Kerala High Court
The State Of Kerala vs M.G.M College Of Arts And Science on 21 December, 2016
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939
WA.No. 236 of 2017 ()
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(AGAINST THE JUDGMENT IN WP(C).NO. 25782/2016 DATED 21/12/2016)
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APPELLANT/3RD RESPONDENT :
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THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY ADDL.ADVOCATE GENERAL SRI.K.K.RAVINDRANATH
GOVERNMENT PLEADER
RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 AND 2 :
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1. M.G.M COLLEGE OF ARTS AND SCIENCE,
PALLINADA, KADINAMKULAM, KANIYAPURAM.P.O.,
THIRUVANANTHAPURAM, REPRESENTED BY GEEVARGHESE
YOHANNAN CHARITABLE TRUST ITS MANAGER SUNIL KUMAR.
2. UNIVERSITY OF KERALA,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM-695 034.
REPRESENTED BY THE REGISTRAR.
3. THE VICE CHANCELLOR, UNIVERSITY OF KERALA,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM-695 034.
R1 BY ADVS. SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SMT.REENA THOMAS
SMT.NIGI GEORGE
SRI.T.K.NAVAS
R2 & R3 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 05-07-2017,ALONG WITH W.A.NO.1104 OF 2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
"C.R."
NAVANITI PRASAD SINGH, C.J.
&
RAJA VIJAYARAGHAVAN V., J.
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W.A. Nos.236, 917, 950, 1010, 1012, 1019, 1020,
1021, 1048, 1050, 1061, 1086, 1091, 1103, 1104,
1105, 1107, 1108, 1139, 1141, 1145, 1151, 1152,
1164, 1176, 1209, 1219, and 1337 of 2017
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Dated this the 5th day of July, 2017
JUDGMENT
Navaniti Prasad Singh, C.J.
State of Kerala alone is aggrieved by the judgment dated 21.12.2016 passed by the learned single Judge in W.P.(C) No.25782 of 2016 and analogous cases. These cases deal with the matter regarding affiliation of Arts and Science Colleges under different Universities in the State of Kerala. The Universities have not appealed against the judgment of the learned single Judge under appeals.
2. We have heard learned Additional Advocate General appearing for the State, learned standing counsel for the Universities and the learned counsel for the contesting respondents, who were the writ petitioners.
3. The facts and issues are simple. In challenge is G.O.(Rt) No. 178/2016/H.Edn. dated 22.08.2016 of the State Government WA.236/17 and contd. appeals -:2:- whereby, it has resolved that no new colleges and courses would be allowed in the self financing sector in the higher education field in the State. We may mention that this State is proud of 100% literacy, but that is not carried to the collegiate level. There is dearth of educational institutions at the higher level with a large number of students moving to other neighboring States for higher education. Yet, such a decision is taken by the Government. The learned single Judge has set aside the said Government order and rightly so in our view.
4. First, we may refer to the source of power of the State to take such a decision. It is too late in the day now to contend that right to education is not a part of fundamental rights, for, at last Article 21A of the Constitution has been brought in, but in a limited sense only. Notwithstanding that, can anyone consider life and liberty dehors education? Can anyone consider trade, commerce and business without education? Can anyone consider a livelihood without education? That being the foundation, then the right to provide education would also form a part thereof. If that be so, then that can only be taken away by law and not by mere executive fiat. Therefore, one must look for the source of authority so far as the WA.236/17 and contd. appeals -:3:- Government order aforesaid is concerned.
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 WA.236/17 and contd. appeals -:4:- 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.
(3) Unless all the conditions are fulfilled, before the commencement of the academic year, no new WA.236/17 and contd. appeals -:5:- 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. "
WA.236/17 and contd. appeals -:6:-
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 improvement of infrastructure is concerned, it is for the University to see, whether WA.236/17 and contd. appeals -:7:- 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 WA.236/17 and contd. appeals -:8:- 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 WA.236/17 and contd. appeals -:9:- 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 should have a restrained approach. Leave the matter to the University to decide.
For the reasons aforesaid, we are not inclined to interfere with the judgment of the learned single Judge under appeal. These appeals are dismissed.
Sd/-
Navaniti Prasad Singh, Chief Justice Sd/-
Raja Vijayaraghavan V., Judge krj.7/7 /true copy/ P.A to Judge