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2017 DIGILAW 1053 (KER)

Palakkunathu Foundation v. University of Kerala

2017-07-21

SHAJI P.CHALY

body2017
JUDGMENT : 1. The 1st petitioner is an Educational Agency and the 2nd petitioner is its Chairman and Managing Trustee. The Agency proposes to start a new Arts and Science College in Punalur, coming within the jurisdiction of the Kerala University. Material facts for the disposal of the writ petition are as follows: 2. The 1st petitioner submitted an application for affiliation of a new College at Punalur in August, 2015, with the intention of starting the college from the academic year 2016-17 onwards. According to the petitioners, along with the application, all relevant documents in accordance with the provisions of the University Act and Statutes were provided. After verifying the documents, the University returned the originals, evident from Ext.P1. Thereafter, as per Ext.P2 letter dated 20.04.2016, 2nd petitioner was directed to remit a sum of Rs.10,000/- as inspection fees to conduct the inspection with respect to the facilities provided by the college. The said payment was effected. Thereafter, on enquiry, petitioners were told that they have to pay a further sum of Rs.2,000/- as “application fee” for grant of NOC to the institution and a further sum of Rs.1,00,000/- as “inspection fee” for grant of NOC. Accordingly, the said payments were made, evident from Exts.P3 and P3(a) respectively. 3. That apart, it is stated that, consequent to the developments so taken place, petitioners were under the bonafide impression that the same were required formalities. However, on the very same day, without any further inspection, the University issued a “Letter of Consent”, evident from Ext.P4 dated 05.07.2016. Matters being so, since the petitioners were under an impression that to establish a new college, the letter of consent of the State Government is required, approached the Government for the same. Since nothing took place, petitioners have approached this Court, and an interim order was secured, whereby the University was directed to grant affiliation, evident from Ext.P5. 4. In spite of it, the University did not grant affiliation. However, the University has filed a counter affidavit, evident from Ext.P6. In Ext.P6, it is stated that the University had given favourable recommendation to the Government, and therefore, the application is valid for 2017-18 also, and the request for grant of affiliation would be considered after securing approval from the State Government. However, the University has filed a counter affidavit, evident from Ext.P6. In Ext.P6, it is stated that the University had given favourable recommendation to the Government, and therefore, the application is valid for 2017-18 also, and the request for grant of affiliation would be considered after securing approval from the State Government. Thereafter, Ext.P7 order was issued by the State Government dated 22.08.2016, declaring that a policy decision is taken not to grant any approval for any new College/Course in the Self Financing Sector. The same was conveyed to the petitioner as per Ext.P8 letter dated 29.11.2016 by the University. 5. The order of the Government was under challenge in W.P.(C) No.25001 of 2016 and other connected cases, and a judgment was rendered by this Court on 21.12.2016, whereby it is held that the order issued by the State Government is unconstitutional, being violative of Article 30(1) of the Constitution of India. It is informed that the State has filed an appeal against the same before a Division Bench of this Court, which was dismissed on 05.07.2017. Thereupon, petitioners have requested the University to expedite the matter and to grant affiliation to the petitioners’ new college, evident from Ext.P9. However, as per Ext.P10, the affiliation sought for is declined, stating that there are certain deficiencies in the facilities provided by the petitioners. Against which, Ext.P11 objection was submitted by the petitioners, and since there was no consideration, petitioners have filed this writ petition challenging Ext.P10 order and seeking other consequential reliefs. 6. Certain additional documents are produced by the petitioners viz., the inspection report, as Ext.P13 and the rejection order dated 29.06.2017, as Ext.P14. These are the background facts projected to secure the reliefs sought for in the writ petition, which are as follows: “(i) To issue a writ of certiorari or other appropriate order or direction to quash Ext.P10. (ii) To issue a writ of mandamus or other appropriate order or direction to direct respondents to grant affiliation to the Courses mentioned in Ext.P4, so as to enable the petitioners to commence classes from the academic year 2017-18 onwards. (iii) To grant such other reliefs as are just and proper in the nature of this case.” 7. A statement is filed by the respondent University refuting the claims and allegations made against the respondents. (iii) To grant such other reliefs as are just and proper in the nature of this case.” 7. A statement is filed by the respondent University refuting the claims and allegations made against the respondents. Among other contentions, it is stated that the application for affiliation of the petitioners’ college was considered, however, on inspection, it was found that certain defects are remaining. It is also stated that the Syndicate meeting has considered the interim order passed by this Court on 26.08.2016, and that the Syndicate at its meeting held on 27.10.2016 resolved to conduct further enquiry in the proposed colleges, and further inspection was conducted in which the inspection commission had recommended not to grant affiliation to the said colleges. The Syndicate at its meeting held on 19.11.2016 resolved not to proceed with the affiliation of new self financing colleges during 2016-17, in view of the Government Order dated 22.08.2016. Fact remains, the said order is not in force, consequent to the quashing of the same by a learned Single Judge of this Court, which is affirmed by the Division Bench in writ appeal. 8. Heard learned Senior Counsel appearing for the petitioners, Sri. Kurian George Kannanthanam and the learned Standing Counsel appearing for the University. Perused the documents on record and the pleadings put forth by the respective parties. 9. When this writ petition has come up for admission on 05.05.2017, an interim order was passed by this Court, directing the respondents to treat Ext.P10 as a show cause notice and to consider Ext.P11 objection preferred by the 1st petitioner to the same, and pass orders thereon within a period of three weeks from the date of receipt of a copy of the order. It was accordingly that Ext.P14 order is passed by the University dated 29.06.2017. 10. However, learned Senior Counsel for the petitioners has a case that even though an interim order was passed by this Court to treat Ext.P10 as a show cause notice, the same was not taken into account by the University and has passed the order overlooking the directions and without taking into account Ext.P11 objection submitted by the petitioners, for which also, there was a specific direction. 11. 11. Learned Standing Counsel for the University stoutly opposed the said contentions put forth by the learned Senior Counsel and submitted that, it was on the basis of the interim order passed by this Court only Ext.P14 order is issued. However, fact remains, the deficiencies pointed out in Ext.P10 was on the basis of an inspection conducted on 11.10.2016, and thereafter if the respondents have conducted the inspection, same would have found a place in Ext.P14. Moreover, the sole reason assigned in Ext.P8 order is the policy of the State not to grant new Self Financing Colleges or Self Financing Course and in the said order, no deficiency is pointed out with respect to the statutory infrastructure. Therefore, by passing the interim order dated 05.05.2017 in this writ petition, to treat Ext.P10 as a show cause notice, the authorities ought to have conducted a fresh inspection taking into account Ext.P11 objection in order to unravel the core issue raised by the petitioners therein. Having not done so, Ext.P14 order, in my considered opinion, suffers from the vice of illegality and arbitrariness. 12. Therefore, taking note of the respective submissions made across the Bar, I am of the considered opinion that the subject matter is to be re-considered in accordance with the directives issued by this Court as per the interim order dated 05.05.2017. Therefore, Ext.P14 order passed by the University dated 29.06.2017 is quashed, and there will be a direction to the University to conduct the inspection afresh in respect of the deficiencies pointed out in Ext.P10 and Ext.P13, and also ensure that the configuration provided by the petitioners’ college is in accordance with the provisions of the Statute and the Act in question. 13. At this point of time, learned Senior Counsel pointed out that appointment of an Advocate Commissioner would suffice the situation. Taking note of the said submission, Advocate Sri. B. Prasanth is appointed as the Advocate Commissioner. The Advocate Commissioner shall accompany the inspection team of the University and make an independent report with respect to the parameters provided by the petitioners’ college. The University shall inform the date of inspection to the Advocate Commissioner, and on which date, the Advocate Commissioner shall accompany the inspection team. An amount of Rs.30,000/- shall be paid to the Advocate Commissioner as preliminary fees. The University shall inform the date of inspection to the Advocate Commissioner, and on which date, the Advocate Commissioner shall accompany the inspection team. An amount of Rs.30,000/- shall be paid to the Advocate Commissioner as preliminary fees. Necessary arrangements shall also be made for transportation of the Advocate Commissioner to the venue of inspection. The inspection shall be conducted within a week from the date of receipt of a copy of this judgment, and a finality shall be attained to the entire issue within one week thereafter. The copy of the inspection report of the Advocate Commissioner shall be provided to all concerned, and the same will form part of the record of the University for the proceedings hereafter and for all practical purposes. However, the parties will be at liberty to challenge the report, if situation warrants. 14. If the Syndicate is not in session due to adequate circumstances, the Vice Chancellor of the University shall comply with the directions made above. The writ petition is disposed of accordingly.