IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 15403 of 2009(U) --------------------------------------- PETITIONER(S): ---------------------- KODUVALLY MUSLIM ORPHANAGE COMMITTEE, KODUVALLY (PO), KOZHIKODE, PIN-673 572, REPRESENTED BY ITS SECRETARY. BY ADV. MR.C.P.MOHAMMED NIAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN-673 635, REPRESENTED BY ITS REGISTRAR. R1 BY GOVERNMENT PLEADER MR.DILEEP MOHAN. R2 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15403/2009-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE OF RECOGNITION ISSUED TO THE PETITIONER BY THE BOARD OF CONTROL FOR ORPHANAGE AND OTHER CHARITABLE HOMES, KERALA. EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 20/10/2005. EXT.P3: COPY OF THE COMMUNICATION DATED 09/08/2007 ISSUED BY THE NCTE TO THE PETITIONER. EXT.P4: COPY OF THE LETTER DATED 13/11/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE GOVERNMENT ORDER DATED 23/09/2008 ISSUED TO THE PETITIONER. EXT.P6: COPY OF THE GOVERNMENT ORDER DATED 18/10/2008 GRANTING N.O.C. TO THE PETITIONER. EXT.P7: COPY OF THE LETTER DATED 26/10/2008 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P8: COPY OF THE REPLY DATED 17/11/2008 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P9: COPY OF THE APPLICATION DATED 09/10/2008 IN THE SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P10: COPY OF THE ORDER DATED 19/01/2009 ISSUED BY THE NCTE GRANTING RECOGNITION TO THE PETITIONER. EXT.P11: COPY OF THE LETTER SENT BY THE 2ND RESPONDENT DATED 30/01/2009 TO THE PETITIONER. EXT.P12: COPY OF THE PETITIONER'S LETTER DATED 01/02/2009 ALONG WITH CHALAN DATED 30/01/2009 SENT TO THE 2ND RESPONDENT. EXT.P13: COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE DIRECTOR OF COLLEGIATE EDUCATION DATED 04/05/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC,J. --------------------- W.P.(C).No.15403 OF 2009 ------------------------ Dated this the 18th day of September, 2009. JUDGMENT Petitioner is a Charitable Society registered under the Societies Registration Act. By Ext.P2 dated 20.10.2005, it applied to the University for starting a B. Ed College. Subsequently, it obtained Ext.P3 conditional recognition issued by the NCTE as well. Thereupon the University, by Ext.P4, required the petitioner to obtain concurrence of the State Government. Accordingly, the Petitioner took up the matter with the State Government and obtained Ext.P5 order dated 23.9.2008, according sanction for starting B. Ed college. 2. Petitioner submits that, thereupon they entered into seat sharing agreement with the Government and thereafter Government issued Ext.P6 No Objection Certificate dated 18.10.2008. On the strength of Ext.P6 and enclosing the same, petitioner submitted Ext.P7 dated 26.10.2008 requesting the University to grant affiliation to the College. Thereupon WP(c).No.15403/09 2 University by Ext.P8 reply intimated the petitioner that, during the academic year 2008-09 no valid application submitted by the petitioner was pending. According to the petitioner, this stand of the University was apparently for the reason that the application made by the petitioner remained valid only for a period of 2 years. 3. Petitioner again submitted Ext.P9 application and during its pendency petitioner obtained Ext.P10 dated 19.1.2009, permanent recognition granted by the NCTE, under the NCTE Act. Thereafter, the University by Ext.P11 informed the petitioner that they did not pay the application fee for Ext.P9. On its receipt petitioner remitted the required fee and produced Ext.P12 chalan receipt along with its letter dated 1.2.2009, a copy of which is also marked as Ext.P12. Even thereafter there was no progress in the matter and therefore this writ petition is filed with the following prayers. “(a) Declare that the petitioner is entitled to run the B. Ed course in Koduvally in Kozhikode District in the light of Ext.P10 recognition granted by the NCTE and Ext.P6 NOC granted by the State Government. (b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent University to pass appropriate orders granting affiliation to the B. Ed college as applied for in Exts.P2 and P9 in the light of the recognition granted by NCTE and the NOC granted by the State Government. “ WP(c).No.15403/09 3 4. University has filed a counter affidavit. The fact that the petitioner had submitted Ext.P9 application, remitted the required fee and produced Ext.P10 permanent recognition from the NCTE are all admitted by the University. It is stated that on receipt of the application, in terms of the University Statutes, an Inspection Committee was appointed and that an enquiry was conducted by the Inspection Committee. According to the University, on such Inspection it was found that the Institution was not entitled to get affiliation, for the reason that there are three other training colleges in the same locality and that there are excess training colleges. It is stated that in terms of the University Statutes, the condition to be satisfied for grant of affiliation as provided in clause 23, is that the commencement of the college is only to meet the educational need of the locality. It is stated that there was no dearth of educational institutions in the area and therefore the petitioner is not entitled to the affiliation as sought. 5. Petitioner has filed a reply affidavit where existence of the 3 colleges in the locality mentioned by the University in paragraph 8 of its counter affidavit is denied. Irrespective of this factual controversy learned Counsel for the petitioner relies on the Full WP(c).No.15403/09 4 Bench judgment of this court in Vikram Sarabhai E. Trust & B. Ed. College V. University of Calicut (2008(2)KLT 1027), rendered referring to the Apex Court judgments in Jaya Gokul Educational Trust V. Commissioner & Secretary to Government (2002(2)KLT 267), State of Maharashtra V. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (2006(9) SCC 1). In the judgment, after referring to Section 14 of the NCTE Act, referring to paragraph 74 to 80 of the judgment of the Apex Court in 2006(9) SCC-1 , the Full Bench held that going by the statutory provisions there cannot be any doubt that once NCTE grant recognition to the College, the University is bound to grant affiliation to the College and that the affiliation cannot be denied relying on the technical contention that the application was not submitted in time. 6. In this context, paragraph 74 of the Apex Court judgment in 2006(9)SCC-1) being relevant, reads as under; “It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher education system “throughout the country'. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new B. Ed colleges or allowing increase in intake capacity, keeping in WP(c).No.15403/09 5 view the 1993 Act and planned and coordinated development of teacher education system in the country. It is neither open to the State Government nor to a University to consider the local conditions or apply `State policy' to refuse such permission. In fact, as held by this Court in cases referred to herein above, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court. “ A reading of the aforesaid paragraph of the judgment, shows that once the statutory requirement of recognition of the NCTE is obtained, it is not open to the State Government or the University to consider the local conditions or apply the State policy to refuse affiliation to the college. 7. In the light of the binding judgment thus rendered by the Apex Court and Full Bench of this court and also the statutory provision contained in the NCTE Act, I am satisfied that the objection raised by the University that the needs of the University do not justify affiliation to the petitioner, is unsustainable and is illegal. Therefore, the writ petition will stand allowed and the respondent University shall pass appropriate orders in Ext.P9 application submitted by the petitioner in the light of Ext.P10 and WP(c).No.15403/09 6 in the light of the observations made herein above. This shall be done as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/