W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY** **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940** **WA.No. 1565 of 2018 IN WPC. 18628/2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 18628/2018 of HIGH COURT OF KERALA DATED 13-07-2018** **APPELLANT(S)/RESPONDENT:** **MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM - 686 660.** **BY ADV.SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** ## **RESPONDENT(S)/PETITIONER::** **THE PRESIDENT / MANAGER, KESARI ARTS AND SCIENCE COLLEGE, NORTH PARUR - 683 513.** **BY SRI.P.M.SANEER** **BY SRI.TONY GEORGE KANNANTHANAM BY SRI.KURIAN GEORGE KANNANTHANAM** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03-08-2018, ALONG WITH WP(C).NO.18628/2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **HRISHIKESH ROY, Ag.C.J. & A.K.JAYASANKARAN NAMBIAR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of August, 2018** ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** W.A. No.1565 of 2018 is preferred by the Mahatma Gandhi University aggrieved by an interim order dated 03.07.2018 of the learned Single Judge in W.P(C).No.18628 of 2018. By the interim order impugned in the writ appeal, the learned Single Judge had, taking note of the fact that the writ petitioner college was enjoying an affiliation with the appellant University in the past, directed the University to renew the affiliation for the current academic year subject to the outcome of the writ petition. A direction was issued to the University to renew the affiliation, and include the writ petitioner college in the Centralised Allotment Process (CAP) that was commenced from 13.07.2018, for the purposes of further allotment. When the writ appeal came up for admission, taking note of the urgency projected by the parties for deciding the main issue agitated in the writ petition, we considered it appropriate to call for the records of the writ petition as well, and it is thus that both, the writ petition as well as the writ appeal, are before us and being considered together. For the sake of convenience, the reference to the parties is as it appears in the writ petition. **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 2 2. The writ petitioner is the President/Manager of a Self Financing Arts and Science College, which presently offers only B.Com courses. The college was initially affiliated to the Mahatma Gandhi University in 2002, and while the affiliation granted in 2002 was stated to be a provisional one, for a period of one year, and the order granting provisional affiliation indicated that the conditions subject to which the affiliation was made provisional would be separately communicated, it is the case of the petitioner that no such conditions were communicated to it. It is stated that the provisional affiliation that was initially granted for one year was extended in subsequent years for periods of one year each, through separate orders issued by the University. It needs to be noted at this stage that, while the initial provisional affiliation as per Ext.P2 order was in respect of various Science courses, it was only in the year 2014 that, based on an application made by the petitioner, the affiliation was granted in respect of B.Com courses. While so, the petitioner was served with Ext.P5 notice, which pointed out that the petitioner had not acquired ownership of the extent of land that was required in terms of University Grants Commission (UGC) Regulations, 2009, as amended in 2012, and under those circumstances, it had been decided by the Syndicate, through its meeting held on 24.03.2018, to cancel the affiliation of the college for the said reason. The petitioner was also called upon to submit reasons, if any, for not canceling the affiliation, within 15 days of receipt of the notice. Although there is a reference in the notice, to the Minutes of the Syndicate Meeting held on 24.03.2018, we are told that a copy of the said **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 3 Minutes was not enclosed along with the notice. While the petitioner submitted a reply to the said notice, the proceedings initiated thereby culminated in Ext.P8 communication dated 15.05.2018, whereby, the Assistant Registrar (Academic), acting for and on behalf of the Registrar of the University, informed the petitioner that the Syndicate Sub-Committee that had considered the matter, after hearing the petitioner, had taken a decision not to renew the affiliation in respect of the petitioner's college for the academic year 2018-2019, and that, the Vice Chancellor in exercise of its powers under Section 10 (17) of the Mahatma Gandhi University Act, 1985 had decided to accept the above recommendation of the Syndicate SubCommittee (Affiliation and Approval). Noting that Ext.P8 had effectively communicated to the petitioner that the affiliation of the college for the academic year 2018-2019 would not be renewed, the petitioner approached this Court through W.P(C).No.18628 of 2018 impugning Ext.P8 order of the University, and seeking a direction to the University to extend the affiliation for the academic year 2018-2019, to include the petitioner's college for the Centralised Allotment Process (CAP) for the academic year 2018-2019, as also to allot students to the petitioner's college. The interim order dated 03.07.2018, that is impugned in W.A. No.1565 of 2018, was passed by the learned Single Judge in the aforesaid writ petition. 3. The learned Senior counsel Sri.Kurian George Kannanthanam appearing on behalf of the writ petitioner would submit that Ext.P8 order of the respondent **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 4 University is apparently one that is passed in exercise of the power of the University to withdraw an affiliation already granted, and the said power is traceable to Section 23 (i) of the Mahatma Gandhi University Act, 1985 read with Chapter XXIII of the Mahatma Gandhi University Statutes, 1997. Our attention is drawn to the provisions of Statute 14 to indicate that, while the Syndicate has the power to withdraw an affiliation that is already granted, the procedure contemplated for the exercise of the power includes the conduct of an enquiry by the Syndicate and the extension of an opportunity of hearing to the college based on the findings of the Syndicate pursuant to the enquiry. Thereafter, the affiliation granted can be withdrawn, only after consideration of the objections of the college, to the findings of the Syndicate. It is pointed out that, in the instant case, a mere perusal of Ext.P5 notice that was served on the college would indicate that, the Syndicate had already taken a decision to withdraw the affiliation, and the petitioner college was only asked to show cause as to why the said decision should not be confirmed. It is the further submission of the learned Senior counsel that, the reason cited for withdrawal of the affiliation, namely, the non-compliance with the requirements of the UGC Regulations with regard to the ownership of land, is not valid since Ext.P10 Regulations, as amended by Ext.P11, clearly indicates that the said eligibility criteria for temporary affiliation, had to be satisfied only by a college that was seeking affiliation and not by a college, like the petitioner, which already had an affiliation to the respondent University. The fact that the University considered the **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 5 College as one already having affiliation is stated as acknowledged by the University itself in Ext.P5 notice that was issued to the petitioner. Per contra, the learned Standing counsel for the respondent University would point out that, Ext.P5 notice only communicates the proposal of the University to withdraw an affiliation that was granted to the petitioner college for the academic year 2018-2019. It is contended that, nothing turned on the wording in the notice so long as the proposals that were communicated by the University conformed to the requirement of Statute 14 of the University Statutes. With regard to the specific provisions in the UGC Regulations, 2009 as amended, it is stated that the requirement of ownership and possession of land is one that has to be satisfied by all colleges seeking affiliation, and from the said requirement, the petitioner college cannot claim any exemption. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, we are of the view that, for the reasons stated hereafter, the writ petition, in its challenge against Ext.P8 order, must necessarily succeed. It is not in dispute that, the proceedings that culminated with the issuance of Ext.P8 order, commenced with the issuance of Ext.P5 notice. Ext.P5 notice informed the petitioner of the proposal to withdraw an affiliation that it earlier had, albeit provisionally. The procedure that had to be followed by the respondent University, for withdrawing an affiliation already granted to the petitioner, is clearly stipulated in Statute 14 of the Mahatma Gandhi University Statute, 1997. On a **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 6 perusal of Ext.P5 notice, we do not find it be one issued in terms of the procedure contemplated under Statute 14. While the necessary steps that had to be followed before passing an order withdrawing the affiliation were not followed in the instant case, it is also relevant to note that Ext.P5 notice itself, to the extent it indicates that a decision had already been taken by the Syndicate to withdraw the affiliation of the petitioner's college, would fall foul of the requirements of national justice as indicated in **Oryx Fisheries Private Limited v Union of India and** **Ors – [(2010) 13 SCC 427]** . We have no hesitation, therefore, to hold that the very procedure that was initiated by the respondent University, to withdraw the affiliation to the petitioner college, was in violation of the University Statutes, and hence legally flawed. It follows, as a consequence, that Ext.P8 order, which is one passed pursuant to Ext.P5 notice, albeit after hearing the petitioner, cannot also be legally sustained. We therefore quash Ext.P8 order and allow the writ petition, with consequential reliefs to the petitioner. 5. Before parting with this matter, we may state that, the learned Senior counsel has raised an issue with regard to the applicability of the UGC Regulations on the facts of the instant case. We find that the UGC Regulations, which deal with the eligibility criteria for temporary affiliation, indicates that those criteria are to apply to colleges seeking affiliation, and the conditions prescribed are to exist at the time of inspection by the University in connection with the grant of temporary **W.A. No.1565 of 2018 & W.P(C).No.18628 of 2018** 7 affiliation. On the facts of the instant case though, inasmuch as it is admitted by the respondent University that the petitioner's college already has an affiliation, albeit provisional, since 2002, and this fact is also seen acknowledged in Ext.P5 notice issued to the petitioner college, we do not deem it necessary to go into the issue in detail, more so when we have already quashed Ext.P8 order on another ground. Thus, we dispose these cases by quashing Ext.P8 order and allowing W.P(C).18628 of 2018, and dismissing W.A.No.1565 of 2018 preferred by the University, against the interim order of the learned Single Judge in the writ petition. As a consequence, the petitioner college shall be treated as having affiliation, albeit provisional, for the academic year 2018-2019 and on the said basis, the respondent University shall also include the petitioner's college in the Centralised Allotment Process for the current academic year. Sd/- **HRISHIKESH ROY ACTING CHIEF JUSTICE** Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns **W.A. No.1565 of 2018 &** 8 **W.P(C).No.18628 of 2018**