IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WP(C).No. 18774 of 2008(I) -------------------------- PETITIONER: ------------ GIRIDEEPAM INSTITUTE OF ADVANCED LEARNING, GIRIDEEPAM BETHANY COLLEGE),VADAVATHOOR, KOTTAYAM - 10 REPRESENTED BY ITS PRINCIPAL. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENTS: ----------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O., KOTTAYAM - 686 560. 2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O., KOTTAYAM. BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.18774/2008 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE APPLICATION DATED 31.1.2006 FOR GRANTING AFFILIATION FOR B.COM COURSE SUBMITTED TO THE UNIVERSITY. EXT.P2: COPY OF THE APPLICATION DATED 31.1.2006 FOR STARTING PG COURSES SUBMITTED TO THE UNIVERSITY. EXT.P3: COPIES OF THE CHALLANS SUBSTANTIATING PAUYMENT OF PROCESSING CHARGES. EXT.P4: COPY OF THE COMMUNICSATION NO.AC.AVIII/1/08 RECEIVED FROM THE UNIVERSITY ON 14.1.2008. EXT.P5: COPY OF THE LETTER ISSUED BY THE GOVERNMENT TO ONE MARTUTHI HUDA TRUST DATED 19.9.2006. EXT.P6: COPY OF THE JUDGMENT DT.16.11.2006 IN W.P.(C).NoM21770/06 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P7: COPY OF THE ORDER DATED 19.1.2007 IN R.P.67/2007 IN W.P.(C) No.21770/2006 OF THE HON'BLE HIGH CURT OF KERALA. EXT.P8: COPY OF CIRCULAR NO.AC.A1/1/132/07 DATED 16.1.2007 ISSUED BY THE UNIVERSITY. EXT.P9: COPY OF ORDER IN W.P.(C) No/4671 OF 2008 IN THE HIGH COURT OF KERALA. EXT.P10: (* CORRECTED EXT.P11 AS PER ORDER DT.7/7/2008 IN I.A.NO.8452/08) COPY OF LETTER NO.2617/01/08/AC AVIII ISSUED BY THE UNIVERSITY. EXT.P11: (* CORRECTED AS EXT.P10 AS PER ORDER DT.7/7/2008 IN I.AA.NO.8452/08) COPY OF ORDER GRANTING AFFILIATION TO J.P.M.ARTS & SCIENCE COLLEGE ISSUED BY THE UNIVERSITY. EXT.P12: COPY OF THE LIST OF COLLEGES WHO HAVE BEEN GRANTED AFFILIATION FOR CONDUCTING B.COM (COMPUTER APPLICATION). EXT.P13: COPY OF THE LIST OF COLLEGES WHO HAVE BEEN GRANTED AFFILIATION FOR CONDUCTING MTA COURSES. EXT.P14: LIST OF COLLEGES CONDUCTING MBA COURSES UNDER THE M.G.UNIVERSITY. EXT.P15: COPY OF THE RELEVANT PORTION OF THE M.G.UNIVERSITY DIARY. W.P.(C).No.18774/2008 3 EXT.P16: COPY OF THE NOTIFICATION DATED 15.5.2008. RESPONDENTS EXHIBITS: EXT.R1(a): COPY OF THE GOVT. LETTER NO.15136/J2/07/H.EDN DATED 30.08.07. EXT.R1(b): COPY OF THE UNIVERSITY ORDER No.2510/A1/2008/ACAD DATED 12.6.2008. EXT.R1(c): COPY OF THE LETTER NO.23771/B3/2007/H.EDN DATED 7.2.2008 ALONG WITH THE LEETER OF THE KERALA STATE HIGHER EDUCATION COUNCIL. TRUE COPY P.A.TO JUDGE S.SIRI JAGAN, J ================== W.P(C)No.18774 of 2008 ================== Dated this the 29th day of July, 2008. J U D G M E N T The issue involved in this writ petition is as to whether the petitioner - college is entitled to get affiliation for the course of B.Com (Computer Applications), Master of Business Administration (MBA), Master of Tourism Administration (MTA), Master of Social Work (MSW) and Master of Financial Administration (MFA) from the 1st respondent - University. The petitioner applied for affiliation of these courses for the year 2006-2007. Even after a long time, since affiliation was not granted, the petitioner approached this court by filing W.P.(C)No.4671 of 2008. In that writ petition the University took the contention that as per the University statutes views of Government has to be ascertained in the matter for which the Government had been addressed which views are yet to be received. After considering that contention, this court by W.P(C)No.18774 of 2008 - 2 - Ext.P9 judgment took the view that since a lot of time had lapsed since the Government were addressed in the matter it is not necessary to wait for the views of the Government any more and the University was directed to consider the applications for affiliation. Exts.P1 and P2 are the applications for affiliation submitted by the petitioner for the above courses. This court in Ext.P9 judgment directed the University to consider those applications for grant of affiliation and to take a decision in the matter within two months from the date of production of a copy of the judgment. Thereafter Ext.P10 order was passed, pursuant to the directions in Ext.P9 judgment rejecting the applications for affiliation on the following grounds: (a) The existing manpower available on the University cannot cope with the additional work consequent on the sanctioning of new unaided colleges/courses. (b) Lack of permanent teaching faculty for the conduct of evaluation of exams. (c) The increasing instances of irregular admissions in unaided institutions and also pending before the Hon'ble Courts.” W.P(C)No.18774 of 2008 - 3 - The petitioner is challenging Ext.P10 order in the writ petition. 2. The petitioner first of all contend that by Ext.P4, the very same University who have now issued Ext.P10 order, had on 14.1.2008 recommended the said courses to the Government of Kerala and sought the views of the Government. Therefore, according to the petitioner the University cannot now turn around and take a stand that they will not grant affiliation. The counsel for the petitioner would contend that at the time of issuing Ext.P4 they had no objection whatsoever for affiliation of these courses, subject to Government views in the matter. Now that this court had by Ext.P9 judgment dispensed with the Government views on the said recommendation and the University cannot now take a different stand. 3. The petitioner would further point out that, that recommendation itself was passed on the report of the commission who inspected the petitioner's college for the W.P(C)No.18774 of 2008 - 4 - facilities available and after completing all the formalities prescribed under the University statutes for such affiliation. 4. The next contention raised by the petitioner is that on the basis of an exactly identical direction of this court as in Ext.P9 judgment, in the case of another college namely JPM Arts & Science College, Labbakkada, Idukki, the very same University had granted affiliation to a new college itself in the unaided sector, by Ext.P11 order. The counsel for the petitioner would contend that after granting affiliation to a college itself in the unaided sector, the University cannot be heard to contend that they will not grant affiliation to the petitioner's additional courses. 5. The counsel for the petitioner would also attack the reasons mentioned in the impugned order for denying affiliation as unsustainable. As far as the first reason is concerned the Counsel for the petitioner would contend that, as is clear from Ext.R1(b) University order itself, the University itself had permitted affiliation to colleges and W.P(C)No.18774 of 2008 - 5 - courses in Government, Co-operative and aided sector. He would submit that as far as man power is concerned there cannot be any difference between Government/aided/ co-operative sector on the one hand and self financing sector on the other. Regarding the second reason also he would raise the very same contention. As far as the third reason is concerned he would submit that the possibility of malpractice by unscrupulous managements cannot be a ground for denying affiliation to all. Regarding the fourth reason mentioned in Ext.P10, the counsel for the petitioner would point out that the same also appears to be hollow in view of Exts.P12,P13 and P14, list of colleges which themselves have been prepared on the basis of data available in Ext.P15 diary published by the University itself. He was pointed out that in Ext.P12, out of 28 colleges offering course in B.Com (Computer Application), only three are in the aided sector. In Ext.P13 out of 12 colleges offering MTA course, all of them are in the unaided sector. W.P(C)No.18774 of 2008 - 6 - In Ext.P14 out of 20 colleges offering MBA course only three are in the aided sector. Therefore, the petitioner would contend that the 4th reason mentioned in Ext.P10 is also without any basis. After referring to the decision of the Supreme Court in P.A. Inamdar's case, Counsel would argue that the said action of the University amounts to discrimination, which is clearly prohibited as per the Supreme Court judgment. 6. In answer to the contentions of the petitioner, the Standing Counsel for the University would submit that Ext.P10 order has been issued on very valid consideration as stated in the order itself. He would contend that the University is functioning with lots of constraints regarding man power and therefore additional courses or colleges in the self financing sector cannot be affiliated for want of sufficient man power. He would submit that the case of colleges and courses in the Government, aided and co- operative sectors stands on a different footing since as per W.P(C)No.18774 of 2008 - 7 - Government policy they are bound to affiliate colleges and courses which cannot be cited as discrimination as against self financing colleges and courses. The same according to him applies to the 2nd reason also. On the 3rd reason he points out various instances of irregular admissions made by self financing colleges in respect of which several writ petitions are pending before this court and he would therefore submit that the same is a very valid consideration for denying affiliation to the courses now offered by the petitioner for which they want affiliation. He supports the 4th reason mentioned in Ext.P10 also. 7. I have considered the rival contentions in detail. 8. At the outset I must note that the courses which the petitioner seeks affiliation of are new generation courses having plenty of employment potential, in a State where unemployment is ever increasing. I am of opinion that conduct of such courses should be encouraged as far as possible. W.P(C)No.18774 of 2008 - 8 - 9. The petitioner has been fighting for affiliation for this course from 2006-2007 onwards. All along the University was taking the stand that they are awaiting the views of the Government, which they are bound to obtain as per the University statutes. Ext.P4 is the communication issued by the University to the petitioner in this regard on 14.1.2008. It categorically states that the University had considered the petitioner's applications for affiliation and recommended those courses to the Government of Kerala. That recommendation was after an elaborate process of verification of the infrastructural facilities, availability of faculty etc. as contemplated under the University statutes in respect of which no disputes are raised before me at all by the University. At that time, their only objection was want of views from the Government. Since nothing happened for a long time the petitioner approached this court by filing W.P.(C) No.4671/2008, in which this court passed Ext.P9 judgment directing the University to consider W.P(C)No.18774 of 2008 - 9 - the applications for affiliation submitted by the petitioner without waiting for the views of the Government. It is pursuant to the said direction that impugned order has been passed. From Ext.P11 order of the very same University, I find that the JPM Arts & Science College, Labbakkada, Idukki, had also obtained identical order from this court, to pass orders on the application for affiliation of the new college within six weeks from the date of receipt of a copy of the judgment. Pursuant to that judgment only Ext.P11 order has been passed on 2.6.2008. While passing that order the University had no reservation whatsoever in granting affiliation and no reasons pointed out in the impugned order were raised then. Of course the University would contend that it is after passing Ext.P11 that Ext.R1(b) order was passed by the University on 12.6.2008 and also that they were forced to pass Ext.P11 order for fear of action under the Contempt of Courts Act. Both arguments do not appear very convincing. The judgment referred to in W.P(C)No.18774 of 2008 - 10 - Ext.P11 order was passed on 6.2.2008, Ext.P9 judgment in the petitioner's case was passed on 15.2.2008. The two judgments were passed only 9 days apart. While passing orders pursuant to identical judgments, I am at loss to understand how the University could have issued two kinds of orders namely Exts.P10 and P11. Of course, it is true that between Ext.P11 and P10 there is a difference of 16 days and in between Ext.R1B(b)had come to be passed. But it is to be noted that Ext.R1(b) order had been passed pursuant to the minutes of the Syndicate Standing Committee on affiliation held on 27.5.2008 which was available to the University when passing Ext.P11 order also. As such basically there was no essential difference between the two colleges and therefore the differential treatment meted out to the petitioner is clearly discriminatory. In so far as, there was no direction to grant affiliation in the case referred to in Ext.P11 the explanation that they granted affiliation for fear of contempt action also appears to be W.P(C)No.18774 of 2008 - 11 - hollow. 10. In any event, I do not find any merit in the reasons mentioned in Ext.P10 order. We are a developing nation who aspires to go forward, not backwards or to stand still. We can go forward in the education field only if the new generation course come up to cater the educational needs of the country. Educational needs cannot be disputed because of the number of applicants available for such course in respect of which there is no dispute. If a University takes a stand that they have no sufficient man-power to cater to additional courses, that would be a totally negative attitude which cannot be countenanced in a University whose very object is to take the educational standards of this country forward. If there is not enough man-power, it is the duty of the Government and the University to see that appropriate man-power is provided in the University for the educational needs of the state. 11. In any event as is evident from Ext.R1(b) there is W.P(C)No.18774 of 2008 - 12 - no prohibition for affiliation of colleges and courses in the Government, Co-operative and aided sector. There cannot be any dispute that for Government/Co-operative/aided sector also, for additional colleges and courses, additional man-power would be necessary. As far as additional man-power is concerned there cannot be any difference between Government/Co-operative/aided sector on the one hand and self financing sector on the other hand. Therefore, it is clearly spells out discrimination between colleges in the Government/Co-operative/aided sector and those in the self financing sector students studying in both have to be treated equally. Therefore reasons (a) and (b) mentioned in Ext.P10 are clearly not sufficient to reject the applications for affiliation submitted by the petitioner. 12. The 3rd reason mentioned is the increasing instances of irregular admissions in aided institutions in respect of which cases are pending before this Court. The fact that there are chances of irregularities that may be W.P(C)No.18774 of 2008 - 13 - committed by unscrupulous managements is no ground to refuse to exercise statutory powers vested in the University under the Mahatma Gandhi University Acts and Statutes. Therefore without any further discussion on the same it can be stated without any doubt that the 3rd reason is not a reason at all. The 4th objection also does not appear to be convincing in the wake of Exts.P12 to P15, which would go to show that in very many colleges, identical courses are being taught for which affiliation has been granted by the very same University. Therefore without doubt the last reason also cannot be upheld. In the above circumstances, I have not doubt in my mind that the reasons mentioned in Ext.P10 order for denying affiliation to the courses for which the petitioner has submitted applications is clearly discriminatory unsustainable. Accordingly, I quash Ext.P10 order and directed the respondents to grant affiliation to the courses for which the petitioner has filed applications. Orders in W.P(C)No.18774 of 2008 - 14 - this regard shall be issued within a period of one month from the date of receipt of a copy of this judgment. Since petitioner has been waiting from 2006-2007 onwards for affiliation of the courses, I direct that the University shall permit the petitioner to start the course from this year onwards itself. The petitioner may start the process for admitting students to those course in anticipation of the grant of affiliation. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE rhs