High Court of KeralaDivision BenchWrit petitions allowed; impugned government/Uni...

W.P.(C) Nos. 26219/2012, 26231/2012 and 26345/2012 v. Kerala University of Health Sciences & State of Kerala

Case / Petition Number:W.P.(C) Nos. 26219/2012, 26231/2012, 26345/2012
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. M. Joseph
  • K. Harilal
Judgment Date
2012-12-04
Court Decision / Holding
The writ petitions are allowed. The impugned University communications (Ext.P10, Ext.P16, Ext.P8) are quashed. The University must consider the continuation/extension of affiliation for Pharm D for 2012-13 afresh, in accordance with law, without being bound by the Government’s letter. The University should complete the exercise and take a decision within one month from the copy of the judgment, taking into account inputs from the Government but not being bound by it. The Government letters may be taken as information but not as binding dictates. The petitioners’ admissions for 2012-13 in Pharm D should proceed subject to lawful extension of affiliation.
Final Disposition
Writ petitions allowed; impugned government/University communications quashed; University to decide extension of Pharm D affiliation in 2012-13 according to law, within one month; not bound by Government letters.

Parties to the Case

Appellants / Petitioners

  • Principal, National College of Pharmacy, Manassery, Kozhikode
  • Educational Agency running a Pharmacy College (W.P.(C) Nos. 26231/2012)
  • Petitioner's college (Pharm D course) (W.P.(C) No. 26345/2012)

Respondents

  • Kerala University of Health Sciences, Mulamkunnathukavu, Medical College Po, Thrissur District, Kerala
  • State of Kerala, represented by the Secretary to Government, Department of Health and Family Welfare

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. George Poonthottam (for W.P.(C) No. 26219/2012)

Counsels for Respondents

  • • Sri P. Sreekumar, SC, Kerala University of Health Sciences
  • • Sri Roshan D. Alexander, Government Pleader

Case Synopsis & Summary

These connected writ petitions challenge the decisions and communications by the Kerala University of Health Sciences and the Government relating to continuation/extension of affiliation for the Pharm D course for the academic year 2012-13 in several pharmacy colleges. The petitioners, including the Principal of the National College of Pharmacy, Manassery, Kozhikode, and other educational agencies running Pharm D programs, contended that the approvals for the Pharm D course had been granted by the Pharmacy Council of India and that affiliation extensions and admissions for 2012-13 could not be arbitrarily denied on the basis of Government-directed conditions such as seat sharing with the Government and fixed fee regimes. They argued that no Objection Certificate (NOC) is not a prerequisite for Pharm D in this context and emphasized the autonomy of the University in academic matters, resisting what they termed external Government interference and cross-subsidy concerns. The respondents claimed the petitioners were bound by the NOC conditions, including seat sharing and fee fixation, and that the University’s powers under the University Act (particularly Sections 51(3) and 53) and the Government policies should guide continuation of affiliation. The Court, recognizing a lack of statutes governing affiliation and urging academic autonomy, quashed the challenged University communications and directed a fresh, lawful consideration by the University, free from the Government’s binding effect, with a one-month deadline for decision.

Provisions of Law Cited

Section 53 of the University ActSection 51(3) of the University ActArticle 30 of the Constitution of India

Legal Doctrines & Maxims

  • Wednesbury Doctrine
  • Autonomy of Universities (academic autonomy)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the Pharm D course was sanctioned by the Pharmacy Council of India and affiliated by the University; conditions such as seat sharing with the Government and fixed fees, imposed via government communications, were not legally mandatory and could not justify denial of affiliation extension for 2012-13. They contended that no Objection Certificate (NOC) was required for Pharm D, urged university autonomy, and urged the Court to quash the government-initiated orders (Ext.P10/Ext.P16/Ext.P17) and direct the University to grant extension in accordance with law, emphasizing that withholding admission would cause unfair prejudice and cross-subsidy concerns contravene the Supreme Court’s Inamdar principle.

Contentions of Respondents

The respondents argued that the petitioners were bound by the NOC and associated conditions, including seat sharing and fee fixation, and that the University should act under the University Act (accessory to Statutes) and government policy; they contended that the University is a creature of statute, with the power to grant continuation of affiliation under Section 53, even though statutory rules governing this area were absent; the Government’s direction was a relevant input, and the University could decide following due process; the government’s social justice aims and bank guarantees were part of the regulatory framework.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Maha Vidyalaya & Others2006 (9) SCC 1Mentioned OnlyCited to support arguments on autonomy in the face of government interference but not treated as controlling authority in this decision.
P.A. Inamdar & Others v. State of Maharashtra2005 (6) SCC 537PositiveSupreme Court principle that there cannot be any compulsion for seat sharing; used by the court to support the petitioners’ stance against coercive seat-sharing terms.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** ## **WP(C).No. 26219 of 2012 (B)** **---------------------------** **PETITIONER(S): ------------------------** **THE PRINCIPAL, NATIONAL COLLEGE OF PHARMACY, MANASSERY, KOZHIKODE -673 602.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **----------------------------** **1. KERALA UNIVERSITY OF HEALTH SCIENCES, MULAMKUNNATHUKAVU,MEDICAL COLLEGE PO, TRICHUR DISTRICT, PIN-680 596, REPRESENTED BY THE REGISTRAR.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** ## **R1 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY OF HEALTH SCIENCES R2 BY GOVERNMENT PLEADER SRI. ROSHAN D.ALEXANDER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-12-2012 ALONG WITH WPC. NO.26231/2012 AND WPC. NO. 26345/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.26219/2012 B** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 TRUE COPY OF THE APPROVAL GIVEN BY THE PHARMACY COUNCIL OF INDIA NO.50-268/2008-PCI/5829-22 DATED 13/6/2009.** **EXT.P2 TRUE COPY OF THE PERMISSION GIVEN BY THE PHARMACY COUNCIL OF INDIA NO.50-268/2009-PCI/8649-51 DATED 24/5/2010.** **EXT.P3 TRUE COPY OF THE ORDER NO.1365/A1. 1/2010/KUHAS DATED 13/6/2011 ISSUED BY THE 1ST RESPONDENT.** **EXT.P4 TRUE COPY OF THE BANK GUARANTEE NO.ILG 42581 LG000510 DATED 23/6/2010.** **EXT.P5 TRUE COPY OF THE ORDER NO.5478/AC. 1/3/2011 DATED 23/2/2012 ISSUED BY THE 1ST RESPONDENT.** **EXT.P6 TRUE COPY OF THE COMMUNICATION NO.50-268/2012-PCI/60898-900 DATED 15/10/2012 GIVEN BY THE PHARMACY COUNCIL OF INDIA.** **EXT.P7 TRUE COPY OF THE COMMUNICATION NO.208/NCP/12 DATED 28/6/2012 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT.** **EXT.P8 TRUE COPY OF THE APPLICATION DATED 30.6.2012 GIVEN BY THE PETITIONER FOR THE ACADEMIC YEAR 2012-13.** **EXT.P9 TRUE COPY OF THE G.O.(RT) NO.3027/11/H&FWD DATED 23/8/2011. EXT.P10 TRUE COPY OF THE COMMUNICATION N0.5478/AC.1/3/ 2011 DATED 17/10/2012 GIVEN BY THE 1ST RESPONDENT..** **EXT.P11 TRUE COPY OF THE GOVERNMENT LETTER NO.44849/K2/11/H&FWD DATED 16/10/2012.** **EXT.P12 TRUE COPY OF THE NOTIFICATION NO.4563/ACII/KUSH/2012 DATED 30/10/12.** **EXT.P13 TRUE COPY OF THE CIRCULAR NO.4563/ACII/KUSH/2012 DATED 31/10/12 ISSUED BY THE 1ST RESPONDENT.** **EXT.P14 TRUE COPY OF THE GOVERNMENT LETTER NO.44849/K2/11/H&FWD DATED 01/6/2012.** **EXT.P15 TRUE COPY OF THE COMMUNICATION NO.14-168/2010-PCI/5657658685 DATED 7/9/2012.** ## **RESPONDENT'S ANNEXURES:** ## **R2(A): COPY OF THE NOC DTD. 23/06/2010 ISSUED TO THE NATIONAL PHARMACY COLLEGE.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** K.M. JOSEPH & K. HARILAL **JJ. =====================** W.P.(C)Nos. 26219, 26231 & 26345 of 2012 **=====================** Dated this the 4[th] day of December 2012 ## JUDGMENT ## **K.M.Joseph,J.** These writ petitions raise certain common issues and hence we dispose of the same by a common Judgment. ## **W.P.C.No.26231 of 2012** 2. Briefly put, the case of the petitioner is as follows :- Petitioner is the Educational Agency running a Pharmacy College. The Pharmacy Council of India had given sanction for starting a new Pharm D course in petitioner's College in 2009. Affiliation was granted by the University during 2010-2011. The affiliation was extended for 2011-2012 also. At the time of affiliation, the Government had given their NOC and letter of permission, though the same was not legally necessary. One of the conditions was that petitioner should enter into a seat sharing agreement with the Government. Petitioner had entered into such an agreement in 2010 and in 2011. This year, there was difference of opinion. Petitioner was willing to have such an WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** agreement, but insisted that the fees should be uniform and reasonably viable. The Government did not agree. Instead, they wrote to the University not to extend affiliation for this year. Accordingly, the University informed the petitioner that affiliation cannot be extended. There were five other colleges offering the same course. They also did not execute any agreement. Affiliation for those colleges were extended. Hence, this writ petition. 3. Petitioner is the Educational Agency of a Pharmacy College offering U.G. & P.G. level courses. It is a Minority management. The University of Calicut issued their No Objection Certificate (NOC). At that time, the Calicut University had not finalised the Syllabus for the course. Ext.P2 purports to be the letter by which they finalised the same later and informed the Pharmacy Council of India. By Ext.P3, the Pharmacy Council of India granted permission to establish Pharm D Courses in 2009. It is an integrated course for 6 years, where the degree granted is treated to be equivalent to a Doctorate. Petitioner applied to the Government for permission, thinking that it was also necessary. Ext.P4 is the letter. The Government issued WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** Ext.P5 NOC dated 21.12.2009. There are certain conditions. They include, admission to 50% of the seats shall be made by the Director of Medical Education for 2010-2011. The fees for this Course would be fixed by the Government and the petitioner is to execute an agreement with the Government for fees and seat sharing. Petitioner informed the Government by way of Ext.P6 letter that he is prepared to abide by the conditions in Ext.P5. Petitioner entered into Ext.P7 agreement with the Government. Ext.P8 is the Letter of Permission dated 31.03.2010. The same day Government issued Ext.P9 orders fixing the fees for the course. The fee for Government students were fixed at Rs.43,000/- and Management students at Rs.1,50,000/-. Over and above, a special fees of Rs.52,000/- was also ordered. But by that time, the 1[st] respondent University had come into existence and all new affiliations had to be under that University. By Ext.P10, the Calicut University forwarded petitioner's application to the 1[st] respondent University. The Pharmacy Council of India granted its approval on 24.05.2010 for 2010-11 and noted that petitioner could not commence classes during 2009-10 vide Ext.P11. Thereafter, the University granted WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** affiliation for 2010-2011. Conditions similar to Ext.P5 were incorporated in Ext.P12 also. Petitioner entered into a seat sharing agreement with the Government for 2011-2012 also, on the same lines as in the previous year. By Ext.P13, the University extended the affiliation for 2011-2012. By Ext.P14, the Pharmacy Council also issued orders granting approval for the course for 2011-2012. There are problems in this year. The main issue was regarding the fee chargeable. The fee of 'Management Students' had to be hiked up considerably. There were discussions with the management of other colleges offering Pharm D. It was collectively decided that the managements would agree to give over 50% of the seats to the Government, but the fees should be uniform to all candidates other than NRI. Petitioner had applied for extension of affiliation for this year (2012-2013). The University never used to issue orders extending affiliation in time after the first affiliation. Ext.P15 is the order issued by the Government on 18.08.2012 directing the DME to allot students only to one college which entered into agreement with the Government. Ext.P16 dated 17.10.2012 is the communication with the University that extension of WPC 26219/2012 & CONNECTED CASES -5- affiliation cannot be granted for Pharm D in petitioner's college because the Government has written to the University not to do so and students are not permitted to be admitted for Pharm D in 2012--2013. Ext.P17 is the Government order referred to in Ext.P16. It reads as follows: “Inviting your attention to the reference cited, I am to inform you that the Government granted NOC/LOP to start Pharm D course in Al Shifa College of Pharmacy, Perinthalmanna vide order first and second cited, National college of Pharmacy, Manassery vide order third cited, Sree Krishna College of Pharmacy and Research Centre, Parassala, Thiruvananthapuram vide order fourth and fifth cited and to Grace College of Pharmacy, Kodunthirappully as per order sixth and seventh cited. Vide reference ninth cited all the four institutions were asked to submit Bank guarantee or additional bank guarantee amounting to Rs.25 lakhs as ordered vide reference eighth cited. However except Sree Krishna College of Pharmacy and Research Centre no other institution conducting Pharm D course has produced Bank Guarantee as directed. Except Sree Krishna College of Pharmacy and Research Centre none of the institutions as required under No objection certificate/letter of Permission had executed agreement with Government in respect of WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** admissions and fee for the course during academic year 2012-13 for reasons detailed in Government order tenth cited. In the above circumstances, I am to request you not to grant extension of affiliation to the Pharm D course conducted in Grace College of Pharmacy, National college of Pharmacy and Al Shifa College of Pharmacy who have not executed agreement with the Government for the academic year 2012-13.” Ext.P18 is the order by the Government relating to enhanced Bank guarantee. A certificate was issued by the University stating the petitioners college is an affiliated college for Pharm D course as well for the year 2012-13. The petitioner seeks following prayers: i) Issue a writ of certiorari or other appropriate order or direction to quash Exts.P16 and P17, ii) to issue a writ of mandamus or other appropriate order or direction to direct the 1[st] respondent to grant extension of affiliation to the Pharm D course in petitioner's college, ignoring Ext.P17. iii) to declare that petitioner is entitled for extension of affiliation of the Pharm D course in petitioner's college, on a regular being. WPC 26219/2012 & CONNECTED CASES -7- iv) Grant such other reliefs as are just and proper in the nature of this case. ## **W.P.(C)NO. 26345/2012** 4. In WP(C)26345/2012 similar reliefs are sought for. The matter relates to Pharm D course. Exts.P8 and P9 correspond to Exts.P16 & P17 in W.P.(C)26231/2012 referred to above. It is pointed out that the only distinction is that the petitioner's college in this case started Pharm D course in 2011-12. ## **W.P.(C) 26219/2012** 5. Writ Petition, W.P.(C) 26219/2012, filed by the Principal of a college which also granted approval by Ext.P1 for Pharm D course for the academic year 2009-10. The prayers sought for are as follows: i) Issue a writ of certiorari calling for the records leading to Exts.P10, P11, P12 and P13 to pass appropriate orders to meet the ends of justice. ii) Issue a writ declaring that Ext.P10 communication has been issued by the University ignoring the duties and functions to be performed by the University in due discharge of their function as an affiliating body WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** and the manner in which orders relating to affiliation are required to be passed. iii) Issue a writ order or direction commanding the respondent - University to register the name of the students who are given admission in the petitioner college for the academic year 2012-13 for the course Pharm D and further direct the respondent University to issue extension of affiliation order ignoring Ext.P11 for the academic year 2012-13. 5. Briefly put, the case of the petitioner is as follows: The above writ petition is filed challenging Exts.P10 to P13. Pharm D course was given approval by Pharmacy Council of India in 2009 and the course was commenced in the petitioner's college in the academic year 2010-11. Affiliation also was granted by the University. Thereafter, approval for the next year namely,2011-12 was granted by the Pharmacy Council, so also the affiliation by the University. For the academic year 2012-13 also approval was granted by the Pharmacy Council. However, the University issued Ext.P10 communication pursuant to Ext.P11 letter from the Government. Ext.P10 communication by the University is illegal and unauthorised. The communication issued as per Ext.P12 and P13 are also contrary to law and WPC 26219/2012 & CONNECTED CASES **==> picture [15 x 9] intentionally omitted <==** another method resorted to compel the petitioner to agree to the terms of the Government by resorting a method of closure of admission even when admissions for which approval is given by the Pharmacy Council is required to be closed by 31[st] December. 6. A statement is filed by the University in W.P.(C) No. 26231/20120. Learned counsel for the University submits that a statement has been filed by him. The learned Government Pleader has placed on record a statement. 7. We heard the learned Senior counsel for the petitioner in W.P.(C) Nos.26231/2012 and 26345/2012, Learned counsel for the petitioners in other case, Learned Government Pleader and the learned standing counsel for the University. 8. The issue relates to affiliation for the year 2012-13 in respect of Pharm D course being conducted in the petitioners' college. The respondent University has by the impugned communication informed the petitioners that they will not be entitled to continuation of provisional affiliation for the year 2012-13 for Pharm D relying on the letter received from the Government which is also impugned in this case. University also states that hence the petitioners are not permitted to admit WPC 26219/2012 & CONNECTED CASES -10- students for Pharm D for 2012--13. ## 9. The contentions of the petitioners are as follows: According to the learned senior counsel for the petitioner, No Objection Certificate was obtained. There were conditions imposed. The conditions including the conditions that he must admit 50% of the students who are selected by the Director of Medical Education. Fees was to be fixed as directed by the Government. According to the learned Senior counsel for the petitioner, No Objection Certificate would show that the conditions related only to the year for which it was granted. Therefore, the conditions cannot be continued. More importantly, it is contended that the petitioners represented by him are not averse to seat sharing as such, what they found objectionable is the fixation of fees as done. It is contended in other words that contrary to the declaration of law by the Supreme Court , what the Government is trying is to impose fee regime, which involves the obnoxious element of cross subsidy. It is true that for two years they entered into agreement containing the objectionable condition. They feel now that they should not continue with the same and the WPC 26219/2012 & CONNECTED CASES -11- question is posed, can the Government which is bound by the Supreme Court declaration compel the petitioners to submit to the fee fixation regime. Learned Senior counsel for the petitioner would remind us that the petitioners are institutions entitled to protection under Article 30 of the Constitution. He would submit that the Government has no power to issue the impugned order. It is further contended that the University was not bound at any rate. He would further contend that there is a discrimination practiced. According to him, there are eight institutions, but only the petitioners along with another are targeted. It is further contended that no No Objection Certificate is required for starting Pharm D. According to the learned senior counsel, the University has only power to withdraw the affiliation and the University cannot say that because of the Government request, it is not going to give continued affiliation. He would contend that under Section 51 (3) of the University Act, there is reference to words first time affiliation which shows that the embargo against admitting students is applicable only in respect of first time affiliation. It is not in dispute that the petitioners have all admitted students WPC 26219/2012 & CONNECTED CASES -12- on their own. According to him, actually the petitioners have not violated the terms of the NOC. He would submit that the Government has not allotted students and therefore, they have proceeded to make admissions. 10. Learned counsel for the petitioner in W.P.(C) No.26219/2012 would essentially adopt the argument of the learned senior counsel for the petitioners in the other two cases. He would reiterate that no NOC is required for Pharm D. He would draw our attention to the judgment of the Apex Court in **State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Maha Vidyalaya & Others** ,( **2006 (9)SCC page 1.)** He would point out that the competent authority, the Pharmacy Council of India has given sanction and therefore the University cannot act as a Department of the Government. Both counsel for the petitioners would submit that the court should not over look the practical realities of the huge investments made and employment generated by the Institutions and the result of withholding of the affiliation. 11. Learned standing counsel for the University would submit that it is not correct to say that the University has taken a WPC 26219/2012 & CONNECTED CASES -13- decision feeling bound by the letter from the Government. He would alert us to the wording of the Government communication and point out that it is actually a request. In fact he contended that the matter is considered independently by the concerned authority. The University does not have any statute and the power has to be exercised by the Vice chancellor and in the absence of the Vice Chancellor, the Pro-Vice chancellor exercised the power. However, he would submit that as far as the University is concerned, the petitioners having obtained NOC and they are governed by the conditions in the NOC and they cannot wriggle out of the same and it is pointed out that the petitioners have not made any attempt at impugning the conditions in the NOC. He would also point out that there is no challenge to Ext.P15 Government Order, which reveals that certain problems were raised by the petitioners in relation to the fees, the Government was prepared to allow them to charge Rs. 1 lakh, but they would not settle for anything less than 1,75,000/- and the Government decided to allot students to only one college which agreed. He would point out the date of the said order and submit that the said order not having been WPC 26219/2012 & CONNECTED CASES -14- challenged, the petitioner must be told of the gates by this Court. He would also submit that the argument based on the only power being available is withdrawal of the affiliation is illfounded. According to him, the question raised is the grant of continued affiliation and the provision contained in Section 53 of the University Act applies. 12. Learned Government Pleader also filed a statement. He would submit that the petitioners are clearly bound by the NOC. In the statement which is filed attention is drawn to the social justice aspect, which induced the Government to enter into such agreements. The petitioners have agreed to the conditions which includes seat sharing and fee fixation, they cannot be permitted to wriggle out the said conditions, it is submitted. 13. It is submitted that they were bound to enter into agreements from time to time and that includes the payment of bank guarantee. The Government has also made available certain regulations relating to Pharm D. It is pointed out that only in a college which is offering B Pharm, can the Pharm D course be run. For starting Pharm D course, NOC from the WPC 26219/2012 & CONNECTED CASES -15- Government is not required. But he drew our attention to the prescribed standard inspection form and contended that approval of the State is required for Pharm D also. He also contended that the contention of the petitioners about there being illegality in fee fixation is not correct. 14. It is also pointed out that the petitioner in W.P.(C) 26219/2012 has not produced NOC or LOP. 15. Learned counsel for the petitioner in W.P.(C) No.26219/2012 would submit that the argument that the petitioner suppressed the material fact cannot be accepted. According to him, the acceptance of his contention may not require production of the NOC as such. His contention is about the power of the State and the duty of the University. He would also draw our attention to para.125 of the judgment of the Apex Court in **P.A.Inamdar & Others v. State of Maharashtra [(2005(6)SCC 537].** The Apex Court has unequivocally declared that there cannot be any compulsion for seat sharing. Learned senior counsel for the petitioners in W.P.26231/2012 would highlight before us that agreements are not legal, in that one of the clauses, viz. the fee as fixed by the WPC 26219/2012 & CONNECTED CASES **==> picture [21 x 9] intentionally omitted <==** Government necessarily involved the vice of cross subsidy. In other words, according to him, the petitioners would have no objection if the agreement were lawful, but by the impugned proceedings, the Government is seeking to enforce an illegal agreement. 16. The University is a creature of the statute. Undoubtedly in the absence of any statutory mandate to the contrary, it is not bound by a direction or communication from the Government. An University is a different body from the Government of the day. In fact, the law attaches considerable importance to the maintenance of autonomy by the Universities. Freedom from the stranglehold of Governmental control is generally highlighted as an indispensable requirement of a proper exercise of its powers and duties. The rationale is not difficulty to find; Universities deal with the maintenance of academic standards primarily. In all statutes relating to universities subject to just exceptions which are specifically provided for universities are given this large measure of freedom. Therefore, the law enjoins upon the concerned authorities of the Universities to take decisions in keeping with WPC 26219/2012 & CONNECTED CASES -17- well known principles relating to administrative law, viz. Wednesbury Doctrine, when there is statutory decision making process. 17. The respondent University in these cases is unfortunately plagued by the absence of any statute. This is despite the passage of considerable time. We are assured by the submissions made by the learned Government Pleader on telephonic instructions that the statutes will be in place by the end of this month. 19. In this case, we are impressed by the arguments of the petitioners that the impugned communication from the University is solely based on the impugned communication from the Government. The communication from the Government precedes the communication from the University by only one day. We are asked to imagine that in the space of a day in the absence of the Vice Chancellor, the Pro Vice Chancellor has taken a decision independently of the Government request that the affiliation should be refused. In fact communication per se is not one that issued by the Pro Vice chancellor. It is issued by the Registrar. But the learned standing counsel for the WPC 26219/2012 & CONNECTED CASES -18- University would submit that actually the files would indicate that the decision was taken by the Pro Vice Chancellor exercising the emergency powers under the Act. Section 53 of the Act reads as follows: Continuation of affiliation-(1) The affiliated college or recognised institution may apply for continuation of affiliation or recognition for the courses of study for which affiliation or recognition was granted ordinarily six months prior to the date of expiry of such affiliation or recognition. The University shall follow the procedure prescribed in Statutes, so far as applicable, for grant of continuation of affiliation. (2) The affiliated college or recognised institution may apply for affiliation or recognition for additional courses of study and the same shall be considered by the University following the procedures or rules prescribed in this regard in the Statutes. (3) An affiliated college with at least six years standing as an affiliated college may apply for permanent affiliation in the manner as may be prescribed in the Statutes and the University shall consider such applications in such manner as may be prescribed. There are no statutes governing affiliation. No doubt nobody has a case that in the absence of the statute, the University or WPC 26219/2012 & CONNECTED CASES -19- its organs cannot discharge its functions with which it is entrusted. The only indication in Section 53 is that the power is to be granted in terms of the statute prescribed for grant of affiliation. Therefore, in the absence of statute, there is nothing much forthcoming in the statutory provision as such. 20. But even then the University has to act independent of the Government. The very nature of a University and the purpose for which the power was granted to it would mean that it is to exercise the power in an independent manner. It is no doubt true that the impugned communication by the Government is couched in the form of request. But we are left with no doubt that the decision as taken by the University is on the basis that in view of the communication from the Government, the petitioners are not permitted to admit students to the Pharm D course for the year 2012-13 and they are not entitled to continue provisional affiliation for Pharm D. Nothing was forthcoming in the files also which would indicate that the University has considered the matter independently after application of mind to the relevant inputs. 21. We cannot overlook the fact that the University takes WPC 26219/2012 & CONNECTED CASES -20- the impugned decision within a space of the day from the receipt of the communication of the Government. We must also remind ourselves of the wording in the impugned communication from the University and therefore, we are constrained to come to the inevitable conclusion that this is a case where the University has decided on the issue of continued affiliation and not permitting students to be admitted in Pharm D course for the year 2012-13 feeling bound by the communication from the Government. 22. In the circumstances of these cases, we think we should not swayed by the fact of the petitioner in W.P.(C) No.26219/2012 has not expressly alluded to the NOC in the petition. In fact the Government's communication itself refers to the NOC issued in favour of the petitioner also and thereafter it is the case of the Government itself that the conditions of the NOC have been violated. In the nature of the arguments addressed, we would think that we need not resort to discountenancing the petitioner on the said ground. Learned counsel for the University in fact submits that the applications for continuation of affiliation filed by the petitioners have not yet WPC 26219/2012 & CONNECTED CASES -21- been decided. 23. The result of the above discussion is that we find that the impugned communications of the University is unsustainable. Having regard to all these circumstances, we are of the view that the University must consider the matter afresh in accordance with law and more importantly not feeling bound as such by the Government's letter which is also impugned in these cases. No doubt, it will be free for the University to take note of it as a piece of information. 24. In such circumstances, the impugned communications issued by the University, Ext.P10 in W.P.(C) No.26219/2012, Exts.P16 in W.P.(C) No.26231/2012 and Exts.P8 in W.P.(C) No.26345/2012, will stand quashed. 25. The respondent University in all these cases will consider the application for continuation of affiliation for the year 2012-13 for Pharm D in their respective colleges in accordance with law without feeling bound by the communication issued from the Government, Ext.P11 in W.P.(C) No.26219/2012, Ext.P17 in W.P.(C)No.26231/2012 and Ext.P9 in WPC 26219/2012 & CONNECTED CASES **==> picture [21 x 9] intentionally omitted <==** W.P.(C) No.26345/2012. 26. However we make it clear that it is open the University to take note of the information which is provided in the Government letters. 27. The exercise should be completed by the respondent University and a decision taken in accordance with law as early as possible, at any rate within one month from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. **Sd/K.M. JOSEPH, JUDGE** **Sd/K. HARILAL ,JUDGE** **ks.** **True copy** **P.s.to Judge** WPC 26219/2012 & CONNECTED CASES -23-