Kerala High Court
Dream Land Estate vs State Of Kerala on 4 July, 2016
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 21ST DAYOF DECEMBER 2016/30TH AGRAHAYANA, 1938
WP(C).No. 24872 of 2016 (H)
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PETITIONER(S):
-----------------------
DREAM LAND ESTATE,
CHOZHIKODE P.O., KULATHUPUZHA - 691 310,
KOLLAM DISTRICT, REG. NO.Q 14/06,
TRAVANCORE EDUCATIONAL AND CHARITABLE SOCIETY,
REPRESENTED BY ITS CHAIRMAN SHIJU M.,
JANNATH, KALLAMBALAM, THIRUVANANTHAPURAM - 695 605.
BY ADVS.SRI.ASOK M.CHERIAN,
SRI.R.ROHITH,
SRI.K.JANARDHANA SHENOY,
SRI.V.N.RAJAPPAN,
SRI.V.K.PRASAD.
RESPONDENT(S):
---------------------------
1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
THIRUVANANTHAPURAM- 695 001.
2. UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR,
PALAYAM, THIRUVANANTHAPURAM- 695 034.
R1 BY SRI.K.K. RAVINDRANATH, ADDL. ADVOCATE GENERAL.
R2 BY SRI.THOMAS ABRAHAM, SC
SRI.PAUL JACOB, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08/12/2016, ALONG WITH WP(C).NO.25001 OF 2016 AND
CONNECTED CASES, THE COURT ON 21/12/2016 DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 24872 of 2016 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 A COPY OF THE CHAPTER 24 OF THE UNIVERSITY FIRST STATUTES,
1977 WHICH DEALS WITH THE PROCEDURE TO BE ADOPTED
EXHIBIT P2 A COPY OF LETTER NO.AC.BII/02/38730/2016-17 DATED 04/07/2016.
EXHIBIT P3 A COPY OF THE LETTER NO.AC.BII/02/38407/2016-17
DATED 05/07/2016.
EXHIBIT P4 A TRUE COPY OF THE COVERING LETTER DATED 07/07/2016 OF THE
APPLICATION SUBMITTED BY THE PETITIONER TO THE
1ST RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.M. SHAFFIQUE, J.
===============
W.P. (C) Nos. 24872, 25001, 25183, 25782, 26026,
26111, 26325, 26331, 26401, 26492, 26493, 26781,
26782, 26783, 26784, 26785, 26786, 26787, 26941,
27005, 27417, 27439, 27440, 27463, 27602, 27615,
27618, 27973, 28401, 28686, 29054, 29055,
29095, 29196, 29247, 29248, 29249, 29499,
29650, 29761, 30187, 30287, 33316, 34184,
34494, 34507, 35811, 35268, 37124, 37297,
37447, 37978, 38815, 38119, 38360/2016
==============================
Dated this, the 21st day of December, 2016
J U D G M E N T
These cases concern a common issue where the petitioners challenge Government Order dated 22/8/2016 by which a decision had been taken by the Government not to permit new Arts and Science Colleges or courses. In WP(C) Nos. 24872, 25001, 25183, 26111, 26325, 26401, 26492, 26493, 26781, 26941, 27005, 27417, 27463, 27973, 28401, 28686, 29248, 29499, 33316, 34184, 35268, 37978 and 38119/2016, petitioners seek for a direction to grant affiliation to start a new college during the academic year 2016-17. In WP(C) Nos. 25782, 26026, 26331, 26782, 26783, 26784, 26785, 26786, 26787, 27439, 27440, 27602, 27615, 27618, 29054, 29055, 29095, 29196, 29247, 29249, 29650, 29761, 30187, 30287, 34494, 34507, 35811, 37124, 37297, 37447, 38815 & 38360/2016, W.P(C) No.24872/16 & conn.cases -:2:- petitioners seek for a direction to grant affiliation to start new courses in an existing college.
2. The petitioners are institutions which have sought for affiliation from the respective Universities namely the Kerala University, Mahatma Gandhi University, Kannur University, Calicut University etc,. for affiliation for new colleges/new courses in existing colleges. In most of the cases, the University after having received the applications recommended to grant affiliation subject to the petitioners obtaining no objection certificate from the Government. When no action was taken by the University/Government in this regard, most of the petitioners approached this Court. By an interim order dated 9th September, 2016, this Court directed the University to obtain the views of the Government and to finalise the grant/rejection of the affiliation. The University placed reliance upon the Government Order dated 22/8/2016 and refused affiliation. It is in the said background that the petitioners have challenged the Government Order dated 22/8/2016 and seeks for appropriate directions to the University to grant affiliation without insisting for a no objection certificate W.P(C) No.24872/16 & conn.cases -:3:- from the Government.
3. The primary contention urged by the petitioners is that the Government Order dated 22/8/2016 is in violation of Art.19(1)
(g) of the Constitution of India and in respect of minority institutions Article 30(1) of the Constitution. It is submitted that every citizen has a fundamental right to start an educational institution as held by the Constitution Bench in T.M.A.Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]. It is further held that the right to establish an educational institution shall be regulated by such regulatory measures like maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal administration by those in charge of the management. It is contended that even if the Government is entitled to impose reasonable restrictions in terms of Article 19(6), it cannot be done by an executive order under Article 162 whereas it has to be made only by way of a legislation.
4. Certain minority institutions contended that the restriction imposed by the impugned order violates Article 30(1) of the W.P(C) No.24872/16 & conn.cases -:4:- Constitution of India.
5. It is further contended that the impugned order does not amount to a reasonable restriction, whereas it is a complete ban on new colleges and new courses which is clear negation of fundamental rights under Article 19(1)(g).
6. It is contended that the U.G.C. vide its 1st amendment Regulations, 2012, has clearly stated the eligibility criteria for temporary affiliation of Colleges by Universities by amending 2009 Regulations. Clause 4.9 of the amendment confers absolute power to the Syndicate/Executive Council of the University to decide grant or refusal of affiliation. The said amendment is binding upon all the Universities in India and therefore the Syndicate of the University is bound to take a decision without waiting for the formal views of the Government as the views of the Government is not binding upon the Syndicate. Hence, the policy decision dated 22/8/2016 of the Government has no relevance at all in the matter of affiliation of colleges or courses. The University is bound to consider only whether the applicants satisfy the criteria stipulated by the U.G.C. The contention urged W.P(C) No.24872/16 & conn.cases -:5:- is that impugned order is ultra vires the University Grants Commission Act, 1956, which is a Central Act.
7. Yet another contention is that the impugned order has not been issued in accordance with the business rules.
8. On the other hand, learned counsel appearing for the University submitted that as far as the University is concerned, they are bound to take note of the views of the Government as per the relevant statutes and when the Government had expressed its view in terms of the order dated 22/8/2016, Universities are bound to consider the same and take an independent view in the matter. Denial of affiliation was only after taking note of such eventualities.
9. Learned Additional Advocate General appearing on behalf of the State supported the order. It is contended that, as per the relevant University Statutes, University is bound to obtain the views of the Government. The Government is entitled to take note of various factual situations in the State for permitting new Arts and Science Colleges to come up either in the unaided sector or in the aided sector. Unless the State is of the view that there is a W.P(C) No.24872/16 & conn.cases -:6:- necessity for starting new colleges or new courses, the State will have to frame a policy in that regard and therefore, the impugned order can only be termed as a policy of the Government which is the view of the Government in terms of the University Statute. Learned Additional Advocate General also placed reliance on various judgments to make a distinction between the power of the State vis-a-vis regulations framed under a Central Act. It is submitted that the Apex Court in T.M.A.Pai Foundation (supra) and other judgments had approved the right of citizens to start an educational institution of their choice. However, the Government is entitled to impose reasonable restrictions in respect of such rights and by the Government Order dated 22/8/2016, the Government had only imposed such restrictions taking into account the present educational scenario of the State.
10. Both sides relied upon various judgments which I shall consider while deciding the issues involved in the case. The issues which arise for consideration in the above writ petitions can be categorized as under:-
(i) Whether the petitioners have a fundamental right to W.P(C) No.24872/16 & conn.cases -:7:- set up educational institutions or conduct additional courses under Article 19(1)(g) of the Constitution of India?
(ii) Whether the Government Order dated 22/8/2016 amounts to a reasonable restriction under Article 19(6) of the Constitution of India or is it unconstitutional and void?
(iii) Whether the impugned order amounts to infringement of the right of religious denomination to establish and maintain and administer the educational institution as provided under Article 30(1) of the Constitution of India?
(iv) Whether the impugned order is ultra vires the provisions of University Grants Commission Act?
(v) Whether the impugned order amounts to a policy matter of the Government which could be interfered by this Court in a writ petition?
(vi) Whether the impugned order is illegal and unenforceable for any other reasons?
11. Learned counsel for the petitioners placed reliance on the following judgments to substantiate their contentions.
12. In T.M.A.Pai Foundation (supra), it was held that the W.P(C) No.24872/16 & conn.cases -:8:- 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" means 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). In Rev.Sidharjbhai Sabbai and others v. State of Gujarat and another, (AIR 1963 SC 540 (CB), it was held that the right established by Art.30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by W.P(C) No.24872/16 & conn.cases -:9:- so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. In P.A.Inamdar & Others v. State of Maharashtra and Others (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. In Thirumuruga Kirupananda Variyar Thavathiru Sundara 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. In State of Maharashtra v. Sant Buveneshwar Shikshan Shastra Mahavidyalaya, reported in [(2006) 9 SCC 1], it was held that right to education covers primary as well as secondary education under Art.21A of the Constitution of India and that the Government cannot refuse W.P(C) No.24872/16 & conn.cases -:10:- permission on policy consideration. In Jayagokul Educational Trust v. Commissioner and Secretary to Government Higher Education Department [(2000) 5 SCC 231], at paras 21 and 22, it is held as under:-
"21. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause 9 of the statute required "verification of the facilities that may exist for starting the new colleges/course". The Commission was to inspect the 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. Sub-clause (2) of clause 9 stated that the affiliation "shall depend upon the fulfilment by the management of all the conditions 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".
22. As held in T.N. case the Central Act of 1987 and in particular, Section 10(k) occupied the field relating to "grant of approvals" for establishing technical institutions and the provisions of the W.P(C) No.24872/16 & conn.cases -:11:- Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular Statute 9(7), they merely required the University to obtain the "views" of the State Government. That 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. As pointed out in T.N. case there were enough provisions in the Central Act for consultation by the Council of AICTE with various agencies, including the State Governments and the universities concerned. The State-Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in T.N. case it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be W.P(C) No.24872/16 & conn.cases -:12:- imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for "approval" of the State Government."
In Ahmedabad St. Xavier's College Society v. State of Gujarat, [(1974) 1 SCC 717], para 18 is relevant, which reads as under:-
"18. This Court in State of Kerala v. Very Rev. Mother Provincial, explained the necessity and importance of regulatory measures of system and standard of education in the interest of the country and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly W.P(C) No.24872/16 & conn.cases -:13:- pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30.
Reliance is placed upon the judgment in St Joseph's Hospital Trust v. Kerala University of Health Sciences (2012 (4) KLT
444) to contend that the entire issue is covered by the said judgment. Lisie Medical and Educational Institutions v.
State of Kerala (2007 (1) KLT 409) is also relied upon in which this Court considering the validity of certain provisions of the Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation or Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 struck off certain provisions as W.P(C) No.24872/16 & conn.cases -:14:- unconstitutional.
13. It is argued on behalf of the State that the University Act itself amounts to a Law, which imposes restriction in starting new colleges/courses and therefore when the views of the Government is sought for, Government can formulate a policy, which is reflected in the impugned order. It is contended that Jaya Gokul Educational Trust v. Commisssioner [(2000) 5 SCC 231] cannot be made applicable to the facts. In that case, the Apex Court had held that when AICTE has granted approval for starting an Engineering College by invoking the powers under the All India Council for Technical Education Act, 1987 (for short AICTE Act), the views of the State to be obtained by the University under the University Statute cannot be interpreted to mean that it requires an approval from the State Government. If such an interpretation is taken, it would be repugnant to the provisions of Section 10(k) of the AICTE Act. It is argued that the said judgment will not have any application to the facts of the present case since there is no conflict between the Government offering an opinion regarding the starting of undergraduate courses which are the subject W.P(C) No.24872/16 & conn.cases -:15:- matter herein as there is no Central enactment covering the field. Reference is made to judgment in Government of Andhra Pradesh and another v. J.B. Educational Society and another [(2005) 3 SCC 212]. In that case, Apex Court approved the right of the State Government to enact a law taking into account the local needs. The question considered was whether certain provisions of the Andhra Pradesh Education Act, 1982 which obtained the assent of the President of India was repugnant to AICTE Act. It was held at para 12 as under:-
"12. Thus, the question of repugnancy between the parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override W.P(C) No.24872/16 & conn.cases -:16:- even such State legislation."
Still further, it was mentioned at para 21 as under:-
"21. The educational needs of the locality are to be ascertained and determined by the State. Having regard to the Regulations framed under the AICTE Act, the representatives of the State have to be included in the ultimate decision-making process and having regard to the provisions of the Act, the writ petitioners would not in any way be prejudiced by such provisions in the A.P. Act. Moreover, the decision, if any, taken by the State authorities under Section 20(3)(a)(i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission. Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of the AICTE Act and it is constitutionally valid."
It is argued that the educational needs of the locality in the State is well within the domain of the State Legislature and when the State can legislate on the said subject, necessarily the State can have a policy as well. An unreported judgment in WP(C) No. 2554/2013 is relied upon wherein I had occasion to consider an issue relating to a question as to whether a moratorium in granting no objection certificate issued by the Government to Self W.P(C) No.24872/16 & conn.cases -:17:- Financing Engineering Colleges in the State was valid or not. While considering the said case, I had occasion to rely upon the various statutory provisions and the judgments relating to it and it was held that if the State has the power to legislate, necessarily it can frame a policy which is not inconsistent with the provisions of the AICTE Act. Reliance is placed to the judgment in St.Joseph's Hospital Trust (supra), wherein the Division Bench of this Court held that there is no law made by the State of Kerala for providing its consent. The State's executive power is co-extensive with its legislative power. Unless its executive power is used in violation of a fundamental right under Article 19 or any provision in the Constitution, the executive power can be resorted to. Reference is made to judgment in Dharam Dutt and Others v. Union of India and Others [(2004) 1 SCC 712]. This judgment is relied upon to emphasise as to what would be the permissible reasonable restrictions on rights guaranteed under Article 19(1) of the Constitution. It was held at para 37 as under:-
"37. The Court, confronted with a challenge to the constitutional validity of any legislative enactment by reference to Article 19 of the Constitution, shall W.P(C) No.24872/16 & conn.cases -:18:- first ask what is the sweep of the fundamental right guaranteed by the relevant sub-clause out of sub- clauses (a) to (g) of clause (1). If the right canvassed falls within the sweep and expanse of any of the sub-clauses of clause (1), then the next question to be asked would be, whether the impugned law imposes a reasonable restriction falling within the scope of clauses (2) to (6) respectively. However, if the right sought to be canvassed does not fall within the sweep of the fundamental rights but is a mere concomitant or adjunct or expansion or incidence of that right, then the validity thereof is not to be tested by reference to clauses (2) to (6). The test which it would be required to satisfy for its constitutional validity is one of reasonableness, as propounded in the case of V.G. Row or if it comes into conflict with any other provision of the Constitution."
In Ugar Sugar Works Ltd v. Delhi Administration and Others [(2001) 3 SCC 635], the Apex Court was considering the scope of judicial review in policy decisions of the State . It is held at paras 18, 22 and 23 as under:-
"18. The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless W.P(C) No.24872/16 & conn.cases -:19:- the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."
"22. The State has every right to regulate the supply of liquor within its territorial jurisdiction to ensure that what is supplied is "liquor of good quality" in the interest of health, morals and welfare of the people. One of the modes for determining that the quality of liquor is "good" is to ascertain whether that particular brand of liquor has been tested and tried extensively elsewhere and has found its acceptability in other States. The manner in which the Government chooses to ascertain the factor of higher acceptability, must in the very nature of things, fall within the discretion of the Government so long as the discretion is not exercised mala fide, unreasonably or arbitrarily. W.P(C) No.24872/16 & conn.cases -:20:- The allegations of mala fide made in the writ petition are totally bereft of any factual matrix and we, therefore, do not detain ourselves at all to consider challenge on that ground. In fairness to the learned counsel for the petitioner we may record that challenge to notification on grounds of mala fide was not pressed during arguments. Laying down requirement of achieving Minimum Sales Figures of a particular brand of liquor in other States, as a mode for determination of the "acceptability" of that brand of liquor, is neither irrelevant, nor irrational nor unreasonable. It appears that prescription of MSF requirement is aimed at allowing sale of only such brands of liquor which have been tested, tried and found acceptable at large in other parts of the country.
23. The policy objective as reflected in the impugned notification is to provide liquor of good quality in Delhi. The executive policy to determine whether a particular brand of liquor is of good quality or not, on the basis of larger acceptability of the particular brand in other parts of the country, appears to us to be a fair and relevant mode. The manner for determining whether a particular brand of liquor has acquired larger acceptability or not so as to qualify for it being "liquor of good quality" has to be decided by the State in its discretion so long as the manner adopted by the State is "just, fair and reasonable".
It is not in dispute that the criteria of MSF is being W.P(C) No.24872/16 & conn.cases -:21:- uniformly applied and no pick-and-choose policy has been adopted by the State in that behalf. Learned counsel for the petitioners has been unable to convince us that fixation of MSF requirements as a criteria for such determination is in any manner "unfair, irrational or unreasonable".
State of Rajasthan and Others v. Lata Arun [(2002) 6 SCC 252], is also a decision in which the Apex Court was considering the extent of interference to policy decision which prescribed minimum educational qualifications for admission to a course and recognizing certain educational qualification as equivalent to or higher than the prescribed one. It was held at para 10 as under:-
"10. The points involved in the case are twofold:
one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It is not for courts to determine whether a particular educational qualification possessed by a candidate should or W.P(C) No.24872/16 & conn.cases -:22:- should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates."
Reference is also made to the judgment in Parshvanath Charitable Trust v. All India Council for Technical Education [(2013) 3 SCC 385]. That was a case in which the Apex Court considered the necessity for fixing a time limit for completion of admissions. It was held that all admissions are to be completed within a time frame. This judgment was delivered in the background of the admissions under the AICTE Act. In State of Kerala v. Adithikutty Amma [2010 (4) ILR (Ker) 572], Division Bench of this Court had occasion to consider the question W.P(C) No.24872/16 & conn.cases -:23:- relating to retirement age of employees in the Warehousing Corporation. It was held that if recommendation of the Board is rejected, there is no reason for the Government to show a separate reason since it is a policy matter of the Government. It is further submitted that as against the judgment of this Court in WP (C) No. 13371/2012 (St.Joseph's Hospital Trust) (supra), State Government preferred an appeal before the Apex Court. By order dated 3/7/2014, the Special Leave Petition was disposed of observing that while not interfering with the impugned order, it is clarified that for the future grant of affiliation for the subsequent session, the University and other authorities shall consider the application of institutes/colleges being uninfluenced by observation made by the Division Bench of the High Court. In State of Orissa v. Radheyshyam Meher and Others [(1995) 1 SCC 652], the Apex Court considered the scope of judicial review with reference to a matter relating to public policy and it was held that when the Government takes a decision to start a medical store within the hospital campus, being a policy matter, the High Court should not have interfered with such W.P(C) No.24872/16 & conn.cases -:24:- administrative decisions of the Government taken in public interest. In Khoday Distilleries Ltd. and Others v. State of Karnataka and Others [(1995) 1 SCC 574], the Apex Court was considering as to what is law and the restrictions that could be placed by subordinate legislation or executive order and it was held at paras 60 and 64 as under:-
60. We may now summarise the law on the subject as culled from the aforesaid decisions.
(a) The rights protected by Article 19(1) are not absolute but qualified. The qualifications are stated in clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitutions of the other civilized countries are not absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by clauses (2) to (6) of Article 19 of our Constitution.
(b) The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are W.P(C) No.24872/16 & conn.cases -:25:- immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium, (outside commerce). There cannot be business in crime.
(c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited.
(d) Article 47 of the Constitution considers intoxicating drinks and drugs as injurious to health and impeding the raising of level of nutrition and the standard of living of the people and improvement of the public health. It, therefore, ordains the State to bring about prohibition of the consumption of intoxicating drinks which obviously include liquor, except for medicinal purposes.
Article 47 is one of the directive principles which is fundamental in the governance of the country. The State has, therefore, the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and also because of the directive principle contained in Article 47, except when it is used and consumed W.P(C) No.24872/16 & conn.cases -:26:- for medicinal purposes.
(e) For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19(6) or even otherwise.
(f) For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and limitations on the trade or business in potable liquor can again be both under Article 19(6) or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licences to do trade or business in the same, to others.
(g) When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business.
(h) The State can adopt any mode of selling the licences for trade or business with a view to W.P(C) No.24872/16 & conn.cases -:27:- maximise its revenue so long as the method adopted is not discriminatory.
(i) The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and Article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restrict and regulate production, supply and consumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business.
(j) The mere fact that the State levies taxes or fees on the production, sale and income derived from potable liquor whether the production, sale or income is legitimate or illegitimate, does not make the State a party to the said activities. The power of the State to raise revenue by levying taxes and fees should not be confused with the power of the State to prohibit or regulate the trade or business in question. The State exercises its two different powers on such occasions. Hence the mere fact that the State levies taxes and fees on trade or business in liquor or income derived from it, does not make the right to carry on trade or business in liquor a fundamental right, or even a legal right when such trade or business is completely prohibited.
(k) The State cannot prohibit trade or business in medicinal and toilet preparations containing liquor W.P(C) No.24872/16 & conn.cases -:28:- or alcohol. The State can, however, under Article 19(6) place reasonable restrictions on the right to trade or business in the same in the interests of general public.
(l) Likewise, the State cannot prohibit trade or business in industrial alcohol which is not used as a beverage but used legitimately for industrial purposes. The State, however, can place reasonable restrictions on the said trade or business in the interests of the general public under Article 19(6) of the Constitution.
(m)The restrictions placed on the trade or business in industrial alcohol or in medicinal and toilet preparations containing liquor or alcohol may also be for the purposes of preventing their abuse or diversion for use as or in beverage."
"64. The last contention in these groups of matters is whether the State can place restrictions and limitations under Article 19(6) by subordinate legislation. Article 13(3)(a) of the Constitution states that law includes "any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law". Clauses (2) to (6) of Article 19 make no distinction between the law made by the legislature and the subordinate legislation for the purpose of placing the restrictions on the exercise of the respective fundamental rights mentioned in Article 19(1)(a) to (g). We are concerned in the W.P(C) No.24872/16 & conn.cases -:29:- present case with clause (6) of Article 19. It will be apparent from the said clause that it only speaks of "operation of any existing law insofar as it imposes ..." "from making any law imposing"
reasonable restrictions on the exercise of the rights conferred by Article 19(1)(g). There is nothing in this provision which makes it imperative to impose the restrictions in question only by a law enacted by the legislature. Hence the restrictions in question can also be imposed by any subordinate legislation so long as such legislation is not violative of any provisions of the Constitution. This is apart from the fact that the trade or business in potable liquor is a trade or business in res extra commercium and hence can be regulated and restricted even by executive order provided it is issued by the Governor of the State. We, therefore, answer the question accordingly."
14. Coming to the first three questions, it is rather clear that Article 19(1)(g) confers upon all the citizens to practice any profession or to carry on any occupation trade or business. The majority community as well as the religious minorities will have such a right under Articles 19(1)(g) and 26 to establish educational institutions and Art.30(1) gives the right to the religious minorities to establish and administer educational W.P(C) No.24872/16 & conn.cases -:30:- institutions of their choice. In T.M.A. Pai Foundation (supra), the Constitution Bench held that the establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff and an activity is carried on, that results in imparting of knowledge to the students, it must necessarily be regarded as an occupation, even if there is no element of profit generation. Therefore, occupation would be an activity of a person undertaken as a means of livelihood or a mission in life. Having found so, the question is whether the impugned order amounts to a reasonable restriction in terms of Article 19(6). One argument is that in so far as the impugned order is not a legislative function, it cannot amount to be a reasonable restriction as provided under Article 19(6). In St.Joseph's Hospital Trust (supra), a Division Bench of this Court after having relied upon the judgment of the Apex Court in Bijoy Manual and Others v. State of Kerala and others [1986 KLT 1037 (SC)] and State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others [(2006) (2) SCC 545] held that it is beyond the scope of any doubt that if W.P(C) No.24872/16 & conn.cases -:31:- the right under Article 19 is to be enforced upon by way of reasonable restrictions, on the fundamental right, it can be achieved only by a law and the word law as it stands interpreted will not embrace within its scope an executive instruction even if it is one under Article 162 of the Constitution. Therefore, there is justification on the part of the petitioners in contending that the impugned order cannot be sustained on the ground of it being a reasonable restriction. Therefore, I am of the view that the impugned order is not such a law which can be termed as a reasonable restriction in terms of Article 19(6).
15. But, as rightly contended by the learned Additional Advocate General, the law has been framed in terms of the University Statutes which regulates and restricts the right of citizens to get affiliation of the Colleges/Courses they intend to start and necessary statutory provisions had been incorporated to make such regulation. Therefore, it is clear that the right of the petitioners to start educational institutions/ additional courses is not unfettered.
16. There is no dispute among the parties with reference W.P(C) No.24872/16 & conn.cases -:32:- to the right of the University to regulate affiliation of any College/Courses in respect of the University.
17. For easy reference, I am only referring to Statute 9(7) of Chapter 23 of the Mahatma Gandhi University Statutes, which clearly indicates that the University before granting affiliation to any College or to any course shall obtain the views of the Government.
"9. Grant of Affiliation:- (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."
18. Several judgments had been relied upon before this Court wherein the issue considered was regarding the scope of interference of the Government in the matter relating to starting of courses in which approval had been granted by the AICTE. The said judgment stands in a different footing. If we look at the judgments in Jaya Gokul (supra), St.Joseph's Hospital Trust W.P(C) No.24872/16 & conn.cases -:33:- (supra), the unreported judgment in WP(C) No. 2554/2013 etc., the issue considered was, when approval is already granted by the AICTE, whether State Government can impose any other conditions or refuse approval. The propositions have now been well settled that when approval has been granted by AICTE, the expression of views by the Government in terms of Statute 9(7), is of a limited nature. It was held that if taking the views of the Government in the University Statute, before granting affiliation, is interpreted to mean that the Government must give its approval, then such a statutory provision would be void. But in the case on hand, we are not concerned with a Central Statute which is in conflict with any statute framed by the Government. Here, we are concerned with a State Act which requires the University to obtain the views of the Government. The question is whether the views of the Government can be formulated by way of an order and can the Government have a policy of the like nature.
19. No doubt, the Government can have a policy in respect of the views to be expressed by them, but such policy cannot be W.P(C) No.24872/16 & conn.cases -:34:- in violation of any of the fundamental rights available under the Constitution.
20. The policy which is brought in the form of a notification reads as under:-
")JxUm X"XmE^HJm )KD U_Fc^Mc^Xx"7Jm IaD_O Xb^dVO g5^g{<a5{b" g5^]mXa5{b" %HaUF_AaKDm X"Lt_:nm U_WO" Ix_gV^G_Aa5Oa" :aUf? IyOa"
dI5^x" IaDaA_O N^VPH_VgiVBZ IayfM?aU_:nm )JxU^5a5Oa" f:OnaKa.
1. X"XmEHJm %Y.O_AAm fXWKm hKH^XXm gN6\O_W IaD_O g5^g{<a5Z Da?B^X %HaND_ HW5aKD\o.
2. 7Ufpam/.OmAAm g5^g{<a5{_W %G_5 DXq_5 XcWm?_A^fD, H_\U_\aU %Gc^I5fx )IgO^7_:na" H_\U_\aUeMlD_5 X^Y:xc"
)IgO^7fM?aJ_Oa" IaD_O g5^]mXa5Z Da?B^X 5]_OafNC_W %Jx" %gIf5Z Ix_7C_AaKD^Ca.
3. .O_AAmeg5^g{<a5{_W IaD_O %Y.O_AAm _ Xb^dVO g5^]mXa5Z %HaUF_:m:aeHW5aKD\o.
4. H_\U_\aU %Y .O_AAm/fXWKm hKH^XXm g5^g{<a5{_W 5]_E %GcOH UVW" &x"M_:m:a W.P(C) No.24872/16 & conn.cases -:35:- &FcUVW" IbVJ`5x_:m:UOmAm %?aJ %GcOHUVWgJAm Da?V:n^HaND_ HW5^X H?I?_ h5fA^UaKD^Ca.
5.e( %GcOH UVW" A_d7` dIgUVH" \M_A^fD U_Fc^VE_5Z dIO^XfM?aK UXqaD gL^GcfMG_GaU X^Y:xcJ_WeH_\U_\aU %Y .O_AAmeXb^dVO g5^g{<a5{_W &UVcNaU If" 2015_16 %GcOH UVW" XVU5\^V^\5Z VaI^VV f:Oq g5^]mXa5ZAm N^dD" %HaND_ HW5aKDa X"Lt_:n 5^xc" XVA^V Ix_gV^G_AaKD^Ca."
Perusal of the notification would show that the Government had taken a decision not to give permission to any self financing institution to start new college, no new courses in aided/ Government colleges and no unaided courses in aided colleges. In other words, there is a blanket restriction to start new colleges and new courses in the State in the aided/unaided sector. However, the Government is of the view that Government is aware of the fact that during the previous year, several candidates could not get admission to the Colleges. It was therefore decided to permit colleges to have additional courses W.P(C) No.24872/16 & conn.cases -:36:- which has already been permitted by the University during the previous academic year. The learned Additional Advocate General submits that this is the view of the Government taking into consideration the over all necessity of colleges/courses in the State. He specifically refers to the judgment of the Apex Court in J.B.Educational Society (supra), wherein the Apex Court upheld the provisions of the Andhra Pradesh Education Act, 1982 which permitted the Government to satisfy itself that there is need for providing education facilities to the people in the locality. In the said case, the Apex Court approved the said provision as not being repugnant to the provisions of the AICTE Act on the ground that the State legislation obtained the assent of the President. In any case, such a law has not been enacted in the State and as already stated, this writ petition is concerned with the limited extent of power that could be exercised by the State by providing its views to the University.
21. As far as the University is concerned, affiliation to a college/course is granted based on the institution complying with various statutory requirements. Once there is compliance of such W.P(C) No.24872/16 & conn.cases -:37:- statutory requirements, what remains to be considered is regarding the view of the Government. In so far as there is no Central legislation in the subject, the view of the Government as far as the University is concerned is important. How could such a view be expressed? Though the Apex Court in Jaya Gokul (supra) held that the view does not amount to an approval, the said judgment had been rendered in the light of the provisions available under the Central Act which supersedes any other law on the subject. But in the case on hand, the word "view" can be taken as a decision to be taken by the Government to verify whether there is a necessity for such a college/course in the existing college. Such decision apparently will depend upon the facts and circumstances of each case.
22. In the cases on hand, these are institutions who have invested money for starting Colleges on the basis of a letter of consent issued by the University and now they are told that in view of the Government restrictions, no affiliation could be granted.
23. I am of the view that there cannot be a blanket W.P(C) No.24872/16 & conn.cases -:38:- restriction being imposed by the Government. It is argued on behalf of the State that the University Act itself amounts to a Law, which imposes restriction in starting new colleges/ courses and therefore when the views of the Government is sought for, Government can formulate a policy, which is reflected in the impugned order. Of course, the University Act and the Statutes framed thereunder apparently is a "law" in which the role of the Government is only to express its views. The expression of view cannot hinder the right of citizens fundamental right under Article 19(1)(g) of the Constitution of India. If the Government has a case that, there is no necessity for a college in a particular area, definitely Government can frame a law in that regard. The Government can also frame a law to indicate that the number of colleges can be restricted or the number of courses can be restricted. But there is no such law as matters stand today. By expressing a view and giving a blanket direction that no colleges could be started and when it is acted upon by the University, it clearly amounts to infringement of fundamental right of a citizen.
24. What exactly should be the view to be expressed by the W.P(C) No.24872/16 & conn.cases -:39:- Government in such situations may also arise for consideration. The view of the Government apparently is only an opinion. It is defined in the Oxford Advanced Learners Dictionary as a personal opinion or an attitude towards or to have different/conflicting/ opposing views. Definitely, when the views of the Government are sought for, it is open for the Government to inform their view about either starting of a College or additional courses in a college etc. But the said view cannot be an absolute restriction like the one stated in the impugned order. It has to be on the basis of a case to case basis depending upon various factors and if the view is not to permit a new College or a Course in an existing college, the reasons for the same is also to be reflected in such views. Therefore, I am of the view that the expression of view by the Government as required under the University Statutes has to be made on a case to case basis and not on the basis of an order which virtually affects the fundamental right of a citizen to start a college.
25. It is also argued that the University Statute which requires the University in obtaining the views of the Government W.P(C) No.24872/16 & conn.cases -:40:- is ultra vires the UGC Act. Even going by the judgment in Jaya Gokul (supra) and other Apex Court judgments, it is not found that obtaining the views of the Government is ultra vires the Statute. It is only held that if the meaning of the word "view" is given as a policy of the Government, or by getting an approval from the Government, such a reasoning would be void. Further, UGC Act virtually permits the University to conduct necessary enquiry in regard to the grant of affiliation to the College and there is no conflict between the UGC Act as well as the University statute. As already held by the Apex Court, requiring the view of the Government as per the University Statutes by itself does not amount to interference with the provisions of the AICTE Act. Hence, I do not think that the University statute in any case is ultra vires the UGC Act.
26. Yet another contention urged is that the impugned order is not placed before the Cabinet in terms with the business rules of the Government. I do not think it necessary to go into such details especially on my finding that the Government Order is liable to be set aside for other reasons.
W.P(C) No.24872/16 & conn.cases -:41:-
27. In the light of the above discussions, I am of the view the Government order dated 22/8/2016 is unconstitutional, affecting the fundamental right of the petitioners under Article 19 (1)(g) of the Constitution and infringing Article 30(1) as far as minority managements are concerned. Hence the respective Universities shall consider the application of the petitioners, in the light of the respective University statutes, in accordance with law.
In the result, these writ petitions are allowed. The impugned Government Order dated 22/8/2016 is declared as unconstitutional and void. The respective Universities shall reconsider the applications submitted by the petitioners and pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// P.S to Judge