IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 32644 of 2008(J) -------------------------- PETITIONER(S): --------------- THARANANELLUR EDUCATIONAL AND CULTURAL SOCIETY (TECS), MARAR ROAD, IRINJALAKUDA, REP. BY ITS SECRETARY, K.P.JATHAVEDAN. BY ADV. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENT(S): --------------- 1. UNIVERSITY OF CALICUT, THENHIPALAM P.O. REP. BY ITS REGISTRAR. 2. NATIONAL COUNCIL FOR TEACHER EDUCATION, SOUTHERN REGIONAL COMMITTEE, IST FLOOR, CSD BUILDING, HMT P.O, BANGALORE, REP. BY ITS REGIONAL DIRECTOR. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM. ADV. SRI.V.M.KURIAN, SC, SRC-NCTE FOR R2 SRI. P.C. SASIDHARAN GOVT. PLEADER SRI. SALAM P.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 32644/2008 ------------------------------------------------------------------- EXT.P1 TRUE COPY OF CONDITIONAL RECOGNITION. EXT.P2 APPLICATION DT. 25-10-2007. EXT.P3 COMMUNICATION DT. 20-6-2008 EXT.P4 ORDER DT. 28-8-2008. EXT.P5 REPRESENTATION DT. 19-9-2008. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R1(a) COMMUNICATION DT. 10-10-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 32644 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st August, 2009. J U D G M E N T The petitioner is a society registered under the Travancore- Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. In pursuance of their desire to start a B.Ed. College, they approached the National Council for Teacher Education. By Ext. P1 order dated 9-8-2007, they were granted a conditional recognition for starting a B.Ed course for one year with an annual intake of 100 students at Marari Road, West Nada, Irinjalakuda, Thrissur . With the support of that recognition, the petitioner submitted Ext. P2 application on 25-10-2007 before the 1st respondent-University for affiliation to the course. On 23-4-2008, an inspection committee was deputed by the University for inspecting the college. Pursuant thereto, Ext. P3 report was submitted by the inspection committee pointing out the following defects: “(1) Infrastructure is not sufficient. Even though a temporary infrastructure is available, details of the required area of land and the plan is not furnished. (2) The setting up of Lab and Library is not done. (3) The Management haven't appointed any faculty, even a Principal. (4) Final consent of the Apex body is not obtained. (5) There are B.Ed colleges within a radius of 20 k.m.” 2. In the meanwhile, the petitioner obtained Ext. P4 permanent recognition for the course from the academic session for 2008-2009 onwards. Against Ext. P3 report, the petitioner submitted Ext. P5 objection regarding the defects pointed out therein, which reads thus: “With reference to the above, we are submitting the W.P.C. No. 32644/08 -: 2 :- following for your kind attention and consideration. Reply to the deficiency No.1 - regarding the Land & Building:- The institution has 2.26 acres of land and a permanent building of more than 11,000 sqr. Feet taken out for lease for 30 years. Following documents are submitted for the evidence. (a) Copy of lease deeds (b) Building plan showing required space and rooms to start the B.Ed. College. (c) Copy of NOC from the local authority that the building can be used for educational purposes. Reply to the deficiency No. 2 – Regarding Laboratories and Library. We have already arranged all kinds of Laboratories and Library with Journals, Periodicals, CD ROMs, Educational Books and General Books required for commencing B.Ed. College which were inspected and approved by the NCTE. Following documents are submitted. (a) A CD covering all infrastructural facilities arranged by the institution. Reply to the deficiency No. 3 – Regarding the appointment of Principal and Teaching Staff. Institution has appointed a qualified Principal and 7 other teaching staff. We have also appointed needed supporting and non-teaching staff. Following are submitted. (a) List of teaching staff with Photograph. (b) List of supporting and non-teaching staff with Photograph. Reply to the deficiency No. 4 – Regarding the recognition of Apex body. We have already received the final recognition (unconditional) of NCTE. A copy of the recognition order issued by the NCTE is enclosing herewith.” Despite the same, affiliation was not granted. It is under the above circumstances the petitioner has filed this writ petition seeking the W.P.C. No. 32644/08 -: 3 :- following reliefs: “(i) Issue a writ of mandamus or any other appropriate writ, order or direction to quash Ext. P 3 report submitted by the commission deputed by the 1st respondent University. (i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent University to grant affiliation to the B.Ed courses applied for by the petitioner vide Ext. P 2 application, forthwith. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent University to grant provisional affiliation to the B.Ed courses applied for by the petitioner for the academic year 2008-09 pending final decision on Ext. P2 application for affiliation.” 3. According to the petitioner, the 2nd respondent had granted Ext. P4 recognition after being satisfied that the petitioner has all instructional facilities, infrastructural facilities, library, accommodation, financial resources, library etc., for running the course and has selected/appointed duly qualified teaching staff as per NCTE norms. In such circumstances, in view of the Full Bench decision of this Court in Vikram Sarabhai Ednl. Trust and B.Ed. College v. University of Calicut and another, 2008(2) KLT 1027, the University has no option but to grant affiliation, is the contention of the petitioner. 4. A counter affidavit and an additional counter affidavit have been filed by the University, in which the stand taken is that the petitioner does not have the infrastructural facilities for conducting the course. It is submitted that the Syndicate had, in its meeting held on 17-8-2009, considered the application of the petitioner for affiliation and rejected the same. The contention is that as per clause 25 of Chapter 23 of the Calicut University First Statutes 1977, the petitioner should have proprietary right over the land on which the building for conducting the course is established. Here, according to W.P.C. No. 32644/08 -: 4 :- the University, the petitioner-Society does not have proprietary rights over the land in question and admittedly they only have leasehold rights over the property. Therefore, according to the University, the petitioner is not entitled to affiliation for the college. 5. I have considered the rival contentions in detail. 6. I am of opinion that the contentions of the University are not sustainable in view of the decision of the Full Bench in Vikram Sarabhai Ednl. Trust's case (supra). Ext. P4 recognition starts with the following paragraph: “AND WHEREAS on scrutiny/perusal of the application submitted by the institution, the documents attached therewith, the affidavit and the input received from the visiting team in the form of report and videography, institution/society fulfills the requirements under the provisions of NCTE Act, Rules and relevant Regulations including the Norms and Standards for the Secondary Teacher Education programme such as instructional facilities, infrastructural facilities, library, accommodation, financial resources, laboratory etc., for running the programme and has selected/appointed duly qualified teaching staff as per NCTE norms.” Therefore, the 2nd respondent NCTE is satisfied that the petitioner has all the instructional facilities, infrastructural facilities, library, accommodation, financial resources, laboratory etc., for running the programme and has selected/appointed duly qualified teaching staff has per NCTE norms. In the decision of the Full Bench, of course, in paragraph 13, this Court has held that the University can challenge the recognition granted by filing an appeal before the National Council for Teacher Education or even challenge the recognition before this Court by filing a writ petition. It has also been held that in an appropriate case where recognition has been obtained by fraud, the University may even collaterally attack the validity of the recognition granted, in enforcement proceedings like the writ petition. That right is available to the University only if they have a W.P.C. No. 32644/08 -: 5 :- case that recognition has been obtained by fraud. In the two counter affidavits filed in this writ petition, the University has no case whatsoever that the petitioner has obtained the recognition by fraud. In the Full Bench decision, this Court had held as follows in paragraph 15: “15. We have already answered the point referred for our decision that there is no conflict between the decision of the Apex Court and that of the Division Bench of this Court mentioned above. Going by the materials on record, we find it difficult to hold that this is a case where no facilities are provided for the conduct of the course. If the inspection report of the University is correct, certain facilities may be inadequate in accordance with the NCTE norms and to that extent, the grant of recognition by the NCTE may not be proper. But, we think, this is not the forum to adjudicate this dispute, as this is not a case of “no facilities” or the recognition is obtained by fraud. The University , therefore, cannot be permitted to collaterally attack Ext. P1 in this writ petition. It has to take recourse to the remedies available to it under the Statute against the grant of recognition by the Southern Regional Committee of the NCTE allegedly without the essential infrastructural facilities. Of course, if this was a case, where no facilities were provided, this being a discretionary jurisdiction, we would have declined to issue any direction in favour of the petitioner. But, this being a marginal case, until the recognition is stayed or set aside by the competent authority, we are of the view that the University is bound to act under S.14(6) of the NCTE Act and grant affiliation. If there are other requirements to be satisfied by the petitioner like payment of any fee etc., which are not at variance with the NCTE Act, the Regulations framed thereunder and the decision of the NCETE, then the University may ask the petitioner to comply with such requirements within a time frame and thereafter grant affiliation. Condition No. 4 of Ext. P1 cannot override the mandatory provisions of the NCTE Act. The said condition should be read down to make it in conformity with the provisions of S. 14(6) of the said Act. If, so far, the University has not granted affiliation to the petitioner's college, pursuant to the interim order of this Court , the same shall be done within one month from the date of production of a copy of this judgment. If Ext. P1 order is stayed, modified or recalled by the competent authority or Court, needless to say, this direction to grant affiliation will be subject to such orders.” In the above circumstances, in view of the Full Bench decision, I am satisfied that the University cannot collaterally attack the recognition W.P.C. No. 32644/08 -: 6 :- itself in this writ petition. Their remedy lies in approaching the NCTE as held in the abovesaid decision. Of course, the University would contend that they have already approached the NCTE by Ext. R1(a) letter dated 10-10-2008. It is for the University to pursue Ext. R1(a) or any other proceedings in that regard. But, going by the Full Bench decision, the University has no other option but to grant affiliation. 7. In fact, the contention of the University regarding the defects themselves appear to be unconvincing. The reasons stated by the inspecting committee have been replied to by the petitioner by Ext. P5. The University has not countered the explanation given by the petitioner even in their counter affidavits. Discarding the inspection committee report, their only contention now is that the petitioner does not have exclusive proprietary rights over the land and the building thereon as required under Statute 25 of Chapter 23 of the Calicut University First Statutes, 1977. I specifically asked the learned counsel for the University as to whether all affiliations granted by the University are to colleges which have absolute ownership rights over the land in question and as to whether they have not granted affiliation to colleges established in leased premises. Counsel for the University could not answer either way. Further, counsel for the petitioner points out that the land and building belong to the promoters of the society, who have leased the same to the society. In any event, that is a matter which the NCTE has inspected and ascertained. Therefore, as held by the Full Bench, unless the University gets the recognition cancelled by approaching the NCTE, they cannot now deny affiliation to the petitioner. 8. The University has also got a contention that the application submitted by the petitioner is for the academic year 2007-08 and therefore the affiliation cannot be granted now. But, the petitioner W.P.C. No. 32644/08 -: 7 :- points out that as is clear from Ext. P3 inspection report, the inspection by the University themselves was for starting a new college for the year 2008-2009 and 2009-2010. He also points out that as per the second proviso to the first Statute of Chapter 23 of the Calicut University First Statute, 1977, an application for affiliation of colleges and courses received by the University shall be valid for two academic years. In view of the said provision, I do not find any merit in the objection raised by the University in this respect also. 9. In view of the above findings, I allow the writ petition as follows: The 1st respondent shall grant affiliation to the petitioner for the B.Ed. course in accordance with Ext. P4 recognition granted by the NCTE, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. In anticipation of the affiliation, the petitioner can admit students and start the course after complying with the formalities prescribed, this year itself. If any allotment has to be made by the Commissioner of Entrance Examinations for admission, he shall do so in respect of the petitioner- college also along with other colleges from this year itself. Sd/- S. Siri Jagan, Judge. Tds/