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1989 Supreme(Kar) 303
Karnataka High Court
Al Ameen Educational Society - Appellant
Versus
State of Karnataka - Respondent
Decided On : 09-06-89
W.P. : 3148 of 1988
DEVADAS, H.S.Jois, J.A.SEQUEIRA, K.R.D.KARANTH, MOHANRANGAM, N.B.BHAT, SHIVARAJ PATIL, U.R.Malimath, V.C.BRAHMAIAYAPPA
The right to affiliation does not automatically flow out of art. 30, though without affiliation the right to establish and administer an educational institution of one's choice may become illusory.
Headnote:
The Karnataka State Universities Act, 1976 (the Act) vests a wide but guided power in the University and the State government, while considering an application for affiliation by a college. The Act does not impose a mandatory duty to grant affiliation, just because, the applicant satisfies the conditions enumerated in Section 53 (2). The University and the State have other responsibilities to be discharged to safeguard the public interest, and the legislature has seen to it by enacting inter alia Section 53 (4), 553 (5) and 53 (10) of the Act in this regard. The right to affiliation does not automatically flow out of art. 30, though without affiliation the right to establish and administer an educational institution of one's choice may become illusory. The State is entitled to consider the reasonableness of the requirement of a minority institution when it seeks affiliation, having regard to the existing number of affiliated and recognised institutions imparting education in the particular subject, in the background of the requirements of the State and the state's capacity to absorb the graduates (or the diploma holders) in the employment, the possible outflow of a few such qualified persons from the State. The State has to perform a balancing act while considering these and other relevant matters, while considering the requirement of a minority group for affiliation or recognition.
Fact of the Case:
The appellants are institutions organized by persons who claim to be religious minorities (three by the Muslims and one by the Jains). They resolved to start a B. Ed. College or Teaching Training institute; but the Government rejected the same in view of the policy decision not to permit any such new institutions during the VII Plan period.
Finding of the Court:
The court held that the right of affiliation is controlled by the provisions of Section 53 (1) of the act. The language of Section 53 (1) cannot be said to be mandatory, but directory. Even otherwise assuming that it is mandatory, the mandate of Section 53 (1) of the Act is always subject to the Constitutional provisions, namely, the provisions dealing with fundamental rights as also the provisions dealing with Directive Principles. The court further held that the State is entitled to consider the reasonableness of the requirement of a minority institution when it seeks affiliation, having regard to the existing number of affiliated and recognised institutions imparting education in the particular subject, in the background of the requirements of the State and the state's capacity to absorb the graduates (or the diploma holders) in the employment, the possible outflow of a few such qualified persons from the State.
Issues: 1. Whether the provisions of Section 53 of the Act are mandatory and impose an enforceable duty to grant affiliation to an institution which satisfies all the conditions falling under Section 53 (2) of the Act. 2. Whether the minority institutions are entitled to the affiliations sought as a matter of right flowing out of Art. 30 of the Constitution. 3. Whether the appellants were discriminated by the respondents in not granting the affiliation, in view of the fact that a few other institutions were granted affiliation and in a few existing institutions intake strength of students, were increased.
Ratio Decidendi: The court held that the provisions of Section 53 of the Act are not mandatory and do not impose an enforceable duty to grant affiliation to an institution which satisfies all the conditions falling under Section 53 (2) of the Act. The court further held that the minority institutions are not entitled to the affiliations sought as a matter of right flowing out of Art. 30 of the Constitution. The court also held that the appellants were not discriminated by the respondents in not granting the affiliation, in view of the fact that a few other institutions were granted affiliation and in a few existing institutions intake strength of students, were increased.
Final Decision: The appeals were dismissed.
( 2 ) THE facts, are similar in all the cases; (except in W. A. No. 1738/1988 which pertains to the permission to start an institution to train students for TCH course ).
( 3 ) THE appellant in W. A. No. 1332/1988 resolved to start a B. Ed. , College in the Bangalore University area and hence made an application seeking affiliation to the Bangalore University, on 10-10-1986. The Committee constituted by the University recomended the grant of the affiliation of the academic year 1987-88, with an intake of 100 students. However, the Syndicate and the academic Council for the University were constrained to hold up the consideration of the question of affiliation, in view of the government's decision not to permit any such new College during the VII Five Year plan period.
( 4 ) THE appellant in W. A. No. 1601/1988 is from Tumkur, resolved to start a B. Ed. , College and sought affiliation from the Bangalore University; the Local Enquiry committee of the University recomended the grant of affiliation; but in view of the governmental decision (referred already) the affiliation was not granted.
( 5 ) THE appellant in W. A. No. 78/1989 is from Belgaum and is an institution of Jains (a religious minority in Karnataka ). It sought affiliation to Karnataka University for its b. Ed. , College meant exclusively for women, the Local Inspection committee of the university recommended its case, In the hope the affiliation would be granted, if admitted 75 girl students to its institution. In view of the Governmental policy decision, not to permit new, such Colleges during the vii Plan Period, the petitioner's application was also turned down.
( 6 ) THE appellant in W. A. No. 1738/1988 is from Kolar, wherein, it was constituted by the Muslims. It resolved to start a Teachers' training Institute; but the Government rejected the same in view of the policy decision not to permit any such new institutions during the VII Plan period.
( 7 ) THE appellant in W. A. No. 1675/1988 is running a few educational institutions in Bellary and decided to start a B. Ed. , College for women for which purpose it sought affiliation from Gulbarga University. In spite of the recommendation of the University, its application was not granted in view of the government's policy decision (referred already ).
( 8 ) ACCORDING to the petitioners (other than Eversine Educational Trust), they are governed by the provisions of the Karnataka state Universities Act, 1976 (referred to as 'the Act' hereinafter) and since they satisfied the requirements of Section 53 (2) of the Act, they were entitled to the grant of affiliation; according to them Section 53 of the Act, was a mandatory provision which directs the grant of affiliation whenever the statutory requirements are satisfied. The rejection of the petitioners' prayer for affiliation was attacked as arbitrary, based on the policy decision of the State Government, which according to the petitioner, was void and liable to be ignored.
( 9 ) THE petitioners, who claim to be minority institutions, raised an additional plea, claiming a right of affiliation in them as flowing out of Art. 30 of
