WP(C) NO. 5362 OF 2021 1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

WEDNESDAY, THE 25

TH

DAY OF AUGUST 2021 / 3RD BHADRA, 1943

WP(C) NO. 5362 OF 2021

PETITIONER:

MALABAR COLLEGE OF ADVANCED STUDIES

VENGARA, MALAPPURAM-676519., REPRESENTED BY ITS

PRINCIPAL.

BY ADVS.

BABU KARUKAPADATH

SMT.M.A.VAHEEDA BABU

SHRI.P.U.VINOD KUMAR

SMT.ARYA RAGHUNATH

SMT.VAISAKHI V.

SRI.T.M.MUHAMMED MUSTHAQ

SHRI.MOHAMED HISHAM P

RESPONDENTS:

1 STATE OF KERALA

REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,

HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,

THIRUVANANTHAPURAM-695001.

2 UNIVERSITY OF CALICUT

CALICUT UNIVERSITY P.O., THENHIPALAM,

MALAPPURAM-673635., REPRESENTED BY ITS REGISTRAR.

3 THE REGISTRAR

UNIVERSITY OF CALICUT,

CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM-

673635.

SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY

SRI K.B RAMANAND SR GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2021/KER/31442

WP(C) NO. 5362 OF 2021 2

“CR”

JUDGMENT

Malabar College of Advanced Studies, Vengara, has approached this

Court being aggrieved by the refusal of the State to accord sanction to the

Institution to conduct Post Graduate courses for M.Com and M.A. (English)

with an intake of 15 each despite being recommended by the University of

Calicut to conduct the said programme.

2.A sketch of the facts leading to the filing of this Writ Petition are

as under:

a)The petitioner herein, is an aided Arts and Science College

affiliated to the University of Calicut, the 2nd respondent herein. The College is

established and run by the Malabar Educational and Charitable Trust. The

institution commenced its functioning in the year 2013 and presently offers 9

undergraduate programmes. Some of the programmes are aided and some are

unaided. It is contended that about 1068 students are studying in the

institution out of which, 75% are women students.

b)The College is situated in a rural area. The predominantly women

students, who completed their graduation, find it extremely difficult to pursue

post-graduate courses as institutions conducting such courses are few and far

off. Based on requests from the students and parents, the institution has

developed infrastructure facilities and amenities to start postgraduate courses.

2021/KER/31442

WP(C) NO. 5362 OF 2021 3

c) An application for affiliation for M.Com and M.A. (English) for the

academic year 2020-2021 was submitted before the 3rd respondent as

mandated under Chapter 23 of the Calicut University First Statutes, 1977. The

requisite fee was also remitted.

d) An inspection was conducted by respondents 2 and 3 to assess the

suitability and other factors. On being satisfied that the institution satisfies all

the criteria, the 2nd respondent, as per Ext.P1 intimation, addressed to the 1st

respondent, forwarded the list of innovative-interdisciplinary programmes duly

recommended in Government/Aided Arts and Science Colleges affiliated to the

University of Calicut for the academic years 2020-2021 and 2021-2022 for

further action. The Government was requested to communicate the views in

sanctioning the additional programmes. From Exhibit P1, it is evident that the

petitioner institution has been included in the list of Colleges in Malappuram

District.

e) Later, the 1st respondent by Ext.P2 order dated 5.11.2020 granted

administrative sanction to numerous colleges in the Government/Aided and

Unaided sector for new courses but refused to grant sanction for the conduct

of PG courses in the petitioner institution. Though Ext.P3 representation was

made by the Principal to reconsider the decision, the same was not heeded to.

f) The petitioner contends that the non-inclusion of the petitioner

institution is arbitrary and illegal.

g) Reliance is placed on Ext.P6 intimation, and it is pointed out that the

2021/KER/31442

WP(C) NO. 5362 OF 2021 4

Government had taken a stand that the National Assessment and Accreditation

Council (NAAC) score and National Institutional Ranking Framework (NIRF)

ranking are not insisted in Colleges which in the opinion of the University have

the necessary infrastructure to start appropriate programmes. While taking a

liberal stand by the State, there was no justification in not recommending the

petitioner institution particularly when the University had given their

recommendation.

3.A counter affidavit has been filed by the 1st respondent. It is

stated that the scheme evolved by the Government was to grant new courses

to colleges that had ‘A’ grade NAAC accreditation with a prescribed score and a

NIRF rating. It is further stated that while granting a new programme in an

existing college, 3 to 5 new faculty posts are required to be created. In the

light of the financial constraints, the proposal of the Government was such that

for the initial 5 years of the commencement of the new courses, the faculty will

be paid Guest Lecturer salary and thereafter, at the UGC scale. Since the

financial commitment involved in implementing the new policy involves a huge

financial burden, the Government has to plan the entire scheme based on the

financial capability of the State. It is further stated that while ensuring

benchmark standards, it is also necessary for the Government to maintain

parity between Universities while sanctioning new courses in the existing

institutions. Regional imbalances of the Government/aided institutions in the

State are considered to ensure equitable distribution of new courses.

2021/KER/31442

WP(C) NO. 5362 OF 2021 5

Prominence is given to educationally backward areas in the State and such

other socio-economic criteria. The Government is to ensure that the policy of

granting sanctions is equitable and satisfies the needs of the society as a

whole. It is further stated that the insistence of NAAC accreditation and other

benchmarks was liberalised by the Government at a later stage taking into

account the maintenance of equitable distribution and the upliftment of the

educationally backward area. It was in the said circumstances that the

Government had issued Ext.P6 directing the Universities to consider institutions

that do not have NAAC score and NIRF ranking, provided they have the

necessary infrastructure and keeping in mind the recommendations made by

the Kerala State Higher Education Council. It is further stated that unlike in

the early years, Malappuram District is educationally well served especially in

higher education. Besides numerous professional educational institutions, there

are 91 affiliated Arts and Science Colleges in Malappuram District alone. Out

of the 91 affiliated Colleges, 27 (29.67%) are Government/Aided Colleges. It

is further stated that the Vergara Town wherein the petitioner college is

situated, is in the periphery of places like Kottakkal, Thirurangady,

Malappuram, Parappanangadi, Tirur, Puthanathani, Kondotty and Tanur. All

these places are within a distance of 7 to 15 km from Vengara. In these

neighbouring places, there are 40 affiliated Arts and Science Colleges and

therefore, there is no pressing need to grant new programmes in the petitioner

institution during this academic year without them fulfilling the eligibility

2021/KER/31442

WP(C) NO. 5362 OF 2021 6

criteria.

4.It is further stated that as far as sanctioning new programmes in

aided colleges are concerned, the recommendations made by the University is

not the only criteria to grant sanction by the Government. Since the

Government is the paymaster and the public exchequer has to bear the

financial implications of post creation due to sanctioning new programs, the

Government has to consider the budgetary allocation before undertaking new

liabilities. The public funds are to be utilised in a judicious and equitable

manner so as to maintain a balance and to ensure the upliftment of

educationally and socially backward areas. It was taking note of all these

aspects that the Government had sanctioned new courses as per Exhibits P2,

P4 and P5 based on broader principles. It is further stated that the

Government is not in a position to sanction courses to all the institutions

recommended by the universities unmindful of the financial implications. It is

stated that the petitioner is not having any NAAC accreditation or NIRF

ranking. The case of the petitioner can only be considered as and when the

petitioner improves its standards by acquiring the required ranking and score.

It is further stated that the application submitted by the applicant has not been

rejected by the Government and can be considered in the future years.

5.In the counter affidavit filed by respondents 2 and 3, it is stated

that being an aided college, the sanctioning of the course needs Governmental

permission since the salary to the teachers is to be met by the Government. It

2021/KER/31442

WP(C) NO. 5362 OF 2021 7

is in the said circumstances that NOC for granting affiliation to of course in

unaided college is insisted upon. It is further stated that the views of the

Government are to be ascertained before granting Affiliation and that in aided

colleges, Courses cannot be sanctioned merely at the request of the

management.

6.A reply affidavit has been filed by the petitioner wherein it is

stated that the inspection team appointed by the University had visited the

college and had conducted a detailed inspection in tune with Ext.P6 issued by

the 1st respondent and it was thereafter that the petitioner institution was

recommended for affiliation to conduct M.Com and M.A (English) with an

intake of 15 students each. It is contended that though a specific contention

was taken by the petitioner in the writ petition that there is a paucity of PG

seats in the Malappuram District for students in general and women students

in particular, this fact is not controverted in the counter filed by the 1st

respondent. It is stated that the college is situated in a rural area and 75% of

the students are girls who find it extremely difficult to pursue PG courses. No

details are furnished in the counter as to the number of institutions running

postgraduate courses, opportunities offered to girl students and other aspects.

It is further stated that the petitioner institution is situated in Kannamangalam

Grama Panchayat in Malappuram District which is one of the most backward

areas as identified by the Central Government. The number of women in the

area is greater than the number of men even as per the records issued by the

2021/KER/31442

WP(C) NO. 5362 OF 2021 8

Election Commission. It is further stated that Malappuram District is the most

populated District in Kerala as per the 2011 census with as many as 41.13

lakhs of individuals residing in the District. As per the Rashtreeya Uchadhar

Siksha Abhiyan (RUSA) report, the Gross Enrolment Rate (GER) of students in

Malappuram is the lowest at 8.4% when compared to other districts in Kerala.

There is a clear imbalance and discrimination in the matter of sanctioning the

courses by the Government. Though in the counter affidavit, it is stated that

the petitioner college was not recommended due to lack of NAAC Score and

NIRF ranking, numerous colleges without any NAAC accreditation or NIRF

ranking have been recommended by the 1st respondent. According to the

petitioner, the stand of the Government is clearly discriminatory.

7.The petitioner states that the averment in the counter affidavit

that the Government is not in a position to sanction courses to all the

recommended institutions due to financial implications is clearly incorrect as it

has been specifically mentioned in Exts.P2, P4 and P5 Government orders that

no post creation shall be allowed for the courses till 2025 and that classes will

have to be conducted with Guest faculties.

8.I have heard Smt.M.A.Vaheeda Babu, the learned counsel

appearing for the petitioner, Sri. Ramanand K.B., the learned Senior

Government Pleader who appeared for the 1st respondent and Sri.

P.C.Sasidharan, the learned standing counsel appearing for respondents 2 and

3.

2021/KER/31442

WP(C) NO. 5362 OF 2021 9

9.Smt. Vaheeda Babu, relied on the judgment of the Apex Court in

T.M.A.Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], and it

was argued that the expression ‘Education’ in the Articles of the Constitution

means and includes education at all levels, from the primary school level upto

the postgraduate level. According to the learned counsel, the right to establish

and administer educational institutions is guaranteed under the constitution to

all citizens under Article 19(1)(g) and 26 and to minorities specifically under

Article 13. The right is intended to be effective and is not to be whittled down

by speculative measures. Reliance is placed on the judgment of the Apex

Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara

Swamigal Medical Educational & Charitable Trusts v. State of T.N.

[(1996) 3 SCC 15] and it is argued that the State Government could not refuse

essentiality certificate on policy considerations. Reliance is also placed on

Jayagokul Educational Trust v. Commissioner and Secretary to

Government Higher Education Department [(2000) 5 SCC 231], and it is

argued that the provisions of the Calicut University Act, 1956 and the statutes

only required the University to obtain the views of the Government and the

same cannot be characterized as requiring the approval of the State

Government. Much reliance is placed on the judgment of this Court in State of

Kerala v. MGM college of Arts and Science [2017 (3) KLT 779] and it is

argued that once the University approves of the standards that are to be met,

the Government would have no say to advise the University to reject affiliation.

2021/KER/31442

WP(C) NO. 5362 OF 2021 10

The learned counsel would contend that once power has been conferred on

the authorities under the University Statute to grant affiliation after

ascertaining the amenities and facilities, the Government cannot override the

discretion of the University. It is contended that this Court had occasion to

hold that education being an integral part of life and liberty, it cannot be

restricted by a policy decision but only by law and law made by the competent

legislature and not by executive fiat.

10.Sri. Ramanand K.B., the learned Senior Government Pleader,

submitted that as per the University Statutes, the University is bound to obtain

the views of the Government. The Government is required to take note of the

entire scenario in the educational sector in the State while considering whether

the recommendation is to be granted. The Government is required to prevent

the mushrooming of colleges in an area and also commercialisation of

education. It is further submitted that the creation of new posts by

sanctioning new programmes has financial implications and all these aspects

were taken note of while considering the request of the University. It is

submitted that the application submitted by the petitioner has not so far been

rejected but they have only been asked to upgrade their NAAC score and NIRF

ranking so that the request can be considered at a later stage.

11.Sri.P.C.Sasidharan, the learned standing counsel appearing for the

University, submitted that the University cannot ignore the views of the

Government. In the case on hand, the Government has not recommended the

2021/KER/31442

WP(C) NO. 5362 OF 2021 11

petitioner institution for the programmes recommended by the University. The

University is bound to take note of the views and act accordingly.

12.I have considered the submissions advanced and have gone

through the entire records.

13.The Affiliation of Colleges is regulated by the University of Calicut

Act,1975 enacted by the Kerala State legislature. For grant of affiliation, there

are statutes framed under the Act by virtue of Section 34 of the Act. The

statutes concerning the University of Calicut are known as Calicut University

First Statutes, 1975 (‘The First Statutes’, for short). Chapter 23 of the First

Statutes deals with the affiliation of colleges. Section 56 of the Calicut

University Act, 1956 provides for affiliation of Colleges. The relevant provisions

of the Act, as well as the Statute, reads as follows :

S. 56. Affiliation of colleges:

(1) An application for affiliation to the University of any college or for

affiliation in new courses in any affiliated college shall be sent by the

educational agency to the Registrar within such time and in such manner

as may be prescribed by the Statutes.

(2) The terms and conditions of affiliation of a college or of affiliation in new

courses in an affiliated college and the procedure to be followed by the

Syndicate in granting such affiliation, including the period within which

the Syndicate shall consider an application under subsection (1) shall be

prescribed by the Statutes:

Provided that the Chancellor may, by notification in the Gazette for

reasons to be specified in the notification, extend the period within which

the Syndicate shall consider any application under sub-section (1),

whether such period has already expired or not, by such further period

not exceeding one year, as may be specified in such notification.

(3) Without prejudice to the generality of the provisions of sub-section (2)

such Statutes may provide for the pattern of staff, scales of pay and

2021/KER/31442

WP(C) NO. 5362 OF 2021 12

terms and conditions of service of members of the staff and admission

and selection of students for courses and examinations.

14.Chapter 23 of the First Statutes deals with the procedure for

affiliation. The relevant provisions are as follows.

CHAPTER 23 Affiliation of Colleges Procedure to be adopted in

granting affiliation of new college and in new courses

1. Date of application: Application for affiliation of a college or for

affiliation in additional subjects shall be addressed to the Registrar and

shall be forwarded to him not later than the 30th June in the case of

Professional Colleges other than Law and Training Colleges and the

31st of October in the case of all other colleges preceeding the

academic year in which the courses are proposed to be started.

Provided that late applications received upto 31st December of the

concerned year which are accompanied by a fine of Rs.1,000 (Rupees

one thousand only) for additional courses in existing colleges and of

Rs.2,000 (Rupees two thousand only) for new colleges shall also be

considered. Further provided that notwithstanding anything contained

in Statute I and application for affiliation of colleges and courses

received in the office within the time prescribed and found in order

shall be valid for two academic years.

2. Form of application: An application for affiliation of a new college shall

be furnished in Form 2.

3. Application for additional affiliation etc.: The application for affiliation in

additional subjects or for upgrading a college shall be made in Form 3.

Application for starting post-graduate courses and for seeking of

additional seats in existing courses shall respectively be made in Form

4 or 5 as the case may be.

4. Application to be made by whom:The applications for affiliation shall be

made in the case of Government Colleges by the Head of the

Department and in the case of Private Colleges by the Educational

Agency.

5.Application fee: The college management shall pay to the University as

application fee at the rate of Rs.2,500 (Rupees two thousand and five

hundred only) for affiliation of new courses in existing colleges and for

permanent increase of seats in existing courses and Rs.5,000 (Rupees

five thousand only) for affiliation of new colleges for the Inspection

2021/KER/31442

WP(C) NO. 5362 OF 2021 13

appointed by the Syndicate. In all other cases of commissions

appointed to inspect the colleges consisting of the members of the

University bodies and subject experts following an application made by

the respective colleges fee calculated at the rate of Rs.500 (Rupees

five hundred only) per member of the Inspection Commission shall be

remitted.

Procedure to be adopted by the Syndicate on receipt of

application for affiliation etc.

6. Power of the Syndicate to grant affiliation etc:- (1) All applications

seeking affiliation shall be considered by the Syndicate not later than

31st March preceding the Academic year in which the college/courses

are proposed to be started

(2) The Syndicate shall have power to affiliate any college within the

territorial jurisdiction of the University preparing students for degrees,

titles or diplomas of the University which satisfy the conditions

prescribed in the laws of University.

7. Procedure on receipt of application: The Syndicate may call for any

further information which it may deem necessary before proceeding

with an application, or may advise the management that the

application is premature or may decline to proceed with the application

if it is satisfied that the arrangements made or likely to be made before

the beginning of an academic year in which the courses are to be

started or the conduct of the courses are not sufficient or suitable, or if

the college has failed to observe the conditions laid down in respect of

any previous affiliation.

8. Local Enquiry : If the Syndicate decides to proceed with the

application, it shall direct a local enquiry to be made by the competent

person or persons appointed by it in this behalf provided that it shall

be competent for the Syndicate to dispense with the enquiry above

mentioned in the case of any subject or group of subjects in which it

does not, for special reasons to be recorded, consider a local enquiry

necessary.

9. Grant of Affiliation:

(a) The University may appoint a Commission to inspect the proposed

site of a new college/or to make a physical verification of the

facilities that may exist for starting the new college/ course, if the

application is considered favourably by the University. The

Commission will inspect the suitability of the proposed site, verify

2021/KER/31442

WP(C) NO. 5362 OF 2021 14

the title deeds as regards the proprietary right of the Management

over the land (and buildings, if any) offered, building

accommodation provided if any, assets of the Management,

constitution of the registered body and all other relevant matters.

Further action on the application shall be taken on receipt of the

report of this commission.

(b)The grant of affiliation shall depend upon the fulfillment by the

Management of all the conditions that are specified here or that

may be specified later for the satisfactory establishment and

maintenance of the proposed institution/courses of studies and on

the reports of inspection by the Commission or Commissions which

the University may appoint for the purpose.

(c)Unless all the conditions are fulfilled, before the commencement of

the academic year, no new college/or additional courses shall be

permitted to be started during that year.

(d) Educational agency/Management, the Principal or any other person

or persons on their behalf shall neither demand nor accept

donations from candidates for appointment to the staff and from

students for admission to the college.

(e) The Management shall be prepared to abide by such conditions and

instructions as regards staff, equipment, library, reading room,

play-grounds, hostels, etc., as the University may, from time to

time impose or issue in relation to the college.

(f) The Educational Agency/Management shall give an undertaking to

the University to carry out faithfully, the provisions of the

University Act, Statutes, Ordinances, and Regulations and the

directions issued by the University from time to time, in so far as

they are related to the college. The undertaking shall be endorsed

by the Principal of the college.

(g) After considering the report of the local enquiry, if any, and after

making such further enquiry as it may deem necessary, the

Syndicate shall decide after considering the report of the local

enquiry and also after ascertaining the views of the Government,

whether the affiliation be granted or refused, either in whole or in

part. In case the affiliation is granted, the fact shall be reported to

the Senate at its next meeting.

15.A perusal of the Act as well as the Statute reveal that a detailed

2021/KER/31442

WP(C) NO. 5362 OF 2021 15

procedure is prescribed prior to the grant of affiliation. The views of the

Government have also to be ascertained before deciding whether affiliation is to

be granted or refused, either in whole or in part. From the counter affidavit as

well as the submissions of the learned Senior Government pleader, it appears

that the petitioner institution was not accorded administrative sanction by the

Government for two reasons. The first reason being that the institution has not

secured the optimum NAAC score and NIRF ranking and the second reason

being the financial implications due to post creation.

16.Ext.P6 is the communication dated 18.9.2020 issued by the 1st

respondent to the Registrars of various Universities calling for applications for

new courses. In Ext.P6, it is stated that in the light of the discussions in the

meeting held on 16.9.2020, the instructions in the Government letter dated

9.9.2020 is amended to the following extent.

i)NAAC score and NIRF ranking are not insisted in colleges which in the

opinion of the University have the necessary infrastructure to start 4

year and 5 year programme.

ii)Proposals of colleges of Scheduled Castes Community Trust can also be

recommended even if unaccredited.

iii)The recommendations of KSHEC may also be considered by the

University.

17. It is in pursuance to Ext.P6 that an inspection was conducted as

mandated in the relevant statutes and Ext.P1 was issued by the 3rd respondent

2021/KER/31442

WP(C) NO. 5362 OF 2021 16

to the 1st respondent recommending the petitioner institution for commencing

two PG courses. In that view of the matter, there is no justification in refusing

administrative sanction on the ground that the petitioner is not having NAAC

score or NIRF ranking. Furthermore, in the reply affidavit, the petitioner has

listed the colleges affiliated with the various Universities in the State for which

sanction was accorded by the Government despite the fact that those colleges

did not have a valid NAAC accreditation. The said assertion of the petitioner has

not been controverted by the 1st respondent in any manner. The 1st

respondent is required to adopt the very same standards for all the institutions

in the State and act in a fair and reasonable manner. In that view of the

matter, the sanction could not have been refused on the ground that the

petitioner did not have NAAC score or NIRF ranking.

18.The second ground on which sanction was refused was that a grant

of sanction may entail creation of new posts and it would have financial

implications. In this context, it would be relevant to note that in Exts.P2, P3 and

P4 orders, as per which administrative sanction was accorded to various

colleges, it has been specifically stated that no post creation shall be allowed

for the courses till 2025 and classes should be run with guest faculties only. For

reasons best known to the 1st respondent, this aspect of the matter has not

been stated in the counter. If the grant of affiliation and sanction for

recommendation is being granted on the condition that no new posts shall be

created, there cannot be any justification in refusing recognition on that

2021/KER/31442

WP(C) NO. 5362 OF 2021 17

ground. In that view of the matter, non-grant of administrative sanction on the

ground that it would entail in the creation of new posts also cannot be

sustained.

19. In T.M.A. Pai Foundation (supra), it was held by the Apex Court

that the expression “education” in the articles of the Constitution means and

includes education at all levels, from the primary school level up to the

postgraduate level. It includes professional education. The expression

“educational institutions” was held to mean institutions that impart education,

where “education” is as understood hereinabove. The right to establish and

administer educational institutions is guaranteed under the Constitution to all

citizens under Articles 19(1)(g) and 26, and to minorities specifically under

Article 30. All citizens have a right to establish and administer educational

institutions under Articles 19(1)(g) and 26, but this right will be subject to the

provisions of Articles 19(6) and 26(a).

20.In P.A.Inamdar & Ors. v. State of Maharashtra & Ors.

[(2005) 6 SCC 537], it was held that Affiliation or recognition by the State or

the Board or the University competent to do so, cannot be denied solely on the

ground that the institution is a minority educational institution. However, the

urge or need for affiliation or recognition brings in the concept of regulation by

way of laying down conditions consistent with the requirement of ensuring

merit, excellence of education and preventing maladministration.

21.In Thirumuruga Kirupananda Variyar Thavathiru Sundara

2021/KER/31442

WP(C) NO. 5362 OF 2021 18

Swamigal Medical Educational & Charitable Trusts v. State of T.N.

[(1996) 3 SCC 15], it was held that the State Government could not refuse

Essentiality Certificate on policy considerations.

22.In State of Maharashtra v. Sant Buveneshwar Shikshan

Shastra Mahavidyalaya [(2006) 9 SCC 1], it was held that the right to

education covers primary as well as secondary education under Art.21A of the

Constitution of India and that the Government cannot refuse permission on

policy consideration.

23.In Jayagokul Educational Trust v. Commissioner and

Secretary to Government Higher Education Department [(2000) 5 SCC

231], it was held when the particular Statute merely required the University to

obtain the “views” of the State Government, the same could not be

characterised as requiring the “approval” of the State Government. If indeed,

the University statute could be so interpreted, such a provision requiring

approval of the State Government would be repugnant to the provisions of

Section 10(k) of the AICTE Act, 1987 and would again be void.

24.In State of Kerala v. M.G.M. College of Arts and Science

[2017 (3) KHC 965], a Division Bench was confronted with the question as to

whether the policy of the State that no new colleges and courses would be

allowed in the self-financing sector in the higher education field in the State

could be sustained. A learned Single Judge of this Court had set aside the

Government Order and it is in the said circumstances that the matter had come

2021/KER/31442

WP(C) NO. 5362 OF 2021 19

up before the Division Bench in an appeal filed by the State. It would be

illuminating to refer to paragraphs Nos.5 to 11 of the judgment.

5. We are not dealing with higher education given by technical institutions. We

are dealing with Arts and Science Colleges in general. The establishment of

such colleges is regulated by various State University Acts and one of them is

Mahatma Gandhi University Act, 1985 (the ‘Act’, for short) enacted by the

Kerala State legislature. This is an enactment pursuant to Entry 25 List III of

the Constitution, in relation to Education and Universities. If we refer to the

scheme of the Act, the Act clearly provides that no college or institution can

impart any education for the purpose of grant of degree except upon due

affiliation granted by a University within the jurisdiction of which, such

institution falls.

6. For grant of affiliation, there are statutes framed under the Act by virtue of

Section 35. The statutes concerning the Mahatma Gandhi University are

known as Mahatma Gandhi University Statutes, 1997 (the ‘First Statutes’, for

short). Chapter 23 of the First Statutes deals with affiliation of colleges. If we

refer to this chapter, we would see that any institution that requires affiliation,

would have to first set up the institution, then make an application to the

University for grant of affiliation. The University, after scrutinizing the

application, may call for further information and then, may appoint a

commission to inspect the new college, after physical verification, and submit

a report. Clause 9 of the Statutes in Chapter 23 reads as follows:

“9. Grant of Affiliation:

(1) The University may appoint a Commission to inspect the proposed site

of a new college or to make a physical verification of the facilities that

may exist for starting the new college/course, if the application is

considered favourably by the University. The Commission shall inspect

the suitability of the proposed site, verify the title deeds as regards the

proprietary right of the management over the land (and buildings, if

any) offered, building accommodation provided, if any, assets of the

Management, constitution of the registered body and all other relevant

matters. Further action on the application shall be taken on receipt of

the report of the Commission.

(2) The grant of affiliation shall depend upon the fulfillment by the

Management of all the conditions for the satisfactory establishment

and maintenance of the proposed institution/courses of studies and on

the reports on inspection by the commission or commissions which the

University may appoint for the purpose.

2021/KER/31442

WP(C) NO. 5362 OF 2021 20

(3) Unless all the conditions are fulfilled, before the commencement of the

academic year, no new college/or additional courses shall be permitted

to be started during that year.

(4) Educational agency/Management, the Principal or any other person or

persons on their behalf shall neither demand nor accept donations

from candidates for appointment to the staff and from students for

admission to the college.

(5) The management shall be prepared to abide by such conditions and

instructions as regards staff, equipment, library, reading room,

playgrounds, hostels etc., as the University may, from time to time,

impose or issue in relation to the college.

(6) The educational agency/Management shall give an undertaking to the

University to carry out faithfully, the provisions of the Act, Statutes,

Ordinances and Regulations and the directions issued by the

University, from time to time, in so far as they are related to the

college. The undertaking shall be endorsed by the Principal of the

College.

(7) After considering the report of the Commission and the report of the

local enquiry, if any, and after making such further enquiry as it may

deem necessary, the Syndicate shall decide, after ascertaining the

views of the Government also, whether the affiliation be granted or

refused, either in whole or part. In case affiliation is granted, the fact

shall be reported to the Senate at its next meeting.”

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

2021/KER/31442

WP(C) NO. 5362 OF 2021 21

improvement of infrastructure is concerned, it is for the University to see,

whether the standards are met. Now, once the University approves of the

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 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, and which

college is ideally suited for the student. In such matter, the Government

2021/KER/31442

WP(C) NO. 5362 OF 2021 22

should have a restrained approach. Leave the matter to the University to

decide.

25.This Court in M.G.M College of Arts and Sciences ( supra) had

held that as per the scheme of the Statutory provisions, the Government’s

interference is only at the end. As in the said case, the University has

conducted rounds of enquiries and inspections and they had found that

everything is in order and the college can be granted affiliation. It is thereafter

that Ext.P1 recommendation was issued. Unless there are some clear

deficiencies in the infrastructure or facilities, it will only result in a travesty of

justice to refuse sanction on unsustainable grounds. This Court has already held

that the reasons accorded for refusal to accord administrative sanction cannot

be sustained. As held by this Court, the Government can well recommend

proper compliance of the Statutes but it is for the University to ensure that the

standards are met. If the University thinks that the facilities in the institution

are such that affiliation can be granted then the Government cannot, for

unjustifiable and arbitrary reasons, refuse sanction. Unless good cause is

shown, it would have to be termed as arbitrary and a colourable exercise of

power. As reiterated by this Court, once power has been conferred on the

authorities under the University Statutes, the Government cannot override the

discretion of the University, because such a policy makes the entire statute

dealing with affiliation redundant. Such an action would affect the fundamental

rights of parties to receive education and to impart education. Education, as

2021/KER/31442

WP(C) NO. 5362 OF 2021 23

noticed in the beginning, is an integral part of life and liberty. Such a right can

be restricted not by a policy decision, but only by law and law means law made

by the competent legislature and not by executive fiat. It is the students and

their parents and also their guardians, who would decide where to go, which

course they would follow, and which college is ideally suited for the student. In

such matters, the Government should have a restrained approach.

26.In view of the discussion above, I am of the considered opinion

that the petitioner is entitled to succeed. There will be a direction to the 1st

respondent to grant sanction/NOC for affiliation to the petitioner institution for

commencing M.Com and M.A.(English) for the Academic year 2021-2022 with

an intake of 15 seats each as recommended by the 2nd respondent as per

Exhibit P1. The sanction shall be accorded with a period of three weeks. On

receipt of sanction, the 2nd respondent shall grant affiliation for commencing

M.Com and M.A. (English) Course for the academic year 2021-2022 with an

intake of 15 seats each.

This writ petition will stand disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE

ps/25/8/2021

2021/KER/31442

WP(C) NO. 5362 OF 2021 24

APPENDIX OF WP(C) 5362/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE INTIMATION DATED

25/09/2020 FROM THE UNIVERSITY INTIMATING

THAT, M.COM AND M.A ENGLISH FOR THE

ACADEMIC YEAR 2020-2021 AND 2021-2022 IN

THE COLLEGE WITH AN INTAKE OF 15 EACH HAS

BEEN RECOMMENDED TO THE GOVERNMENT FOR

VIEWS/NOC FOR GRANTING AFFILIATION.

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 05/11/2020

ISSUED BY THE 1ST RESPONDENT, ACCORDING

ADMINISTRATIVE SANCTION FOR STARTING NEW

COURSES IN THE COLLEGES AFFILIATED TO THE

UNIVERSITIES IN KERALA.

EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED

26/11/2020, SUBMITTED BY THE PRINCIPAL OF

PETITIONER COLLEGE BEFORE THE 1ST

RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 17/02/2021

ISSUED BY THE 1ST RESPONDENT, ACCORDING

ADMINISTRATIVE SANCTION FOR STARTING NEW

COURSES IN THE COLLEGES AFFILIATED TO THE

UNIVERSITIES IN KERALA.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 25/02/2021

ISSUED BY THE 1ST RESPONDENT, ACCORDING

ADMINISTRATIVE SANCTION FOR STARTING NEW

COURSES IN THE COLLEGES AFFILIATED TO THE

UNIVERSITIES IN KERALA.

EXHIBIT P6 A TRUE COPY OF THE INTIMATION DATED

18/09/2020 GIVEN BY THE 1ST RESPONDENT TO

THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS:

NIL

2021/KER/31442