IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 11118 of 2010(L) -------------------------------------- PETITIONER: ------------------- THE MUSLIM EDUCATIONL SOCIETY (REGD), BANK ROAD, CALICUT, REPRESENTED BY ITS GENERAL SECRETARY, PROF. P.O.J. LEBBA, CALICUT, KERALA, PIN – 673 001. BY ADV. SRI.A.A.ABUL HASSAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM DISTRICT, REPRESENTED BY ITS REGISTRAR. 3. UNIVERSITY GRANTS COMMISSION, BAHADURSHAH ZAFAR MARG, NEW DELHI-110 002. R1 BY GOVT. PLEADER SRI. K. RAMESH, R2 BY SRI.P.C.SASIDHARAN, SC, CALICUT UTY., R3 BY SRI.S.KRISHNAMOORTHY, SC, UGC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11118/2010-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PORTION G.O.(MS).NO.142/2002/H. EDN. DTD. 18/10/2002. EXT.P.2: COPY OF THE LETTER DTD. 27/06/2005 OF THE UGC. EXT.P.3: COPY OF THE G.O.(MS).NO.160/205/H. EDN. DTD. 24/10/2005. EXT.P.4: COPY OF THE UNDERTAKING DTD. 24/11/2005. EXT.P.5: COPY OF THE ORDER NO. GA.1/D1/6236/2005 DTD. 26/11/2005 OF THE R.2. EXT.P.6: COPY OF THE COVERING LETTER DTD. 14/12/2005 ALONG WITH ACCEPTANCE LETTER AND UNDERTAKING SUBMITTED BEFORE THE UGC. EXT.P.7: COPY OF THE R.2. DTD. 13/10/2006 GRANTED SANCTION FOR CONTINUATION OF AFFILIATION FOR THE YEAR 2006-07. EXT.P.7.A: COPY OF THE NO. GAI/DI/6236/2005 DTD. 26/02/2009 ISSUED BY THE R.2. EXT.P.7.B: COPY OF THE ORDER NO. GAI/G2/6236/2005 DTD. 09/09/2009 ISSUED BY THE R.2. EXT.P.8: COPY OF THE LETTER DTD. 16/12/2009 OF THE R.2. EXT.P.8.A: COPY OF THE SAID LETTER DTD. 30/12/2009 OF THE PRINCIPAL. EXT.P.8.B: COPY OF THE MEMO DTD. 13/01/2010 ISSUED BY THE R.2. EXT.P.9: COPY OF THE APPLICATION ALONG WITH THE COVERING LETTER DTD. 08/02/2010 AND ANNEXURES. EXT.P.10: COPY OF THE LETTER NO. GAI/D3/9592/04 DTD. 31/01/2009 ISSUED BY R2. EXT.P.10.A: COPY OF THE LETTER NO. GAI/D3/9592/04 DTD. 24/04/2009 ISSUED BY THE R.2. EXT.P.11: COPY OF THE ORDER NO. GAI/DI/3792/2004 DTD. 26/10/2004 ISSUED BY THE R.2. EXT.P.11.A: COPY OF THE ORDER NO. GAI/D1/5501/2005 DTD. 17/04/2008 ISSUED BY THE R.2. EXT.P.11.B: COPY OF THE ORDER NO. GAI/GI/5501/2005 DTD. 06/05/2009 ISSUED BY THE R.2. W.P.(C). NO.11118/2010-L: EXT.P.11.C: COPY OF THE ORDER NO. GAI/G2/5501/2005 DTD. 28/08/2009 ISSUED BY THE R.2. EXT.P.12: COPY OF THE LETTER NO. GA1/G3/7700/2009 (I) DTD. 11/06/2010 ISSUED BY THE UNIVERSITY OF CALICUT. EXT.P.13: COPY OF THE NEWS ITEM APPEARED IN MADHYAMAM DAILY DTD. 02/06/2010. EXT.P.14: COPY OF THE APPLICATION ALONG WITH THE COVERING LETTER DTD. 21/05/2009 AND CHALAN FOR REMITTANCE ON RS.5000/-. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 11118 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2010 J U D G M E N T The petitioner is an aided college conducting several courses. They wanted to start a new course in their college by name “M.Sc. Food Science and Technology” which is referred to by the University as well as the University Grants Commission (for short “U.G.C.”) as an 'innovative course'. In Kerala the only other institution which offers that course is the University Centre of the University of Calicut. The petitioner applied to the Government for sanction for starting that course. By Ext.P1 order dated 18.10.2002, the Government of Kerala accorded sanction to the petitioner's college for starting the course “M.Sc Food Science and Technology”. But the petitioner could not start the course that year because they could not afford the huge expenditure required for starting that course. Later on, they sought financial assistance from the U.G.C for starting the course. W.P.(C)No. 11118 of 2010 2 2. By Ext.P2 order dated 27.06.2005, the University Grants Commission accorded sanction for financial assistance to the petitioner's college for starting the said course. Financial assistance of Rs.23 lakhs for non- recurring expenditure and Rs.9 lakhs for recurring expenditure along with the salary for one Lecturer for a period of five years was sanctioned by the UGC subject to the terms and conditions mentioned therein. Two of the conditions were 5 (c) and 9 of Ext.P2. Under Clause 5 (c), the petitioner was required to give an assurance from the petitioner that the approved course will continue even after the UGC assistance to the programme ceases. Under Clause 9, the college was required to takeover the recurring liability of the staff sanctioned, if any, under the programme and other recurring liabilities, after the UGC assistance to the programme ceases on completion of the approved duration. By Ext.P3 order dated 24.10.2005, the Government again accorded sanction to the petitioner for W.P.(C)No. 11118 of 2010 3 starting the above said course from the year 2005-06 onwards, subject to affiliation by the University of Calicut. In Ext.P3, the Government specifically stipulated that, the management of the College shall run the course meeting the expenditure from its own resources, even after cessation of the UGC assistance. Pursuant thereto, the petitioner submitted Ext.P4 undertaking, in terms of clauses 5 (c) and 9 of Ext.P2. By Ext.P5, the University granted provisional affiliation to the petitioner to start the above said course under the innovative programme of UGC with intake of 12 students, during the academic year 2005-06. In the same, it is specifically recorded that, the Principal, Secretary & Correspondent of the College had executed an agreement to the effect that they will continue the course even after the UGC assistance to the programme ceases. By Ext.P6, the petitioner accepted the terms and conditions for starting the course stipulated by the UGC, the Government and the University. By Ext.P7, the University W.P.(C)No. 11118 of 2010 4 continued the affiliation for the said programme for the year 2006-07. By Exts.P7 A and P7 B, the affiliation was continued till the academic year 2009-10. By Ext.P8 dated 16.12.2009, the University informed the Principal of the College that, the Syndicate had decided that continuation of provisional affiliation need not be granted for M.Sc Food Science and Technology Course in the petitioner's college as a self financing course after the cessation of financial assistance from the UGC and directed the petitioner to apply for affiliation for this course afresh. According to the petitioner, although under law they were not obliged to apply for affiliation afresh, they submitted an application under cover of Ext.P8 (A) letter dated 30.12.2009 specifically mentioning therein that they are not legally bound to apply for affiliation afresh but is applying as directed by the University. By Ext.P10 dated 31.01.2009, the University informed the petitioner that, no extension of affiliation will be granted to the innovative course as they W.P.(C)No. 11118 of 2010 5 were sanctioned by UGC for a fixed period and therefore no students shall be admitted to the self-financing courses with effect from 2009-10 admissions. But by Ext.P10 (A) dated 24.04.2009, the University granted affiliation for the year 2009-10 also. But thereafter affiliation is not being extended is one of the grievances of the petitioner in this writ petition. The petitioner has another grievance also regarding another course. By Ext.P11 dated 26.10.2004, the petitioner was granted affiliation for another self- financing course ie. B.A. Mass Communication with Economics and Translation as Subsidiaries for the academic year 2004-05. That affiliation was being extended from year to year till 2009-10, as evidenced by Exts.P11 (A), P11 (B) & P11 (C). The petitioner applied for extension of affiliation by Ext.P14 application, which is not being sanctioned is the grievance of the petitioner in respect of that course. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: W.P.(C)No. 11118 of 2010 6 “i) to call for the records in this case; ii) to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibit.P10 letter of the 2nd respondent; iii) to issue a writ of mandamus or any other appropriate writ or order commanding the 2nd respondent to grant continuation of affiliation to M.Sc. Food Science & Technology and B.A. Mass Communication sanctioned to MES Mampad College, Mampad in Malappuram District before the academic year 2010-11 commences, so that students can be admitted to the above courses on time and appear for examinations without the loss of attendance; iv) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2nd respondent to take a final decision on Exhibit.P9 application submitted by the petitioner so that admission of students can be made before the academic year 2010-2011 commences;” 3. The University has filed a counter affidavit. Instead of summarizing their contentions, I shall extract the relevant paragraphs of their counter affidavit. The same reads as follows: “3. It is submitted that the additional affiliation (Provisional) was granted to M.Sc. Food Science and Technology degree course on unaided basis, in MES Mampad College during the academic year 2005-2006 with an intake of 12 students. The course was under the innovative programme of the U.G.C. for a period of five years from 27.6.2005 to 31.3.2010. Continuation of Provisional Affiliation to the course has been granted upto the academic year 2009-2010, i.e. until the UGC Assistance cases as per the rules of the University. W.P.(C)No. 11118 of 2010 7 4. It is submitted that the University Syndicate had earlier resolved vide Item No.2008.469, confirmed vide item No.2008.475 on 26.8.2008, not to grant affiliation to self- financing courses in aided affiliated colleges as resolved by the Senate of the University. Further resolved that no extension of affiliation be granted to add-on-courses, innovative courses in aided affiliated colleges since the courses were sanctioned by the UGC for a fixed period. 5. In the light of the resolution as above, the Principals of aided colleges were directed vide letter No.GA1/D3/9592/04 dated 31.01.2009, not to make admission to self-financing courses in their colleges during the academic year 2009-2010. 6. Later the Syndicate, vide item No.2009-122 (a) dated 21.2.2009, confirmed vide item No.2009.123 on 11.3.2009, resolved to continue the affiliation to the existing self-financing courses in the aided colleges for the academic year 2009-2010 only. As per the resolution, the Principals of aided colleges were permitted to admit students to the existing self-financing courses in their college for the academic year 2009-2010 also, and requested to apply for continuation of provisional affiliation for 2009-2010 , vide letter No.GA1/D3/9592/04 dated 24.4.2009. 7. It is submitted that the Syndicate held on 10.11.2009 (item No.2009-570) considered the question of continuation of M.Sc. food Science and Technology (Self Financing) course in MES Mampad College, after 31.3.2010 and resolved not to grant continuation of Provisional Affiliation to the course in MES Mampad College as a self financing course after ceasing the financial assistance from the UGC, which was upto 31.3.2010. The Syndicate also resolved that, the management of the college be asked to apply for affiliation to the course afresh. The above resolution of the Syndicate was communicated to the Principal, MES Mampad College vide this office letter dated 16.12.2009, marked as Ext.P8. Later, since the application submitted by the Principal was not in the prescribed form , he was directed to submit it in the prescribed form enclosing the required amount of fee for the same. 8. It is submitted that the petitioner submitted the application for starting M.Sc. Food Science and Technology Course afresh for the academic year 2010-2011 and 2011-2012 and the same is under the consideration of the University, pending final recommendations. W.P.(C)No. 11118 of 2010 8 9. It is submitted that the University Syndicate has resolved (vide item No.2009.570 dated 10.11.2009) that a decision on granting continuation of Provisional Affiliation and admission of students to the existing self financing courses in the aided colleges from the academic year 2010-2011 onwards may be taken on the basis of the policy decision by the Government in this matter. This decision was taken by the University taking note of the conditions stipulated by the UGC in Ext.P2 approval order and hence the views of the State Government is very much essential in this regard. It is also pertinent to note that in Ext.P3 sanctioning order by the Government specifically stated that the management of the college shall run the course meeting the expenditure from its own resources after cessation of the UGC Assistance. In respect of the course B.A. Mass Communication, is not stated by the petitioner that any application in this regard is submitted by the college before the University. In Ext.P11 (B) order it is specifically stated that the affiliation to the course B.A. Mass Communication is only for the academic year 2009-2010 and for the continuation of provisional affiliation for the ensuing years the college has to submit application and on receipt of the same the University will take decision thereon in accordance with law.” 4. I have considered the rival contentions in detail. Before going into the contentions of the petitioner, I specifically wanted the counsel for the University to enlighten me on the validity of the University granting provisional affiliation for one year and extending the same from year to year. The standing counsel for the University referred me to Statutes 9 (g) and 12 of Chapter 23 of the Calicut University First Statutes, 1977, as the source of power, which Chapter relates to the procedure to be W.P.(C)No. 11118 of 2010 9 adopted in granting affiliation to new colleges and new courses. The said statutes read as follows: “9. (g) After considering the report of the local enquiry, if any, and after making such further enquiry as it may deem necessary, the Syndicate shall decide after considering the report of the local enquiry and also after ascertaining the views of the Government, whether the affiliation be granted or refused, either in whole or in part. In case the affiliation is granted, the fact shall be reported to the Senate as its next meeting. x x x x x x 12. Conditional affiliation:- The affiliation granted may be provisional. If provisional affiliation is granted for a fixed period, the length of the period and the conditions to be fulfilled by the college before the expiry of the period shall be specified in the order of the Syndicate granting the affiliation. If the conditions are not fulfilled by the end of the period fixed, the affiliation shall cease automatically. If the conditions are fulfilled, the Syndicate shall have the power to confirm the affiliation at the end of the period. The confirmation of the affiliation shall be reported to the Senate.” 5. After going through the same, I am of opinion that, although the same refers to conditional/provisional affiliation, Statute 12 specifies the circumstances under which such a procedure can be resorted to. As is very clear from the Statute 12, when provisional affiliation is granted for a fixed period, the length of the period and the conditions to be fulfilled by the college before expiry of the period shall be specified in the order of the Syndicate W.P.(C)No. 11118 of 2010 10 granting the affiliation. It further prescribes that, if the conditions are not fulfilled by the end of the period fixed, the affiliation shall cease automatically. If the conditions are fulfilled, the Syndicate shall have the power to confirm the affiliation at the end of the period. That shows that, when a college fulfills the statutory requirements the permanent affiliation is the rule. Therefore once affiliation is granted it would be good until some contingency arises, which would disentitle the college for continued affiliation. Conditional order for provisional affiliation is an exceptional procedure, which can be resorted to only when the college has not fulfilled all the necessary requirements for a permanent affiliation, and still the University is inclined to grant affiliation, but with the condition that the college fulfills the other conditions, which they have not yet fulfilled for such affiliation within the time stipulated in the order. That would make it abundantly clear that, the procedure prescribed under Statute 12 can be resorted to only when W.P.(C)No. 11118 of 2010 11 the University finds that the college has not yet fulfilled all the necessary conditions for permanent affiliation and provisional affiliation can be granted on condition that the college fulfills the balance conditions also, within the period specified in the order of the Syndicate. Therefore unless the contingency stipulated in the Statute arises, the University cannot resort to the procedure for granting conditional/provisional affiliation. In other words, if the University is satisfied that, the concerned college has fulfilled all the necessary conditions for affiliation, the affiliation shall be permanent without limitation of any period and only when some conditions are yet to be fulfilled the procedure of granting provisional affiliation can be resorted to and the conditions to be fulfilled for permanent affiliation and the period during which those are to be fulfilled shall also be recorded in the order itself. If there is no such conditions to be fulfilled, the affiliation can only be permanent and cannot be conditional/provisional. But I W.P.(C)No. 11118 of 2010 12 find that, in all universities in Kerala they adopt this procedure for granting provisional affiliation year to year, without specifying any specific contingencies or conditions to be fulfilled by the colleges for permanent affiliation. Such a procedure or practice is not supported by any provision in the law applicable to universities. On satisfying all the conditions for affiliation, permanent affiliation is the Rule and conditional/provisional affiliation is only the exception which can be resorted to only in cases where the college is yet to satisfy certain conditions for permanent affiliation, which have to be specified in the order, also stipulating a period within which they have to comply with the conditions mentioned therein. I am of opinion that when an institution fulfills all the requirements for permanent affiliation, it is not in the interest of the standards of education to keep the institution and the students on tenterhooks terming the affiliation as provisional without assigning any reason. W.P.(C)No. 11118 of 2010 13 6. I shall examine the case of the petitioner in the light of the law laid down as above. From a reading of the counter affidavit filed by the University, in this case, they have no case that, the petitioner's college is liable to fulfill any conditions whatsoever for granting permanent affiliation. As far as the first course namely M.Sc. Food Science and Technology is concerned, their only contention is that, after the cessation of the financial assistance of the UGC, the university will have to seek views of the Government for continued affiliation in accordance with Statute 9 (g). I am of opinion that, this stand of the university is against the stand of the UGC, Government and the university at the time of granting the original sanction and affiliation. As I have stated earlier while narrating the facts of the case, the U.G.C. granted financial assistance to the course on specific condition that the petitioner shall give an assurance in writing that the approved course will continue after the UGC assistance to the programme W.P.(C)No. 11118 of 2010 14 ceased. By Ext.P3, the Government granted sanction for this course on a specific condition that the management of the college shall run the course meeting expenditure from its own resources after the cessation of the UGC assistance. As is evidenced from Ext.P3, the university also in Ext.P5 specifically noted the fact that, the Principal, Secretary & Correspondent of the college had executed an agreement to the effect that they will continue the course after the UGC assistance to the program ceases. After extracting an undertaking from the petitioner that they will continue the course at their expense even after the UGC assistance ceases, as a condition for giving the UGC assistance, Government sanction and University affiliation, it is idle for the university to contend that for continued affiliation of the course, after the UGC assistance ceased, the petitioner will have to file fresh application for affiliation and the Government has to give fresh sanction for the same. The university has no case that, the college does not have the W.P.(C)No. 11118 of 2010 15 infrastructural facilities or that they have not fulfilled the other conditions required for affiliation of the course. In none of the provisional affiliation orders issued to the petitioner has it been stated that the provisional affiliation is subject to any specific condition to be fulfilled within a stipulated period as prescribed in Statute 12. Of course the affiliation was granted from year to year. But contrary to Statute 12, the provisional affiliation orders do not specify the conditions subject to which the affiliation has been made provisional and the conditions they have to fulfill for continued affiliation. Therefore I am satisfied that, in the petitioner's case the university could not have adopted the procedure prescribed under Statute 12 for granting affiliation. The original affiliation itself was after satisfying all necessary conditions for permanent affiliation and no reasons for restricting the same to provisional affiliation is not also stated in any of the orders of affiliation. That means, the affiliation already granted to the petitioner W.P.(C)No. 11118 of 2010 16 should be construed as permanent affiliation only. It is declared so. 7. The situation is not any the different in respect of the second course ie. B.A. Mass communication. The Government has granted sanction and the university has granted affiliation also for that course. That affiliation also is not subject to fulfillment of any condition, although that affiliation is also from year to year. The University has no case that the petitioner is yet to fulfill any requirements for permanent affiliation of the course. Therefore following the law laid down as above, I declare that, the affiliation granted to the petitioner's college in respect of the course B.A. Mass Communication also is permanent affiliation, without any condition which would continue to be in force until some contingency arises in future, which may make the petitioner ineligible for continued affiliation, for which, separate proceedings for cancellation of affiliation will have to be initiated after complying with the procedural W.P.(C)No. 11118 of 2010 17 formalities thereof. In view of my above findings, I declare that, the affiliation for the two courses granted to the petitioner's college are permanent and the petitioner need not apply for or obtain fresh affiliation in respect thereof. Resultantly, the petitioner can continue to make admissions to those courses in accordance with the sanction of the Government and the affiliation of the University already granted and continue the courses accordingly. If the university so wishes they may allot students in the 50% merit quota to the college for the course of M.Sc. Food Science & Technology, failing which, it would be open to the petitioner to fill up that quota also on their own. The university shall inform the petitioner the date by which they can allot students in the 50% quota within a period of two weeks from the date of receipt of a copy of this judgment. After the date so fixed, the petitioner can make admissions on their own for the entire seats, if the university does not allot W.P.(C)No. 11118 of 2010 18 students in the 50% quota or the university does not inform the petitioner of the date within which they will allot students in the 50% quota as directed above. Formal orders in terms of all the above directions shall be issued by the University to the petitioner within the said two weeks. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/