University, 30 were the city of and out of 1630 seats, 173 had remained vacant. Thus, apparent that large institution. the circumstances, the observation of the High Court that was for the institution worry and consider viability and for the University or State Government take same into consideration, completely flimsy and impermissible reason employed. The mushroom growth of educational institutions cannot be permitted. The observation made by the High Court that unfit institution will automatically shut down the courses not the judicious approach warranted such matters. is not only that the requirement of the locality should exist but has be ensured that only the standard educational institutions should come up and once they come up, they should be able to survive. A large number of Institutions are not be opened up die unnatural death on the principle of survival of the fittest and due to nonavailability of teachers/students. Standard of education cannot be compromised sacrificed by permitting institutions come up reckless manner without there being any requirement for them at particular place. There need to strengthen the existing system of education not make weak by further complicating the issues by wholly unwarranted approach as the one adopted by the High Court. cannot be left at the choice of the institution to open the course whenever or wherever they desire. The High Court has also erred in observing that seats remaining vacant could not be the relevant criteria for refusal of NOC._ It is not a case of withdrawal of provisional affiliation or decline of affiliation on account of certain short comings. The Government had already dedicated a certain amount in the budget for the purpose of rescuing the parents who had taken a **WP(C) NO. 2616 OF 2019** **10** substantial loan for education of their wards but it was difficult to repay. Keeping in view the unemployment and the number of seats falling vacant, this Court cannot form an opinion by exercising the power of judicial review under Article 226 of the constitution of India. For the reasons aforementioned, I do not find any justification for setting aside Ext.P4. The writ petition is accordingly dismissed. **SD/-** sab **AMIT RAWAL JUDGE** **WP(C) NO. 2616 OF 2019** **11** ## **APPENDIX OF WP(C) 2616/2019** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED NOVEMBER 21, 2016 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE LETTER DATED AUGUST 26, 2017 ISSUED BY THE 4TH RESPONDENT ALONG WITH THE RELEVANT PAGES OF THE COPY OF THE MINUTES OF THE SYNDICATE HELD ON JUNE 20, 2017 ISSUED FROM THE OFFICE OF THE THIRD RESPONDENT. EXHIBIT P3 A TRUE COPY OF GOVERNMENT ORDER DATED OCTOBER 8, 2018. RESPONDENT EXHIBITS R1(a) TRUE COPY OF THE REPORT TO THE GOVERNMENT R1(b) TRUE COPY OF THE G.O(P) NO.65/2017/FIN DATED 16.5.2017