State of Kerala represented by Secretary to Government, Department of Higher Education, Secretariat, Thiruvananthapuram-695001 v. A.M. Educational Trust Pazhavil West, Thrissur-680564; Kannur University; The Vice Chancellor, University of Calicut

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **W.A.No.1377 OF 2017** **AGAINST THE JUDGMENT IN WPC 29499/2016 DATED 21-12-2016** **OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,THIRUVANANTHAPURAM-695 001.** **BY SR. GOVERNMENT PLEADER SRI.SURIN GEORGE IPE** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2:** **1 A.M. EDUCATIONAL TRUST PAZHUVIL WEST, THRISSUR-680 564, REPRESENTED BY THE PRINCIPAL, T.R.HARY. 2 UNIVERSITY OF CALICUT THENJIPALAM, MALAPPURAM DISTRICT-673 635, REPRESENTED BY THE REGISTRAR. 3 THE VICE CHANCELLOR UNIVERSITY OF CALICUT, THENJIPALAM, MALAPPURAM DISTRICT-673 635.** **SRI.GEORGE POONTHOTTAM(SR) FOR R1 SRI.P.C.SASIDHARAN, SC FOR R2 AND R3** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2020, ALONG WITH WA.1365/2017, WA.1556/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** **WA.No.1365 OF 2017** **AGAINST THE JUDGMENT IN WPC 29248/2016 DATED 21-12-2016** **OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT:** **THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT, SECRETARIAY, THIRUVANANTHAPURAM - 695 001.** **BY SR. GOVERNMENT PLEADER SRI.SURIN GEORGE IPE** ## **RESPONDENTS/PETITIONER AND THE 1ST RESPONDENT:** **1 PRAMOD P.V, PRINCIPAL, LOURDE INSTITUTE OF ALLIED HEALTH SCIENCES, THALIPARAMBA, KANNUR DISTRICT - 670 141.** **2 KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MANGATTUPARAMBA, KANNUR DISTRICT - 673 001.** **R2 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY R1 BY SRI.GEORGE MECHERIL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2020, ALONG WITH WA.1377/2017, WA.1556/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** **WA.No.1556 OF 2017** **AGAINST THE JUDGMENT IN WPC 27417/2016 DATED 21-12-2016** **OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT:** **STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **BY SR. GOVERNMENT PLEADER SRI.SURIN GEORGE IPE** ## **RESPONDENTS/PETITIONER AND THE 1ST RESPONDENT:** **1 REV.FR.DR.ABRAHAM PALATHINKAL PRESIDENT, RAJAGIRI EDUCATIONAL AND CHARITABLE TRUST, KANAKKENTHURUTHY, VADAKKANCHERRY, PALAKKAD DISTRICT.** **2 THE REGISTRAR, UNIVERSITY OF CALICUT, UNIVERSITY P.O., MALAPPURAM DISTRICT - 670 121.** **R2 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY R1 BY SRI.GEORGE MECHERIL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2020, ALONG WITH WA.1365/2017, WA.1377/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.1377, 1365 & 1556 of 2017 : 4 : ## **JUDGMENT** ## **[ WA.1377/2017, WA.1365/2017, WA.1556/2017 ]** ## **Dated this the 1st day of July 2020** ## **S.MANIKUMAR, C.J.** These writ appeals are filed challenging the judgment in W.P(C)No.29248/2016 and connected cases dated 21.12.2016, by which the writ court, while considering a batch of writ petitions, W.P(C). No.24872 of 2016 and connected cases, set aside the Government Order dated 22.8.2016 as unconstitutional and void. The writ court further directed respective universities to reconsider the applications submitted by the petitioners therein and pass appropriate orders within a period of one month from the date of receipt of a copy of the common judgment. 2. Instant appeals are filed by the State. When the matter came up for admission, Mr. Surin George Ipe, learned Senior Government Pleader fairly submitted that issue is covered by judgment dated 5.7.2017 in W.A. 236 of 2017 reported in State of Kerala v. M.G.M College of Arts and Science reported in 2017 (3) KLT 779. 3. For brevity, paragraphs 7 to 11 of the reported judgment are extracted below: W.A.Nos.1377, 1365 & 1556 of 2017 : 5 : “7. If we refer to the scheme as contained in the Statutes and then to Clause 9(7), we will find that Government's interference is only at the end. Why we have referred to the scheme is that an institution decides to set up a college. Having taken that decision, they create the infrastructure, both in terms of building and in terms of manpower. They then apply to the University for affiliation. University conducts rounds of enquiries and inspections. When it finds everything in order and the condition right for grant of affiliation, it has, at that stage, to “ascertain the views of the Government”. Can it be expected of the Government to advice the University to refuse grant affiliation. We think not unless there are some cogent deficiencies in the institution, for, it will be travesty of justice to give the power to the Government, at this stage, where a person may have invested crores of rupees, spent several years in establishing an institution, in recruiting people, construction of building, only to be told no by the Government. Surely, that is not the power of the Government as contemplated under Clause 9(7) of the Statutes. The power is for the Government to recommend proper compliance of the Statutes, and in so far as improvement of infrastructure is concerned, it is for the University to see, whether the standards are met. Now, once the University approves of the W.A.Nos.1377, 1365 & 1556 of 2017 : 6 : standards that are to be met, in our view, the Government would have no say to advice the University to reject affiliation. If it does, it would be arbitrary unless good reason is shown by the State. 8. Now, we come to the facts of the present case where, after the institutions were set up and inspections were conducted and change of Government, suddenly the Government order was issued on 22.08.2016 putting a complete ban on self-financing colleges. All colleges that had already been set up and were awaiting affiliation thus, virtually became redundant. All investments went down the drain. Rightly, the learned single Judge has disapproved of such a policy decision. 9. Once power has been conferred on the authorities under the University Statute and the Statutes as such, the Government cannot override the discretion of the University, because such a policy makes the entire statute dealing with affiliation redundant. This takes away the right of parties to establish institutions even in the unaided sector. Surely, this right is not exercised by the Government in terms of Clause 9(7) of the Statutes. A policy decision of this nature cannot be valid, even otherwise. 10. Even otherwise, for, it affects the fundamental rights of parties to receive education and to impart education. Education, as noticed in the W.A.Nos.1377, 1365 & 1556 of 2017 : 7 : beginning, is an integral part of life and liberty. Such a right can be restricted not by a policy decision, but only by a law and law means law made by the competent legislature and not by an executive fiat. Further, a policy decision like this fetters future discretion. Such fetters cannot be put. This policy puts a complete embargo for all times that no such self financing institution can be allowed to be established. Such policy restricting future discretion is not reasonable, in any manner. 11. Learned standing counsel for the University vehemently argued that there is likelihood of mushrooming growth of such educational institutions. We see no wrong in such growth, for, we are of the view that the system works on the principle of demand and supply. No person will sink crores of rupees to establish an institution, if there is no demand for it. If there is no demand for it, then an institution which is already set up would diversify to other activities or other courses. They being unaided institutions, they have to look out for their own finances. They know what is best for them. Creating or continuing with the scarcity situation only undermines education and deprives the people of their needs. It is the students and their parents and also their guardians, who would decide where to go, which course they would follow, ## W.A.Nos.1377, 1365 & 1556 of 2017 : 8 : and which college is ideally suited for the student. In such matter, the Government should have a restrained approach. Leave the matter to the University to decide. For the reasons aforesaid, we are not inclined to interfere with the judgment of the learned single Judge under appeal. These appeals are dismissed.” 4. Placing on record the submission of the learned Senior Government Pleader and following the judgment dated 5.7.2017 in W.A. 236 of 2017 reported in State of Kerala v. M.G.M College of Arts and Science reported in 2017 (3) KLT 779, instant writ appeals are dismissed. Pending interlocutory applications, if any, shall stand closed. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/-** **SHAJI P. CHALY JUDGE** jes