IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30048 of 2008(B)
1. THE CHRISTIAN EDUCATIONAL TRUST,
... Petitioner
Vs
1. M.G. UNIVERSITY, KOTTAYAM,
... Respondent
2. THE VICE CHANCELLOR,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/04/2009
O R D E R
P.R.RAMACHANDRA MENON, J. (CR)
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W.P.(C) Nos. 30048 of 2008
and 33006 of 2008
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Dated, this the 7th day of April, 2009
J U D G M E N T
This is the 3rd or 4th round of litigation being pursued by the
petitioners in these cases to secure affiliation from the respondent
University for starting a new college/course. The application was being
turned down by the University due to some or other reason, which
according to the petitioners, is only with malafide exercise of power. For
convenience of reference to the sequence of events, W.P.(C) No. 30048 of
2008 is treated as the lead case.
2. The petitioner in W.P.(C) 30048 of 2008 sought for the affiliation of
the University to start a new college conducting B.Com with Computer
Application and such other courses simultaneously submitting all the
relevant testimonials in connection with the application. After considering
the application dated 26.09.2005 with respect to the year 2006 and 2007,
the University as per Exhibit P1 order dated 31.01.2007 informed the
petitioner that the University has recommended the course to the AICTE
and the Government of Kerala and that affiliation would be granted only
after the sanction/approval from the Government/AICTE and after fulfilling
all the conditions by the University with regard to the affiliation.
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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3. The stand taken by the University deferring the affiliation and that
too, after taking steps for approval of the Government was challenged by
the petitioner in W.P.(C) No.3827 of 2007, wherein Exhibit P2 interim order
was passed directing the University to consider the question of affiliation
without waiting for the views of the Government. In response to the above
interim order, Exhibit P3 proceedings were issued by the University stating
that the academic year 2006 – 2007 for which the affiliation was sought for,
was already over and hence the University was not in a position to grant
affiliation for the said period. Subsequently, the above writ petition was
finally heard by this Court passing Exhibit P4 judgment, whereby the
University was directed to consider the application already submitted by the
petitioner for the subsequent year 2007 – 2008 as well, without insisting on
the payment of affiliation fee once again. After considering the matter, the
University passed Exhibit P5 proceedings holding that the Syndicate
Standing Committee on Affiliation held on 09.08.2007 resolved to
recommend to the Syndicate, not to consider the application for starting
new colleges as the Committee suggested a feasibility study before starting
new colleges/courses.
4. However, it is the case of the petitioner that this was without any
regard to Exhibit P6 proceedings dated 31.05.2006 whereby the Syndicate
had already resolved to recommend to the Government to sanction a
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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maximum of 4 courses in a college during 2006 and 2007 among the
courses recommended. It is also discernible from Exhibit P6 itself, that out
of the list of new unaided Arts and Science colleges seeking affiliation
during 2006 – 2007, the name of the petitioner’s college is shown as serial
number ‘1’, simultaneously showing the course proposed to be started, for
which the affiliation was sought for. The petitioner has also remitted the
requisite fee for application for renewal on 31.01.2008 as borne by Exhibit
P7. Thereafter, the University issued Exhibit P8 order dated 12.06.2008,
whereby two different stands are seen taken, as reflected under clause (ii)
and (v) of the said order. Under clause (ii) it was decided to constitute
Inspection Commissions in respect of the institutions proposed to be
started ‘under the Government’, whereas in respect of other ‘unaided
institutions’, it was mentioned under clause (v) that the application need
not be considered for the four reasons stated there under; mainly referring
to the existing manpower inadequacy to cope up with the additional work
consequent on the sanctioning of the new unaided colleges.
5. Petitioner challenged Exhibit P8 proceedings before this Court by
filing W.P.(C) No.24074 of 2008 highlighting the inconsistent and arbitrary
stand of the University in dealing with the application submitted by the
petitioner and also pointing out that as per the Government Circular dated
25.07.2008 produced as Exhibit P9 in the present writ petition, in the case
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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of Arts and Science colleges, the management could seek the approval
from the concerned University itself.
6. In the meanwhile, the reasoning given by the University under
clause (v) of Exhibit P8, order as made applicable to another institution
was subjected to challenge by the said institution in W.P (C) No.18774 of
2008. After considering the facts and figures, this Court as per Exhibit P11
set aside the above reasoning, holding it as arbitrary and discriminatory
and accordingly, the University was directed to grant affiliation to the
courses for which the petitioner had filed application. The petitioner herein
placed reliance on the above decision in W.P.(C) 18774 of 2008; based on
which W.P.(C) 24074 of 2008 was disposed of, directing the University to
consider the matter in the light of the verdict passed in W.P.(C) No. 18774
of 2008 (simultaneously disposing the connected W.P.(C) No.26207 of
2008 filed by the petitioner in W.P.(C) No.33006 of 2008).
7. It is brought on record that Exhibit P11 verdict passed by this
Court was subjected to challenge from the part of the University by filing
W.A.No.2122 of 2008 which led to Exhibit P13 verdict passed by the
Division Bench in W.P.(C) No.33006/2008. However, based on the
statement made from the part of the concerned college (as observed in
paragraph 11 of the said verdict) conceding that, in so far as MBA course
was concerned, the respondent college would not commence the same
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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without obtaining the approval from AICTE, it was accordingly recorded
and consequential directions were issued to the University to grant
affiliation in respect of the courses except MBA which was only to be
considered after the college obtained proper approval from the AICTE as
made clear in the paragraph 14 of the said verdict.
8. Coming back to the case in hand, the University, pursuant to
Exhibit P10 order considered the matter and passed Exhibit P13 order
dated 24.09.2008 and Exhibit P11 dated the same day, in the connected
case, holding that the Syndicate in the meeting held on 16.09.2008 had
resolved not to grant affiliation to the new unaided Arts and Science college
as the University had already decided not to grant affiliation to new
colleges/courses and not to increase number of seats in unaided colleges
affiliated to the University during 2008 – 2009, which in turn have been
subjected to challenge in the the above writ petition.
9. The respondent/University has filed counter in both the cases
highlighting the necessity to have the views of the Government and to
abide by the same. It is stated therein that the Government, vide letter
dated 26.08.2008, have communicated their views stating that affiliation
shall be granted only to those colleges which signed an Agreement with the
Government as stipulated in Exhibit R1 (a) in W.P. (C) 30048 of 2008.
While stating that this was only one of the reasons which persuaded the
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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University to take a decision declining to grant affiliation, it is further stated
in the succeeding paragraph that it was also because of the lack of
sufficient manpower in the University to cope up with the additional
administration and other work if new colleges were to be granted affiliation.
The second limb of the above reasoning having been set aside by this
Court as per Ext.P12 judgment and confirmed by the Division Bench in
Exhibit P13 verdict, the only impediment for the University was with regard
to the want of affiliation/approval from the Government, particularly, in view
of the stipulation as to the necessity to execute an Agreement as stated in
Ext. R1 (a) issued by the Government.
10. Subsequent to the filing of the counter affidavit, the petitioner in
WP(C) No. 30048 of 2008 has filed a reply affidavit, also producing the
Ext.P14 Government Order dated 7.11.2008 granting sanction for starting
new Arts and Science colleges, subject to the condition specified therein
and Ext.P15 No Objection Certificate. The learned counsel for the
petitioner submits that the said proceedings were issued by the
Government pursuant to the Agreement executed by the petitioner as
stipulated by the Government in Ext. R1 (a). It is accordingly submitted that
the sole hurdle placed on the way of the petitioner also got removed and
hence that there is no rhyme or reason for the University to reject or refuse
to consider application for grant of affiliation any further. The learned
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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counsel for the petitioner also submits that the petitioner in WP (C )No.
33006 of 2008 also proposes to submit similar Undertaking and Agreement
as stipulated in Ext.R1(a) and that necessary proceedings in this regard
would be submitted within no time and on such an event, the matter is
liable to be considered by the concerned respondent.
11. The learned standing counsel appearing for the University
submits that the matter requires to be examined in a wider magnitude and
the credentials of the petitioner as to the availability of necessary
infrastructure are to be ascertained and confirmed; the earlier inspection
having been conducted way back in 2006. Learned counsel for the
petitioner referring to Ext.P12 report of the Committee constituted by the
University in this regard submits that the Committee engaged by the
University had inspected the entire infrastructure and it was only after
recording satisfaction, that the committee had recommended for granting
affiliation. It is pointed out that with regard to the case of the petitioner in
WP(C) No. 33006 of 2008 that even the University does not have any such
case regarding the infrastructure, which in fact is conceded by the
University as well. Learned counsel for the University referring to the
contents of Ext.P12 proceedings of the Committee, who conducted the
inspection, submits that the recommendation was made by the University
only on the basis of offer/undertaking to provide the necessary
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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infrastructure and not after satisfying the available infrastructure as on the
date of inspection. Paragraph 9 of Chapter 23 of the M.G. University First
Statutes 1997 dealing with the grant of affiliation shows that the inspection
and satisfaction are with regard to the availability of ownership of the
land/building, if any, the assets of the management, constitution of the
registered body and such other incidental aspects. Even otherwise, the
necessity to provide allocation of Teaching Staff and such other similar
aspects would come into consideration only after obtaining necessary
affiliation and it cannot be presumed that such Staff ought to have been
appointed prior to granting affiliation of the University. In any view of the
matter, the University is having sufficient power to see that the conditions
imposed while granting the affiliation are complied with by the Institution
and empowered to take appropriate steps even to cancel or suspend the
affiliation, in case any non compliance is reported; which is more so in view
of the stipulation as contained under the paragraphs 1912 and 1914 of the
said Statutes.
12. The learned standing counsel for the University also seeks to
place reliance on paragraph 1 under Chapter 23 of the above Statutes
stating that the application submitted by the petitioners cannot be deemed
as valid application, as it can only be regarded as ‘out of time’, as on date,
the same having been submitted for the year 2006-2007. It is also pointed
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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out that the maximum life period which can be given is only for two years.
In both the cases, applications for renewal have been submitted and
necessary renewal fees have already been remitted. Further, there is a
specific observation made by this Court while passing Ext.P10 judgment,
that the application submitted by the petitioner shall be considered with
respect to the subsequent years, taking note of the sequence of the events.
This being the position, the submission made from the part of the
University with regard to the date of application and also as to the doubted
absence of the infrastructure is without any pith or substance.
13. In view of the above discussion, it is very much relevant to note
that the petitioner in WP(C) No. 30048 of 2008 has already complied with
all the requisite steps for entertaining the application for affiliation including
execution of necessary agreement as contemplated under Ext.R1(a)
issued by the Government; as evident from Ext.P14 sanction and Ext.P15
No Objection Certificate given by the Government. However, the consistent
stand of the University (though proved inconsistent subsequently) as
revealed from Ext.P1 was that, affiliation would be granted only after
getting approval from the Government. Since the said requirement has
already been satisfied, there is no point in delaying the affiliation to be
given to the petitioner under any circumstances.
W.P.(C) Nos. 30048 of 2008 and
33006 of 2008
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14. In the above circumstances, the respondents are directed to
grant of affiliation to the petitioner in WP(C) No. 30048 of 2008 of course
subject to the conditions to be stipulated by the University. This exercise
shall be pursued and finalised within a period of two months from the date
of receipt of copy of this judgment.
15. With regard to the petitioner in WP(C) No. 33006 of 2008, as
already observed, the petitioner would execute and submit necessary
Agreement as stipulated in Ext.R1(a) produced by the University and as
agreed during the course of Hearing forthwith and on such an event, the
matter shall be considered in similar terms by the University as directed in
the connected case and necessary orders shall be passed granting
affiliation for the year 2009 – 2010 within the period as stated as above.
Both the writ petitions are allowed accordingly. No costs.
P.R.RAMACHANDRA MENON, JUDGE
kmd.