IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WA.No. 825 of 2009 --------------------------------- AGAINST JUDGMENT IN WP(C) NO.36360/2008 DATED 1.1.2009 APPELLANT/RESPONDENT -------------------------------------- MAHATMA GANDHI UNIVERSITY, REP. BY ITS REGISTRATR, KOTTAYAM. BY ADV. SRI.PATHROS MATHAI (SR) & ADV.SRI. T.A. SHAJI, SC, M.G.UNIVERSITY RESPONDENT/PETITIONER --------------------------------------- MANAGER, ST.JOSEPH'S COLLEGE OF PHYSICAL EDUCATION, MOOLMATTAM, ARAKULAM.P.O., IDUKKI. BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------ W.A. No.825 of 2009 ------------------------------------------ Dated, this the 23rd day of June, 2009 JUDGMENT Kurian Joseph, J. The appellant University was the respondent in the writ petition. The writ petitioner is an affiliated college of the University. They have been running the course in Bachelor of Physical Education. While so, they applied for two new courses in the academic year 2006-07. It is seen from Ext.P5 communication dated 26.12.2007 that the University had recommended the same to the Government. However, it is not in dispute that clearance from the Government is not necessary for the University to take an independent decision in the matter of affiliation of self financing courses. It is seen that the petitioner had been before this Court on earlier occasions also when despite the recommendation by the University, the required sanction was being either delayed or denied. It will be necessary only to refer to the last occasion leading to Ext.P8 judgment in W.P.(C) No.24049 of 2008. The writ petitioner approached this Court at that time aggrieved by Ext.P2 communication wherein the University stated that the W.A.No.825 of 2009 - 2 - existing man power available in the University could not cope with the additional work. Lack of permanent teaching faculty, increasing instances of irregular admissions and the lack of specific schemes formulated by the University were also the reasons for not considering their application. 2. By a detailed judgment, the learned Single Judge quashed the communication with a direction to the University to ...... “pass orders on the petitioner's 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 recommendation 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.” 3. In compliance with the judgment, Ext.P9 W.A.No.825 of 2009 - 3 - communication dated 5.12.2008 was issued by the University. The application was rejected. The two reasons stated in Ext.P9 are as follows: (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 & Games is not formulated or approved by the University.” 4. The learned Single Judge found that both the reasons are absolutely unsustainable. Therefore, Ext.P9 communication was quashed with a direction to the University to formulate and approve the scheme and syllabus for the Bachelor of Coaching in Sports and Games within six weeks. There was a further direction that on completing the W.A.No.825 of 2009 - 4 - process the University shall grant affiliation to both the courses. 5. In the meanwhile, in view of the alleged contumacious conduct of the University in still rejecting the application in an apparently casual manner, the writ petitioner moved this Court for initiating contempt proceedings. 6. The learned Senior counsel appearing for the University submits that in view of the inadequacy of the infrastructural facilities in the University it may not be possible for the University to permit the petitioner to start the courses. 7. We are afraid that this contention cannot be appreciated. The teaching faculty is not of the University, but of the writ petitioner college. There exists an affiliated course in Bachelor of Physical Education. Permission sought and once recommended by the University itself is for the Masters Degree in that course and the other course is a related course - Bachelor of Coaching in Sports and Games. Such courses are available in nearby States. It is pointed out by the learned counsel for the writ petitioner that in Calicut and Kannur such W.A.No.825 of 2009 - 5 - courses are available and there is none in the south. It is significant in this context that the University does not have a case that the writ petitioner institution does not have the infrastructural facilities for the courses. It is also equally interesting to note that the appellant University has gone for umpteen number of new generation courses and the University is known for its innovation in those fields. In those areas the University does not have such contentions. 8. We fail to understand as to why despite its own recommendation, the University does not show the required 'sportsman spirit' in considering the application of the writ petitioner for courses in Sports. As aptly observed by the learned Single Judge, the reason pointed out by the University is absolutely irrelevant that if the course is sanctioned to the writ petitioner many others would also demand. That does not sound a matter of policy either. Yet another apprehension expressed by the learned senior counsel is that the course now conducted by the writ petitioner is one approved by the NCTE as a professional course whereas the Masters Degree is a non professional W.A.No.825 of 2009 - 6 - course. It is seen that the University itself had sought appropriate clarification from the NCTE as to whether it is permissible to sanction a non professional course in a college where professional course is being conducted. There are umpteen instances of such academics in Kerala and all over the country where academic educational institutions conducting both professional and non professional courses in the same campus and by the same institution. Even otherwise, the reply given by the NCTE is fairly clear that in the matter of non professional courses, NCTE has nothing to do and it is for the University to take a decision. Thus it needs no clarification that NCTE has no such objections. 9. We find that as early as on 15.10.2008 this Court had granted six weeks time to the University to formulate the scheme and after about six months also the University is repeating the same jargon that they require time to formulate the scheme. They have accepted the judgment dated 15.10.2008 in that regard. We fail to understand as to how the University is justified in again projecting that reason for W.A.No.825 of 2009 - 7 - denying affiliation to the courses on the ground that scheme has not been formulated yet. 10. On an overall assessment of the situation, the emerging picture is very clear. For one reason or the other the University does not want to sanction the courses despite the specific and positive directions issued by this Court. They have been taking different stands before this Court also. Therefore, in the interests of the public in the State and the interest of the Sports and Games also, we are of the view that a positive direction should be issued to the University to permit the writ petitioner to start the courses pending formulation of the scheme and syllabus by the University, even while dismissing the writ appeal, in view also of the pending contempt of court case. In view of Ext.P8 judgment dated 15.10.2008 in W.P.(C) No.24049 of 2008, there cannot be any objection that the writ petitioner lacks infrastructural facilities. There is a judicial pronouncement in that regard. 11. In view of the recommendation made as referred to in Ext.P8 judgment and subsequent developments, the writ petitioner W.A.No.825 of 2009 - 8 - shall be permitted to admit students. We make it clear that the admission need only be for the academic year 2009-2010 though the writ petitioner had been before this Court on earlier occasions for starting the courses from 2006-07 onwards. In view of the direction as above, the writ petitioner is also permitted to proceed with the admission process in respect of both the courses. 12. This Court is not at all happy with the conduct of the University and this is a case where exemplary costs should have been awarded, but in view of the pendency of the contempt of court case, we reluctantly refrain from doing so. Writ Appeal is hence dismissed without costs. S.R.Bannurmath, Chief Justice Kurian Joseph, Judge vns