St. Gregorios Memorial St. Johns Educational and Social Trust & St. Johns College v. Vice Chancellor, Mahatma Gandhi University & Registrar, Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **W.P.(C)No.18445 OF 2020(E)** ## **PETITIONERS:** **1 ST. GREGORIOUS MEMORIAL ST.JOHNS EDUCATIONAL AND SOCIAL TRUST ST. JOHNS EDUCATIONAL AND SOCIAL TRUST REPRESENTED BY ITS CHAIRMAN, CHERIAN JOHN, AGED 71 YEARS, S/O. CHERIAN, PRIYADARSHINI HILLS, PRAKKANAM P.O., PATHANAMTHITTA-689543. 2 ST. JOHNS COLLEGE REPRESENTED BY ITS DIRECTOR, THOMAS K. SAMUEL, AGED 38 YEARS, S/O. SAMUEL THOMAS, PRIYADARSHINI HILLS, PRAKKANAM P.O., PATHANAMTHITTA-689543. BY ADVS. SRI.R.T.PRADEEP SRI.K.C.HARISH** ## **RESPONDENTS:** |**1**|**VICE CHANCELLOR,**| |---|---| ||**MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSHINI HILLS P.O., KOTTAYAM-686560.**| |**2**|**MAHATMA GANDHI UNIVERSITY**| ||**REPRESENTED BY ITS REGISTRAR,**| ||**PRIYADARSHINI HILLS P.O., KOTTAYAM-686560.**| ||**R2 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY**| |**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**|| |**20-10-2020,**|**THE COURT ON 21-10-2020 DELIVERED THE FOLLOWING:**| W.P.(C)No.18445 of 2020 -2- ## **JUDGMENT** The 1[st] petitioner Trust is the educational agency of the 2[nd] petitioner College, namely, St.Johns College, a self-financing Arts and Science College affiliated to the 2[nd] respondent Mahatma Gandhi University. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P13 order dated 20.03.2020 issued by the 2[nd] respondent University, whereby the affiliation granted to the College is withdrawn on the ground that the College did not obtain prior approval of the University under Statute 15, Chapter 23 of the Mahatma Gandhi University First Statutes, 1997 in order to suspend instruction in MBA programme, for the academic year 2017-18, after remitting the prescribed fee, and the College did not resume the course after the said academic year, i.e., during 2018-19 and 2019-20, after intimating the Syndicate of the University. The petitioners have also sought for a writ of mandamus commanding the respondents to grant continuation of affiliation for B.Com (Computer Application) and fresh affiliation for B.Com (Finance and Taxation) for the academic year 2020-21, within a time limit to be fixed by this Court. 2. On 09.09.2020, when this writ petition came up for W.P.(C)No.18445 of 2020 -3- admission, the learned Standing Counsel for Mahatma Gandhi University sought time to get instructions and file statement. 3. A statement has been filed on behalf of the 2[nd] respondent, opposing the reliefs sought for in this writ petition. On 24.09.2020, along with a memo filed by the learned Standing Counsel, a copy of show-cause notice dated 12.09.2018 issued by the 2[nd] respondent is placed on record, which is Ref. No.7 in Ext.P13 order. 4. On 06.10.2020, along with I.A.Nos.1 and 2 of 2020, the petitioners have placed on record Ext.P14 representation dated 18.05.2018 submitted before the Syndicate of the University seeking affiliation for MBA programme for the academic year 2018-19 and also permission to start B.Com (Computer Application), as a special case. In Ext.P14 representation the petitioners have stated that they have already submitted an application before the 1[st] respondent Vice Chancellor on 02.05.2018, along with supporting documents, seeking extension of affiliation for the academic year 2018-19. The document marked as Ext.P15 is a copy of the order dated 10.10.2019 of the 2[nd] respondent University, whereby the the petitioners were W.P.(C)No.18445 of 2020 -4- informed that, after considering Ext.P12 explanation dated 29.06.2018 offered to the show-cause notice dated 12.09.2018, the Syndicate of the University in its meeting held on 16.11.2019 had taken a decision to direct the Principal and the Manager of the College to appear before the Affiliation Committee, for personal hearing. Ref. No.1 in Ext.P15 order is Ext.P14 representation dated 18.05.2018 submitted before the Syndicate seeking affiliation for MBA programme for the academic year 2018-19 and also permission to start B.Com (Computer Application), as a special case. Pursuant to Ext.P15 order, the Manager and the Principal of the College were heard by the Affiliation Committee, on 06.02.2020. The document marked as Ext.P16 is the representation dated nil submitted by the 1[st] petitioner before the Vice Chancellor seeking extension of affiliation to the College for the academic year 2020-21, in order to conduct B.Com (Computer Application) and B.Com (Finance and Taxation). 5. On 08.10.2010, a statement on behalf of the 2[nd] respondent has been filed in I.A.No.1 of 2020. 6. On 16.10.2020, the petitioners have filed I.A.Nos.3 and 4 of 2020, producing therewith Ext.P17 application dated W.P.(C)No.18445 of 2020 -5- 14.10.2020 submitted before the Registrar of the University seeking extension of affiliation for B.Com (Computer Application) for the academic year 2020-21. As stated in Ext.P17, the College was having provisional affiliation for B.Com (Computer Application) till the academic year 2011-12. 7. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondents. 8. On the strength of the approval granted by the All India Council for Teacher Education (for brevity, 'the AICTE') the 2[nd] respondent University granted provisional affiliation to the 2[nd] petitioner College for MBA programme, for the academic year 2003-04. By Ext.P2 order dated 23.03.2005, the University granted provisional affiliation to B.Com (Travel and Tourism) Vocational Model-II and Master of Tourism Administration (MTA), for the academic year 2004-05, subject to the condition that admissions shall be made only from the academic year 2005-06 onwards. As there was no students for B.Com (Travel and Tourism) and MTA, the College was permitted to switch over to B.Com (Computer Application), from the academic year 2007-08. The College was having provisional affiliation for MBA programme and W.P.(C)No.18445 of 2020 -6- also for B.Com (Computer Application) till the academic year 2011-12. 9. Seeking renewal of provisional affiliation for the year 2013-14, the Administrator of the College filed W.P.(C)No.1309 of 2014 before this Court. The learned Standing Counsel for the University pointed out that the College is yet to cure certain deficiencies pointed out, in order to comply with the norms prescribed by the AICTE and also the University Grants Commission (UGC). By Ext.P6 judgment dated 10.02.2014 that writ petition was disposed of by directing the University to consider the extension of provisional affiliation, on the petitioner curing the defects and approaching the University. Alleging delay on the part of the University in considering the request for extension of provisional affiliation, the Administrator of the College filed W.P.(C)No.14899 of 2014. The learned Standing Counsel for the University pointed out that on the basis of the report of the Inspection Commission constituted for verifying the authenticity of the compliance report submitted by the College, an appropriate decision shall be taken on the request for grant of extension of provisional affiliation for the academic years 2012-13 and 2013- W.P.(C)No.18445 of 2020 -7- 14. By Ext.P7 judgment that writ petition was disposed of by directing the University to conduct an inspection to complete the formalities and pass necessary orders on the application for extension of affiliation, taking into consideration the fact that the AICTE has already granted approval for MBA programme, vide order dated 19.03.2013. Alleging inaction on the part of the University in granting affiliation for conducting MBA programme, the Administrator of the College filed W.P.(C)No.11679 of 2015. That writ petition was disposed of by Ext.P9 judgment dated 10.06.2015, recording the submission made by the learned Standing Counsel that the reply submitted by the College to the show-cause notice dated 30.01.2015 shall be placed in the next meeting of the Syndicate and a final decision shall be taken after affording the petitioner an opportunity of being heard. 10. As authorised by the Syndicate, the 1[st] respondent Vice Chancellor conducted a personal hearing on 21.10.2015 and with the approval of the Vice Chancellor, the University by Ext.P8 order dated 02.11.2015, de-affiliated the College from the academic year 2015-16, for the reasons stated therein. Based on a complaint made by the Management against a former Syndicate W.P.(C)No.18445 of 2020 -8- Member, the Syndicate Standing Committee on Affiliation and Approval, which met on 16.05.2017, resolved to constitute an Inspection Commission to enquire and report on that complaint. The Inspection Commission found that the College has sufficient infrastructural and institutional facilities to conduct MBA programme with an intake of 60 students and recommended grant of affiliation for the academic year 2017-18. Based on the report of the Inspection Commission, the Syndicate resolved to restore the affiliation of the college, sanctioning only MBA programme with an intake of 60 seats, for the academic year 2017-18. That decision of the Syndicate was approved by the Vice Chancellor and accordingly, by Ext.P11 order dated 30.05.2017, the College was granted provisional affiliation for MBA programme, for the academic year 2017-18. 11. According to the petitioners, as stated in Ext.P12 reply dated 26.09.2018, a copy of Ext.P11 order dated 30.05.2017, granting provisional affiliation for MBA programme, for the academic year 2017-18, was received in the College only on 28.07.2017. On account of uncertainty in the matter of affiliation, the petitioners could not make necessary arrangements for the W.P.(C)No.18445 of 2020 -9- course, including the appointment of faculties. By that time, there was no qualified students in the rank list of Management Aptitude Test to take admission in the College. Therefore, the College could not conduct MBA programme, during the academic year 2017-18. On receipt of show-cause notice dated 12.09.2018, a copy of which is placed on record along with a memo filed by the learned Standing Counsel on 24.09.2020, the Manager of the College submitted Ext.P12 reply dated 26.09.2018, seeking renewal of affiliation for the academic year 2018-19, since arrangements are being made to commence MBA programme, from the academic year 2019-20. After the submission of Ext.P12 reply, a personal hearing was conducted on 06.02.2020, which was attended by the Manager and the Principal of the College. Thereafter, by Ext.P13 order dated 20.03.2020 issued by the 2[nd] respondent, the affiliation granted to the College stands withdrawn on the ground that the College did not obtain prior approval of the University under Statute 15, Chapter 23 of the Mahatma Gandhi University First Statutes, in order to suspend instruction in MBA programme, for the academic year 2017-18, after remitting the prescribed fee, and the College did not resume the course after the said academic W.P.(C)No.18445 of 2020 -10- year, i.e., during 2018-19 and 2019-20, after intimating the Syndicate of the University. 12. Chapter 23 of the Mahatma Gandhi University First Statutes, 1997 deals with affiliation of colleges. Statute 15, Chapter 23 of the First Statutes deals with suspension of instruction in courses or subject. As per clause (1) of Statute 15, it shall be open to a college to suspend for want of students, with prior approval of the Syndicate, for a total period not exceeding one academic year, instruction in any subject or course of study in which the college is affiliated. At the end of the period of suspension, work may be resumed after intimating the Syndicate. As per clause (2) of Statute 15, no course of study shall be abolished in any college without the prior approval of the Syndicate. 13. The specific stand taken by the petitioners is that a copy of Ext.P11 order dated 30.05.2017, granting provisional affiliation for MBA programme, for the academic year 2017-18, was received in the College only on 28.07.2017. By that time, there was no qualified students in the rank list of Management Aptitude Test to take admission in the College. The specific stand W.P.(C)No.18445 of 2020 -11- taken by the petitioners that Ext.P11 order was communicated to the College only on 28.07.2017 is not denied in the statement filed on behalf of the 2[nd] respondent. However, the 2[nd] respondent would point out that, as admitted by the Manager of the College in Ext.P12 reply dated 26.09.2018, on account of uncertainties in the matter of affiliation, the petitioners could not make necessary arrangements for conducting MBA programme in the College, for the academic year 2017-18, including the appointment of faculties. It is pertinent to note that, in the report referred to in Ext.P11 order, the Inspection Commission found that the College has sufficient infrastructural and institutional facilities to conduct MBA programme with an intake of 60 students and accordingly, recommended grant of affiliation for the academic year 2017-18. 14. In the statement filed on behalf of the 2[nd] respondent it is admitted that the application submitted by the College for extension of affiliation for MBA programme for the academic year - 2018 19 was considered by the Syndicate and show-cause notice dated 12.09.2018 was issued for not conducting MBA programme, for which affiliation was restored vide Ext.P11 order dated 30.05.2017. The Manager of the College submitted Ext.P12 reply W.P.(C)No.18445 of 2020 -12- dated 26.09.2018. After the submission of Ext.P12 reply, a personal hearing was conducted on 06.02.2020, which was attended to by the Manager and the Principal of the College. Thereafter, the 2[nd] respondent issued Ext.P13 order dated 20.03.2020, whereby the provisional affiliation for conducting MBA programme, which was restored vide Ext.P11 order dated 30.05.2017, for the academic year 2017-18, is withdrawn on the ground that the College did not obtain prior approval of the University, in order to suspend instruction in MBA programme, for the academic year 2017-18, and the College did not resume the course after the said academic year, after intimating the Syndicate of the University. When the application submitted by the College for extension of affiliation for MBA programme for the academic year 2018-19 was under consideration of the Syndicate, it cannot be said that the College has not taken any steps to resume the course after the said academic year, after intimating the Syndicate. 15. Statute 14, Chapter 23 of the Mahatma Gandhi University First Statutes, 1997 deals with withdrawal or suspension of affiliation. As per Statute 14, the Syndicate shall W.P.(C)No.18445 of 2020 -13- have the power at any time after the enquiry to withdraw or suspend for a definite period the affiliation granted to a college, provided that before taking such action the Syndicate shall inform the Management of the college concerned of the findings after the enquiry and shall allow it an opportunity of making such representation as it may deem fit and shall record its opinion on the representation so made. The report of the enquiry and the representation made by the Management, if any, and the decision of the Syndicate shall be placed before the Senate. 16. In the instant case, as discernible from the show-cause notice dated 12.09.2018, which is placed on record along with the memo filed by the learned Standing Counsel on 24.09.2020, in the report of the Inspection Commission, which inspected the College in connection with extension of affiliation for MBA programme for the academic year 2018-19, it has been reported that, during the academic year 2017-18 the College failed to resume MBA programme or appoint faculties for conducting that programme. Based on that report, the Syndicate decided on 09.08.2018 to issue a show cause notice to the Management, to show cause why the affiliation granted to the College shall not be withdrawn. W.P.(C)No.18445 of 2020 -14- 17. Statute 14, Chapter 23 of the Mahatma Gandhi University First Statutes contemplates an enquiry to withdraw or suspend affiliation. After the enquiry, the Syndicate has to inform the Management of the College the findings in the enquiry report and allow the Management an opportunity of making such representation as it may deem fit. Thereafter, the Syndicate shall record its opinion on the representation so made. Any inspection conducted by the Inspection Commission appointed by the Syndicate Standing Committee on Affiliation and Approval, in connection with extension of affiliation for MBA programme in the College for the academic year 2018-19, would not fall within the sweep of an enquiry to withdraw or suspend affiliation, as contemplated in Statute 14, Chapter 23 of Mahatma Gandhi University First Statutes. Therefore, the Syndicate of the University cannot invoke its powers under Statute 14, Chapter 23, based on the report of the Inspection Commission, which had inspected the College in connection with extension of affiliation for MBA programme for the academic year 2018-19. 18. It is well settled that, when the Statute requires to do certain thing in certain way, the thing must be done in that way or W.P.(C)No.18445 of 2020 -15- not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim "expressio unius est exclusion alteris" meaning thereby that, if the Statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of exercise of statutory power has first been identified by Jassel M. R. in the case of **Taylor v. Taylor [(1876) 1 Ch.D. 426]** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor [AIR 1936 PC 253]** . 19. In that view of the matter, Ext.P13 University order dated 20.03.2020, whereby the provisional affiliation for conducting MBA programme, which was restored vide Ext.P11 order dated 30.05.2017, for the academic year 2017-18, stands withdrawn, under Statute 14, Chapter 23 of the Mahatma Gandhi University First Statutes, cannot be sustained in law and the same W.P.(C)No.18445 of 2020 -16- is accordingly set aside. As the College presently does not have approval by the AICTE for conducting MBA programme, it is for the petitioners to approach the Registrar of the 2[nd] respondent University for provisional affiliation for MBA programme, in accordance with the provisions under Chapter 23 of the Mahatma Gandhi University First Statutes, after obtaining such approval from the AICTE. On such request being made, the University shall consider the same and take an appropriate decision on that request, strictly in accordance with law, after affording an opportunity of being heard to the Manager/Principal of the College. 20. The further relief sought for in this writ petition is grant continuation of affiliation for B.Com (Computer Application) and fresh affiliation for B.Com (Finance and Taxation) for the academic year 2020-21, within a time limit to be fixed by this Court. As already noticed, the College was having provisional affiliation for B.Com (Computer Application) only till the academic year 201112. As discernible from Ext.P11 order dated 30.05.2017, based on the report of the Inspection Commission, the Syndicate of the University resolved to restore the affiliation of the college, sanctioning only MBA programme with an intake of 60 seats, for W.P.(C)No.18445 of 2020 -17- the academic year 2017-18. That decision of the Syndicate was approved by the Vice Chancellor and accordingly, by Ext.P11 order the College was granted provisional affiliation for MBA programme, for the academic year 2017-18. The petitioners have not chosen to challenge, at appropriate time, Ext.P11 order to the extent it confined provisional affiliation only to MBA programme. In order to conduct B.Com (Computer Application) or B.Com (Finance and Taxation) the petitioners will have to approach the Registrar of the 2[nd] respondent University with application for additional affiliation, in the manner prescribed in Statutes 3, 4 and 5, within the time limit prescribed in Statute 1 of the Mahatma Gandhi University First Statutes. Having failed to submit any such application before the Registrar of the 2[nd] respondent University, within the time limit specified in Statute 1, i.e., not later than the 31[st] August of the academic year preceding the academic year in which the courses are proposed to be started, the petitioners cannot seek a writ of mandamus commanding the respondents to grant affiliation for B.Com (Computer Application) and B.Com (Finance and Taxation), for the academic year 2020-21, since no mandamus can be issued directing the University to do something which is contrary to the W.P.(C)No.18445 of 2020 -18- Statute, in view of the law laid down by the Apex Court in **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** . 21. In the result, this writ petition is disposed of by setting aside Ext.P13 University order dated 20.03.2020, and by permitting the petitioners to approach the Registrar of the 2[nd] respondent University seeking provisional affiliation for MBA programme, in accordance with the provisions under Chapter 23 of the Mahatma Gandhi University First Statutes, after obtaining approval from the AICTE. The petitioners shall also be entitled to approach the Registrar of the 2[nd] respondent University with an application for additional affiliation for B.Com (Computer Application) and B.Com (Finance and Taxation), in the manner prescribed in Statutes 3, 4 and 5, within the time limit prescribed in Statute 1 of the First Statutes, i.e., not later than the 31[st] August of the academic year preceding the academic year in which the courses are proposed to be started. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bkn -19- ## W.P.(C)No.18445 of 2020 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LETTER OF INTENT DATED 17/03/2003 ISSUED BY AICTE FOR ESTABLISHMENT OF A COLLEGE BY 1ST PETITIONER WHICH IS OFFERING MBA COURSE. EXHIBIT P2 TRUE COPY OF RELEVANT PAGE OF ORDER DATED 23/03/2005 PERTAINING TO PETITIONER COLLEGE GRANTING PROVISIONAL AFFILIATION TO B.COM AND MTA BY UNIVERSITY. EXHIBIT P3 TRUE COPY OF BROCHURE OF THE COLLEGE FOR THE ACADEMIC YEAR 2008-2009. EXHIBIT P4 TRUE PHOTOGRAPH OF THE LIBRARY OF THE COLLEGE. EXHIBIT P4(A) TRUE PHOTOGRAPH OF THE COMPUTER LAB OF THE COLLEGE. EXHIBIT P4(B) TRUE PHOTOGRAPH OF THE FRONT YARD OF THE COLLEGE. EXHIBIT P5 TRUE COPY OF THE REPORT DATED 02/09/2013 BY COMMISSION OF MEMBER SYNDICATE. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 10/02/2014 IN WPC NO.1309/2017. EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 02/07/2014 IN WPC NO.14899/2014. EXHIBIT P8 TRUE COPY OF ORDER DATED 02/11/2015 BY WHICH AFFILIATION WAS CANCELLED BY THE UNIVERSITY.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WPC NO.11679/2015.** **EXHIBIT P10 TRUE COPY OF INSPECTION REPORT DATED 07/03/2017 BY INSPECTION COMMISSION OF MEMBER SYNDICATE. EXHIBIT P11 TRUE COPY OF ORDER DATED 30/05/2017 GRANTING PROVISIONAL AFFILIATION FOR MBA COURSE BY THE UNIVERSITY.** W.P.(C)No.18445 of 2020 -20- **EXHIBIT P12** **TRUE COPY OF EXPLANATION DATED 26/09/2018 BY THE COLLEGE.** - **EXHIBIT P13 TRUE COPY OF ORDER DATED 20/03/2020 DISAFFILIATING THE COLLEGE BY THE UNIVERSITY.** - **EXHIBIT P14 TRUE COPY OF APPLICATION DATED 18/05/2018 BEFORE THE SYNDICATE OF UNIVERSITY SEEKING PROVISIONAL AFFILIATION FOR M.B.A. AND B.COM (COMPUTER APPLICATION).** - **EXHIBIT P15 TRUE COPY OF ORDER DATED 10/12/2019 BY MAHATMA GANDHI UNIVERSITY DECIDING TO AFFORD AN OPPORTUNITY OF BEING HEARD TO THE COLLEGE BEFORE THE AFFILIATION COMMITTEE.** - **EXHIBIT P16 TRUE COPY OF APPLICATION NIL DATED FOR EXTENSION OF PROVISIONAL AFFILIATION FOR B.COM (COMPUTER APPLICATION) AND FOR PROVISIONAL AFFILIATION FOR B.COM (FINANCE & TAXATION) BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P17 TRUE COPY OF THE APPLICATION DATED 14/10/2020 SEEKING EXTENSION OF PROVISIONAL AFFILIATION FOR B.COM (COMPUTER APPLICATION) SUBMITTED BY 2ND PETITIONER** **EXHIBIT P18 TRUE COPY OF THE RECEIPT DATED 14/10/2020 AS REGARD THE FEE FOR EXTENSION OF PROVISIONAL AFFILIATION**