Navaniti Prasad Singh, J.

1. State of Kerala alone is aggrieved by the judgment dated 21.12.2016 passed by the learned single Judge in W.P.(C) No.25782 of 2016 and analogous cases. These cases deal with the matter regarding affiliation of Arts and Science Colleges under different Universities in the State of Kerala. The Universities have not appealed against the judgment of the learned single Judge under appeals.

2. We have heard learned Additional Advocate General appearing for the State, learned standing counsel for the Universities and the learned counsel for the contesting respondents, who were the writ petitioners.

3. The facts and issues are simple. In challenge is G.O.(Rt) No. 178/2016/H.Edn. dated 22.08.2016 of the State Government whereby, it has resolved that no new colleges and courses would be allowed in the self financing sector in the higher education field in the State. We may mention that this State is proud of 100% literacy, but that is not carried to the collegiate level. There is dearth of educational institutions at the higher level with a large number of students moving to other neighboring States for higher education. Yet, such a decision is taken by the Government. The learned single Judge has set aside the said Government order and rightly so in our view.

4. First, we may refer to the source of power of the State to take such a decision. It is too late in the day now to contend that right to education is not a part of fundamental rights, for, at last Article 21A of the Constitution has been brought in, but in a limited sense only. Notwithstanding that, can anyone consider life andliberty dehors education? Can anyone consider trade, commerce and business without education? Can anyone consider a livelihood without education? That being the foundation, then the right to provide education would also form a part thereof. If that be so, then that can only be taken away by law and not by mere executive fiat. Therefore, one must look for the source of authority so far as the Government order aforesaid is concerned.

5. We are not dealing with higher education given by technical institutions. We are dealing with Arts and Science Colleges in general. The establishment of such colleges is regulated by various State University Acts and one of them is Mahatma Gandhi University Act, 1985 (the 'Act', for short) enacted by the Kerala State legislature. This is an enactment pursuant to Entry 25 List III of the Constitution, in relation to Education and Universities. If we refer to the scheme of the Act, the Act clearly provides that no college or institution can impart any education for the purpose of grant of degree except upon due affiliation granted by a University within the jurisdiction of which, such institution falls.

6. For grant of affiliation, there are statutes framed under the Act by virtue of Section 35. The statutes concerning the Mahatma Gandhi University are known as Mahatma Gandhi University Statutes, 1997 (the 'First Statutes', for short). Chapter 23 of the First Statutes deals with affiliation of colleges. If we refer to this chapter, we would see that any institution that requires affiliation, would have to first set up the institution, then make an application to the University for grant of affiliation. The University, after scrutinizing the application, may call for further information and then, may appoint a commission to inspect the new college, after physical verification, and submit a report. Clause 9 of the Statutes in Chapter 23 reads as follows:

“9. Grant of Affiliation: (1) The University may appoint a Commission to inspect the proposed site of a new college or to make a physical verification of the facilities that may exist for starting the new college/course, if the application is considered favourably by the University. The Commission shall inspect the suitability of the proposed site, verify the title deeds as regards the proprietary right of the management over the land (and buildin