University of Calicut v. Tharanallur Educational and Cultural Society (TECS) & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR** **&** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932** **WA.No. 2845 of 2009()** - **--------------------AGAINST THE JUDGEMENT IN WPC.32644/2008 Dated 21/08/2009** **....................** ## **APPELLANT/IST RESPONDENT:-** **--------------------------------------------** **UNIVERSITY OF CALICUT THENHIPALAM PO, RERPESENTED BY ITS REGISTRAR.** **BY ADV. SRI.P.C.SASIDHARAN SMT.SMITHA CHATHANARAMBATH SRI. K.B. GANESH** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 & 3:-** **-------------------------------------------------------------------------------** **1. THARANALLUR EDUCATIONAL AND CULTURAL SOCIETY (TECS) MARAR ROAD, IRINJALAKUDA, REPRESENTED BY ITS SECRETARY K.P.JATHAVEDAN** **2. NATIONAL COUNCIL FOR TEACHER EDUCATION SOUTHERN REGIONAL COMMITTEE, IST FLOOR CSD BUILDING, HMT PO, BANGALORE REPRESENTED BY ITS REGIONAL DIRECTOR.** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM.** **ADV.K.B.GANGESH, FOR R1 ADV. SRI.V.M.KURIAN, SC, SRC-NCTE FOR R2 GOVERNMENT PLEADER FOR R3** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2010, THE COURT ON 28/07/2010 DELIVERED THE FOLLOWING:** **"CR"** ## **C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ.** = = = = = = = = = = = = = = Writ Appeal No.2845 of 2009. = = = = = = = = = = = = = = Dated this the 28th day of July, 2010. ## **J U D G M E N T** ## Gopinathan, J. The first respondent in WP(C)No.32644/2008 assails the judgment of the learned single Judge dated 21-8-2009. The first respondent, the University of Calicut (hereinafter referred to as the University) is the writ petitioner. The first respondent, a society registered under the TravancoreCochin Literary, Scientific and Charitable Societies Registration Act, 1955, (hereinafter referred to as the Society) applied before the second respondent, the National Council for Teacher Education, (hereafter referred to as NCTE) seeking recognition for starting a new B.Ed college at Irinjalakuda. By Ext.P1 dated 9-8-2007, NCTE informed the Society that conditional recognition was granted under para.7(11) of the NCTE Regulations permitting the Society **WA.No.2845/2009.** -: 2 :- to start the college with an annual intake of 100 students on satisfaction of the terms and conditions. One of the conditions is that the Society shall obtain affiliation from the University. Following Ext.P1, the Society filed Ext.P2 application dated 25-10-2007 before the University. The University deputed an inspection team which visited the campus on 23-4-2008 and filed Ext.P3 report. For five reasons noted therein, the inspection team recommended not to grant affiliation. Simultaneously, the Society had moved NCTE for according permanent recognition responding to which recognition was granted by Ext.P4 order subject to fulfillment of such other requirements as may be prescribed by the University or the third respondent State as applicable. In answer to Ext.P3, the Society made Ext.P5 representation dated 19-9-2008 before the University explaining the deficiencies noted in Ext.P3 and stating that the deficiencies noted were rectified. Thereafter, failing to have a response from the University, the Society moved the writ petition seeking an order to quash Ext.P3 report and to issue a writ of ## **WA.No.2845/2009.** ## -: 3 :- mandamus against the University to grant affiliation as applied in Ext.P2 application. The learned single Judge by the impugned judgment allowed the writ petition and directed the University to grant affiliation to the Society for running the college in accordance with Ext.P4 recognition granted by NCTE. Direction was also issued to the Commissioner of Entrance Examination for allotment of the students to the Society along with other colleges. Now this appeal. 2. We heard the learned counsel for the University, the Society, the Standing Counsel for NCTE and the Government Pleader. 3. This appeal is a typical example of the shadow fight between NCTE, a National statutory body and a University in the State. NCTE, who granted recognition asserts that the Society had necessary infrastructural facilities to start a B.Ed College. The University denies it. Who is to be believed? It is the sole issue involved in this case. Similar disputes have arisen earlier before this Court as well as before the Apex ## **WA.No.2845/2009.** -: 4 :- Court. In State of Maharashtra v. Sant Dnyaneswar Shikshan Shastra Mahavindyalaya & Ors. [(2006) 9 SCC 1], the Apex Court stated that the University is bound to implement the decision of the NCTE, but that does not mean that the University shall not follow statutory provisions. In Jaya Gokul Educational Trust v. Commr. & Secretary to Government Higher Education Department [(2000) 2 KLT 267 (SC)], the Apex Court has held that the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Government and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or Statutes which are not inconsistent with the AICTE Act or its Regulations. In Vikram Sarabhai Edl.Trust & B.Ed. College v. University of Calicut [2008 (2) KLT 1027], in an identical set of facts and law against the same University, a Full Bench of this Court, at para.12 held, “It is trite law that when the central body grants recognition, based on the finding that the College has necessary infrastructural **WA.No.2845/2009.** -: 5 :- facilities, the University has no power or authority to decline affiliation, on the ground of lack of infrastructural facilities.” At para.13 it was further held as follows:- “There may be a case where recognition is granted by the NCTE, holding that the College has all infrastructural facilities and it may be found by the University that no such facilities are available. In such a case, it can be rightly said that the recognition has been obtained by fraud. If the University feels that the affiliation has been granted illegally, it has several options before it. It may bring the same to the notice of the NCTE, so that the Council can cancel the affiliation under S.17 of the Act. It may challenge the recognition granted by filing an appeal under S.18 of the Act before the National Council for Teacher Education. The University can also challenge the recognition before this Court by filing a Writ Petition. In an appropriate case, for example, where recognition has been obtained by fraud, the University may even collaterally attack the validity of the recognition granted, in enforcement proceedings, like the present Writ Petition.” It appears that the University had either not read the ruling of this Court in Vikram Sarabhai Edl.Trust’s case (supra) or it has not properly understood the ruling. We are forced to presume so because the facts and law of case on hand are ## **WA.No.2845/2009.** -: 6 :- exactly identical to that case. If it had read the ruling above quoted, it would have resorted to the procedure mentioned therein, without defending the writ petition or preferring this appeal and burdening this Court at the cost of public exchequer. 4. The only contention that was advanced by the learned counsel for the University is the lack of infrastructural facilities. We note that as against Ext.P3 report, the Society had made Ext.P5 representation stating rectification of the objection noted by the inspection team. But, the University had not cared to examine whether what is stated in Ext.P5 is correct or not. University continues to stick on Ext.P3. It is in that circumstance, the Society was constrained to move this Court as it has no other go. 5. The learned counsel for the University has no case that the University had made a subsequent inspection and found that what is stated in Ext.P5 dated 19-9-2008 is not correct. According to the learned counsel, by Ext.R1(a) dated 10-10-2008 the University informed the NCTE that the **WA.No.2845/2009.** -: 7 :- application for starting B.Ed College by the Society has not been recommended by the inspection team for the five reasons stated therein which is nothing more than what is stated in Ext.P3. According to the learned counsel, in the light of Ext.R1(a), NCTE should have withdrawn the recognition. We are unable to accept the argument. In the light of Ext.P5, before sending Ext.R1(a) communication, the University ought to have ascertained the truth. 6. Having heard the learned counsel on either side, we find that the University even didn’t care to go through Ext.P5 representation. The University ought to have a further visit of the proposed site and to ascertain the correctness of what is stated in Ext.P5. Why it was not done? We fail to find any answer. There is total lack of bonafides on the side of the University. We find that, now a days, there is heavy rush for higher education, but there is lack of institutions imparting higher education. We are in need of more colleges for higher education, of course, with sufficient infrastructural facilities. The University should have encouraged the Society who had ## **WA.No.2845/2009.** -: 8 :- come forward with a proposal to start a new B.Ed College. Instead of that, not only there is total inertia but also a negative approach. The University had been sitting over Ext.P5 representation made by the Society without taking any decision. The result is that based on an application by the Society supported by sufficient infrastructure facilities, NCTE had accorded recognition to start a new B.Ed College. Still the University asserts that there is lack of infrastructure facilities. Standing Counsel for NCTE would submit that recognition was accorded on satisfying the infrastructural facilities. In this background, having due regard to the entire facts and circumstances, we answer the question raised in para.3 in favour of the Society. In the event, if the University still doubt about the infrastructure facilities, as mentioned in Vikram Sarabhai Edl.Trust’s case, it is for the University to appraise NCTE and to persuade it to withdraw the recognition. We regret to note that the University is involved in shadow fight and litigation after forgetting the object and duty; and even the beneficiaries. In the light of the decision **WA.No.2845/2009.** **==> picture [40 x 9] intentionally omitted <==** of the Full Bench in Vikram Sarabhai Edl.Trust’s, case (supra), we find that the learned single Judge was correct in allowing the writ petition and directing the University to grant affiliation. We find no reason to interfere. In the result, the appeal fails. Accordingly, appeal is dismissed with costs which we fix at Re.1, however, with liberty to the University to appraise NCTE, if there is lack of facilities, and to cancel the recognition. In such event, the University is also at liberty to withdraw the affiliation. ## **C.N.RAMACHANDRAN NAIR, (Judge)** ## **P.S.GOPINATHAN, (Judge)** **kvs/-**