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2017 DIGILAW 1186 (KER)

Nirmala Education Trust v. State of Kerala

2017-08-25

NAVANITI PRASAD SINGH, RAJA VIJAYARAGHAVAN V.

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JUDGMENT : Navaniti Prasad Singh, J. 1. The present appeal arises from judgment dated 11.08.2017 passed in W.P.(C) No. 25882 of 2017. The writ petitioner is the appellant. Though virtually no adverse order has been passed by the learned single Judge, the appeal has been preferred for getting certainty to the order in the facts which are noted hereunder. 2. In December, 2016, the appellant Trust made an application to the University of Calicut for allowing additional courses in certain subjects and additional batches in the existing subjects. The relevant Statute is Clause 9 of the Calicut University First Statute, 1977. As per the time schedule fixed, the University has to conduct inspection and if they are inclined to grant approval, seek the views of the Government, within a time frame, which in this case would be 31st of March, 2017. The University did conduct inspections but it got delayed. The inspection was conducted on 11.04.2017. Being satisfied, the University by Ext.P2 dated 11.07.2017, recommended after the matter was considered by the Syndicate and sought for the consideration and concurrence of the Government. Let it be noted that the admissions have to be completed by 31.08.2017 and if the State Government does not grant approval and the University consequentially does not grant formal orders of affiliation for the said courses and batches, the appellant's entire effort would become useless. This is because, the appellant will have no students for the academic session 2017-18 in respect of the courses aforesaid and all the money spent in arranging for, infrastructure, staff etc. would go waste for a complete year. 3. The learned single Judge issued directions to the University to take a decision within six weeks or in the alternative direct the Vice Chancellor to allow admission of the students after granting provisional affiliation. The learned counsel for the appellant submits that on 19.08.2017 Syndicate of the University met and though aware of the judgment of the learned single Judge, they decided to postpone the decision making process awaiting views of the State Government. The result is that, if no positive direction is issued, then the appellant, as noted above, would lose one year and all the money and effort go down the drain. 4. Learned counsel for the University submits that they cannot do anything till the Government gives its views. The result is that, if no positive direction is issued, then the appellant, as noted above, would lose one year and all the money and effort go down the drain. 4. Learned counsel for the University submits that they cannot do anything till the Government gives its views. He goes further to state that once the admissions for this academic session is over, then the University would have to conduct a fresh exercise by way of a fresh inspection. In other words, what the University says is that, if the University sleeps or the State Government sleeps, the right of the appellant to provide admissions to the students to the courses is frustrated. In this connection, we may refer to what the Chief Justice Chagla, as he then was, said over half a century back in paragraph 4 of a reported judgment in All India Groundnut Syndicate Ltd. v. Commissioner of Income Tax, Bombay City [AIR 1954 BOMBAY 232]: "(4) xx xx xx xx xx But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of this right which the law has given to him under sub- section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person-we take it that the Income-tax Department is included in that definition-can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default." " 5. In the case of State of Kerala v. M.G.M. College of Arts and Science, T.v.m and another [ 2017 (3) KHC 965 ] this Court has already emphasized the minimal role of the State. 6. In that view of the matter, when the learned single Judge gave an option to the University to grant provisional affiliation with permission to admit students, in the facts aforesaid, we think the University ought to have done that instead of adjourning the matter to the detriment of the appellant. 6. In that view of the matter, when the learned single Judge gave an option to the University to grant provisional affiliation with permission to admit students, in the facts aforesaid, we think the University ought to have done that instead of adjourning the matter to the detriment of the appellant. We expect that the University, being a responsible body, cannot abdicate its duty and delay in taking a decision in this matter. We, therefore, direct the University to grant provisional affiliation forthwith and ensure that appellant's College, for the courses aforesaid, is permitted to participate in the Common Admission Process (for short 'CAP'), which would end by 31.08.2017 so that more damage is not caused. The procedure prescribed under the CAP would be applicable. The University would cooperate in the matter. This would, however, be subject to the views of the State as and when they get up from the deep slumber and respond. 7. We are constrained to pass such orders because repeatedly in cases we are finding this cat and mouse game going on between the University and State Government and the ultimate sufferers, apart from the students, are the institutions who spent phenomenal amount of money and are left at the mercy of the State and the University. The writ appeal is disposed of as above.