IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15403 of 2009(U)
1. KODUVALLY MUSLIM ORPHANAGE COMMITTEE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE UNIVERSITY OF CALICUT,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/09/2009
O R D E R
ANTONY DOMINIC,J.
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W.P.(C).No.15403 OF 2009
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Dated this the 18th day of September, 2009.
JUDGMENT
Petitioner is a Charitable Society registered under the
Societies Registration Act. By Ext.P2 dated 20.10.2005, it applied
to the University for starting a B. Ed College. Subsequently, it
obtained Ext.P3 conditional recognition issued by the NCTE as
well. Thereupon the University, by Ext.P4, required the petitioner
to obtain concurrence of the State Government. Accordingly, the
Petitioner took up the matter with the State Government and
obtained Ext.P5 order dated 23.9.2008, according sanction for
starting B. Ed college.
2. Petitioner submits that, thereupon they entered into
seat sharing agreement with the Government and thereafter
Government issued Ext.P6 No Objection Certificate dated
18.10.2008. On the strength of Ext.P6 and enclosing the same,
petitioner submitted Ext.P7 dated 26.10.2008 requesting the
University to grant affiliation to the College. Thereupon
WP(c).No.15403/09 2
University by Ext.P8 reply intimated the petitioner that, during the
academic year 2008-09 no valid application submitted by the
petitioner was pending. According to the petitioner, this stand of
the University was apparently for the reason that the application
made by the petitioner remained valid only for a period of 2 years.
3. Petitioner again submitted Ext.P9 application and during its
pendency petitioner obtained Ext.P10 dated 19.1.2009, permanent
recognition granted by the NCTE, under the NCTE Act. Thereafter,
the University by Ext.P11 informed the petitioner that they did not
pay the application fee for Ext.P9. On its receipt petitioner remitted
the required fee and produced Ext.P12 chalan receipt along with its
letter dated 1.2.2009, a copy of which is also marked as Ext.P12.
Even thereafter there was no progress in the matter and therefore
this writ petition is filed with the following prayers.
“(a) Declare that the petitioner is entitled to run the B. Ed
course in Koduvally in Kozhikode District in the light of
Ext.P10 recognition granted by the NCTE and Ext.P6 NOC
granted by the State Government.
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction commanding the 2nd respondent
University to pass appropriate orders granting affiliation
to the B. Ed college as applied for in Exts.P2 and P9 in
the light of the recognition granted by NCTE and the
NOC granted by the State Government. “
WP(c).No.15403/09 3
4. University has filed a counter affidavit. The fact that the
petitioner had submitted Ext.P9 application, remitted the required
fee and produced Ext.P10 permanent recognition from the NCTE
are all admitted by the University. It is stated that on receipt of the
application, in terms of the University Statutes, an Inspection
Committee was appointed and that an enquiry was conducted by the
Inspection Committee. According to the University, on such
Inspection it was found that the Institution was not entitled to get
affiliation, for the reason that there are three other training colleges
in the same locality and that there are excess training colleges. It is
stated that in terms of the University Statutes, the condition to be
satisfied for grant of affiliation as provided in clause 23, is that the
commencement of the college is only to meet the educational need
of the locality. It is stated that there was no dearth of educational
institutions in the area and therefore the petitioner is not entitled to
the affiliation as sought.
5. Petitioner has filed a reply affidavit where existence of the
3 colleges in the locality mentioned by the University in paragraph
8 of its counter affidavit is denied. Irrespective of this factual
controversy learned Counsel for the petitioner relies on the Full
WP(c).No.15403/09 4
Bench judgment of this court in Vikram Sarabhai E. Trust & B. Ed.
College V. University of Calicut (2008(2)KLT 1027), rendered
referring to the Apex Court judgments in Jaya Gokul Educational
Trust V. Commissioner & Secretary to Government (2002(2)KLT
267), State of Maharashtra V. Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya (2006(9) SCC 1). In the judgment, after referring to
Section 14 of the NCTE Act, referring to paragraph 74 to 80 of the
judgment of the Apex Court in 2006(9) SCC-1 , the Full Bench held
that going by the statutory provisions there cannot be any doubt
that once NCTE grant recognition to the College, the University is
bound to grant affiliation to the College and that the affiliation
cannot be denied relying on the technical contention that the
application was not submitted in time.
6. In this context, paragraph 74 of the Apex Court judgment
in 2006(9)SCC-1) being relevant, reads as under;
“It is thus clear that the Central Government has
considered the subject of secondary education and
higher education at the national level. The Act of
1993 also requires Parliament to consider teacher
education system “throughout the country’. NCTE,
therefore, in our opinion, is expected to deal with
applications for establishing new B. Ed colleges or
allowing increase in intake capacity, keeping inWP(c).No.15403/09 5
view the 1993 Act and planned and coordinated
development of teacher education system in the
country. It is neither open to the State Government
nor to a University to consider the local conditions
or apply `State policy’ to refuse such permission.
In fact, as held by this Court in cases referred to
herein above, the State Government has no power
to reject the prayer of an institution or to overrule
the decision of NCTE. The action of the State
Government, therefore, was contrary to law and
has rightly been set aside by the High Court. ”
A reading of the aforesaid paragraph of the judgment, shows that
once the statutory requirement of recognition of the NCTE is
obtained, it is not open to the State Government or the University to
consider the local conditions or apply the State policy to refuse
affiliation to the college.
7. In the light of the binding judgment thus rendered by the
Apex Court and Full Bench of this court and also the statutory
provision contained in the NCTE Act, I am satisfied that the
objection raised by the University that the needs of the University
do not justify affiliation to the petitioner, is unsustainable and is
illegal.
Therefore, the writ petition will stand allowed and the
respondent University shall pass appropriate orders in Ext.P9
application submitted by the petitioner in the light of Ext.P10 and
WP(c).No.15403/09 6
in the light of the observations made herein above. This shall be
done as expeditiously as possible and at any rate within 6 weeks
from the date of production of a copy of the judgment.
(ANTONY DOMINIC)
JUDGE
vi/