IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 36360 of 2008(C) -------------------------- PETITIONER(S): --------------- MANAGER, ST.JOSEPH'S COLLEGE OF PHYSICAL EDUCATION, MOOLAMATTAM, ARAKULAM-PO., IDUKKI. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- M.G.UNIVERSITY, REP. BY THE REGISTRAR KOTTAYAM. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36360/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF the JUDGMENT IN WPC NO.24586/2007 DATED 03/07/2008. P2 : COPY OF THE COMMUNICATION DATED 19/06/2008. P3 : COPY OF THE ORDER NO.2510/A1/2008/ACADEMIC DATED 12/06/2008. P4 : COPY OF THE CIRCULAR NO.22435/J2/08/H.EDN. DATED 25/07/2008. P5 : COPY OF THE RELEVANT PAGES OF THE LIST OF COURSES/COLLEGES RECOMMENDED DURING THE ACADEMIC YEAR 2006-07 WITH COVERING LETTER DATED 26/12/2007. P6 : COPY OF THE COUNTER AFFIDAVIT FILED IN WPC NO.24049/2008. P7 : COPY OF THE COMMUNICATION NO.F.109-223/2008/NCTE/CDN DATED 14/10/2008. P8 : COPY OF the JUDGMENT IN WPC NO.24049/2008 DATED 15/10/2008. P9 : COPY OF THE ORDER NO.5150/A1/2008/ACAD. DATED 05/12/2008. RESPONDENT'S EXHIBITS R2(a) : COPY OF the LETTER NO.ACA1/1/312/2004(I) DATED 16/08/2008 ISSUED BY THE 2ND RESPONDENT. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.36360 of 2008 --------------------------------- Dated, this the 1st day of January, 2009 J U D G M E N T The petitioner is the Manager of an Unaided Self Financing College. Affiliation has been granted by the respondent University to run B.P.Ed course. Subsequently the petitioner applied for affiliation for Bachelor in Coaching Sports and Games and Master of Physical Education courses. According to the petitioner, based on the application made by them in February, 2006, an inspection was conducted and recommendation was also made by the inspecting team for granting affiliation. 2. Referring to Ext.P5, the learned counsel for the petitioner submits that the respondent University had included their College in the list of Courses/Colleges recommended for affiliation during the year 2006-07. There was no progress and subsequently, by Ext.P3 order dated 12/06/2008, the University prescribed guidelines for granting affiliation sought for by individual colleges. Based on Ext.P3, Ext.P2 communication was issued by the University on 19/06/2008 informing the petitioner that for the reasons stated WP(C) No.36360/2008 -2- therein the University was not in a position to consider their request for affiliation to the new courses mentioned above. 3. Petitioner states that in the meanwhile the University had issued Ext.R2(b) dated 16/08/2008 to the Regional Director of NCTE calling for his remarks as to whether the courses, affiliation of which was sought for by the petitioner, can be started in Colleges exclusively started for imparting instruction in education/physical education. The petitioner was also issued Ext.R2(c) dated 16/08/2008, the relevant portion of which reads as under :- “Inviting attention to the references cited, I am to request you to furnish the clearance certificate from the NCTE for starting the proposed courses, viz. Bachelor of Coaching in Sports and Games and MPE in your institution owing to the fact that the NCTE has given permissive sanction for starting Physical Education College for imparting BPEd course. I may also bring to your attention the fact that the University has initiated preliminary steps for approving the scheme and syllabus for Bachelor of Coaching in Sports and Games course. Your application can be considered only after the receipt of the clearance certificate from the NCTE.” 4. Challenging Ext.P2, the petitioner had filed WP(C) No.24049/2008 before this Court. In that writ petition, the University had filed Ext.P6 counter affidavit. In paragraph 11 of the WP(C) No.36360/2008 -3- said counter affidavit, it was stated that they had sent communication to the NCTE seeking the clarification sought for by them in Ext.R2(b) and that the same was awaited. In the meanwhile, the petitioner had obtained Ext.P7 from the NCTE to the effect that the courses for which affiliation was sought for by the petitioner, do not come under the purview of the NCTE. 5. Although several contentions were raised by the University in Ext.P6 counter affidavit to sustain Ext.P2, from Ext.P8 judgment disposing of the writ petition, it would appear that the contention urged before this Court was regarding the necessity of clarification from the NCTE. Dealing with these contentions, in Ext.P8 judgment, this Court held that the University was bound to process the application made by the petitioner and deal with the same on merits. Accordingly, Ext.P2 order was quashed and the writ petition was disposed of, in the following terms. “In the present case, it would be correct to proceed on the premise that two courses offered do not come within the purview of NCTE. If that be so, the University is entitled to proceed to consider the application filed by the petitioner for affiliation in respect of two new courses without reference to the NCTE. In the result, Ext.P2 is quashed. There will be a direction to the second respondent to pass orders on the petitioner's WP(C) No.36360/2008 -4- application for affiliation in relation to the courses of Bachelor of Coaching and Training in Sports and Master of Physical Education to be commenced during the academic year, 2008-09, as early as possible, at any rate, within six weeks from today. This shall be done with reference to the recommendations contained in Ext.P3. It is made clear that if the facilities offered by the petitioner have already been assessed to be satisfactory, then, obviously the lack of facilities should not form a ground for the decision to be taken by the University as aforementioned.” Accordingly, the matter was reconsidered by the University and the University passed Ext.P9 order. In Ext.P9, the reasons for rejection of the petitioner's application for affiliation have been stated thus:- “The matter was placed before the Syndicate and the Syndicate resolved, vide paper (vi) read above, to reject the request for granting affiliation to new courses in St.Joseph's College of Physical Education, Moolamattom, taking into account the following facts: (a) The two new courses applied for by the agency do not come under the purview of the NCTE and, therefore, they cannot be started in the existing College of Physical Education. If other Degree and PG level courses are granted in an institution whose regulatory body is NCTE, there will be similar requests from other colleges of Education which are contrary to University regulations. (b) The scheme and syllabus for Bachelor of Coaching in Sports and Games is not formulated or approved by the University.” It is challenging Ext.P9, the writ petition is filed. 6. The University has filed a counter affidavit, in which WP(C) No.36360/2008 -5- several contentions have been raised to sustain Ext.P9. They are saying that it is not possible to affiliate a course as sought for by the petitioner in a College which is controlled by NCTE. It is also their contention that scheme and syllabus of the courses are not formulated or approved by the University. 7. Although, several contentions have been raised in the counter affidavit filed by the University in support of Ext.P9, the validity or otherwise of Ext.P9 will depend upon the reasons stated therein. Viewed in that manner, all that this Court need now be concerned about is the correctness of the two reasons stated in Ext.P9. As already noticed at the time when Ext.P8 judgment was rendered by this Court, the contention urged by the University was regarding the clarification they had sought from the NCTE. It was taking into account this contention that in paragraph 6 of the judgment, this Court directed the University to proceed and consider the application filed by the petitioner for affiliation without reference to the NCTE. If that be so, the University cannot now raise those contentions which were given up by it and it is entirely for the University to take a decision on the merits of the claim made by the petitioner. WP(C) No.36360/2008 -6- 8. Now, in reason No.(1) stated in Ext.P9, the University does not say that there is any legal bar in granting affiliation to the courses applied for by the petitioner for the reason that the existing course offered by the petitioner is coming within the purview of NCTE. On the other hand, the University only says that if affiliation is granted to the petitioner, other colleges might also ask for it. In my view, this reason is absolutely unsustainable. As already stated, the University has no case of any legal bar in granting affiliation to the courses, affiliation of which was sought for by the petitioner. The University also does not say that any policy decision against granting affiliation to the petitioner has been taken. In such a situation affiliation cannot be denied only on the ground that others might ask for affiliation. If that be so, the first reason stated by the University is unsustainable and is only to be rejected. 9. The second reason stated is regarding the formulation and approval of scheme and syllabus for Bachelor of Coaching in Sports and Games. As already noticed, in Ext.R2(c) dated 16/08/2008 attached to Ext.P6, the University itself has stated that they have initiated preliminary steps for approving the scheme and syllabus for the aforesaid course. If that be so, now that the WP(C) No.36360/2008 -7- University has already initiated the process for formulation and approval of the scheme and syllabus of the Course, the University should necessarily complete the same on an expeditious basis. 10. Therefore, the writ petition will stand disposed of directing the University to formulate and approve the scheme and syllabus for the Bachelor of Coaching in Sports and Games course, affiliation of which was sought for by the petitioner. This shall be processed as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment. Once the aforesaid process is completed, the University shall grant affiliation to both the courses applied for by the petitioner within four weeks thereafter. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg