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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, A.M. SHAFFIQUE, JJ.
Kerala Arts & Science Unaided College Management Association - Appellants
Vs.
State of Kerala and Ors. - Respondent
W.A. Nos. 1265, 1243, 1259 and 1472 of 2013
Decided On : 26-09-2014
AFFILIATION OF UNAIDED COURSES IN AIDED COLLEGES - WHETHER PERMISSIBLE - WHETHER DISCRIMINATORY AND ARBITRARY - WHETHER RATIO OF DIVISION BENCH JUDGMENT IN W.A. NO. 2096 OF 2009 (CALICUT UNIVERSITY AND ANOTHER V. CHRIST COLLEGE) LAYS DOWN THAT IN AN AIDED PRIVATE COLLEGE NO SELF FINANCING COURSE/SUBJECT CAN BE PERMITTED; PERMITTING SELF-FINANCING COURSE/SUBJECT IN AN AIDED PRIVATE COLLEGE SHALL LEAD TO UTILISATION OF SERVICES OF TEACHING AND NON-TEACHING STAFF AND ALSO THE INFRASTRUCTURE - WHETHER PETITIONERS/APPELLANTS HAD NO LOCUS STANDI TO FILE THE WRIT PETITIONS.
Fact of the Case:
The appellants, who are private unaided colleges, challenged the affiliation granted by the University to different unaided/self financing courses in the aided colleges. The petitioners contended that the University cannot grant permission to run self financing courses in an existing aided college and that aided institutions are using the infrastructure, teaching and non-teaching staff for the purpose of running the self-financing courses which was never the intention of the University Act or Statute. The petitioners also contended that the State Government ought not to have granted no objection certificate to these colleges to run self-financing courses. The respondents, which included the University, the State Government, and the aided colleges, contended that affiliation of unaided courses in aided colleges is fully permissible as per the Mahatma Gandhi University Act and Statutes and that there is no statutory restriction in any provision of the Act or Statutes from granting affiliation to new courses in aided institutions under the self-financing scheme.
Finding of the Court:
The Court held that there is no statutory restriction on the power of the University and the State Government to sanction new courses/subjects in unaided stream in an existing aided College. The Court further held that running of unaided courses/subjects in aided private Colleges is not discriminatory and arbitrary for the students taking education in two different types of institutions. The Court also held that the ratio of the Division Bench judgment in W.A. No. 2096 of 2009 (Calicut University and Another v. Christ College) does not lay down that in an aided private college no self financing course/subject can be permitted; permitting self-financing course/subject in an aided private college shall lead to utilisation of services of teaching and non-teaching staff and also the infrastructure. Finally, the Court held that the petitioners/appellants had locus standi to file the Writ Petitions.
Issues: 1. Whether various University Acts and its Statutes framed thereunder do not permit/prohibit running of unaided courses/subjects in aided private colleges? 2. Whether running of unaided courses/subjects in aided private colleges is discriminatory and arbitrary for the students taking education in two different types of courses, i.e., aided and unaided? 3. Whether the Division Bench judgment in W.A. No. 2096 of 2009 (Calicut University and another v. Christ College) lays down the ratio (i) that in an aided private college no self financing course/subject can be permitted; (ii) permitting self-financing course/subject in an aided private college shall lead to utilisation of services of teaching and non-teaching staff and also the infrastructure? 4. Whether the petitioners/appellants had no locus standi to file the Writ Petitions?
Ratio Decidendi: 1. The Court interpreted the relevant provisions of the Mahatma Gandhi University Act, 1985 and the Statutes framed thereunder and held that there is no statutory restriction on the power of the University and the State Government to sanction new courses/subjects in unaided stream in an existing aided College. 2. The Court held that the fee structure and admission procedure in private institutions has been subject consideration before the Apex Court in several judgments and that charging of the capitation fee by the private institutions has already been disapproved by the Apex Court. The Court further held that the argument that charging of fee on the student is arbitrary cannot be accepted since the fee structure is controlled by the Government with regard to an unaided course. 3. The Court interpreted the Division Bench judgment in W.A. No. 2096 of 2009 (Calicut University and Another v. Christ College) and held that the observations made by the Division Bench were made in the context of a case where the college claimed that they are going to establish self financing institution separately for degree course in Physical Education and that the said observations were not made in a case where additional courses/subjects were sought to be opened in an existing aided college and affiliation in that regard was asked for. 4. The Court held that the petitioners/appellants had locus standi to file the Writ Petitions, relying on the judgment of the Apex Court in M.S. Jayraj v. Commissioner of Excise.
Final Decision: The Court dismissed all the Writ Appeals.
Ashok Bhushan, J.
1. These four Writ appeals have been filed against the common judgment dated 02/08/2013 of a learned Single Judge by which judgment all the Writ Petitions were dismissed. W.A. No. 1265 of 2013 is being treated as the leading Writ Appeal and reference to the pleadings in the above Writ Appeal shall suffice to decide all the Writ Appeals. Brief facts giving rise to the Writ Appeals need to be noted are: The appellants shall hereinafter be referred to as the Writ Petitioners and the respondents as respondents to the Writ Petitions. Writ Petition No. 7361 of 2013 giving rise to W.A. No. 1265 of 2013 was filed by the Kerala Arts and Science Unaided College Management Association impleading the State of Kerala as respondent No. 1, University Grant Commission as respondent No. 2, Mahatma Gandhi University as respondent No. 3, Calicut University as respondent No. 4, Kerala University as respondent No. 5 and the Kannur University as respondent No. 6. Respondent Nos. 9 to 28 are the different private colleges affiliated to Universities. The Writ Petition was filed by the petitioner aggrieved by the action of respondents 3 to 6, Universities in permitting the aided colleges receiving aid from the Government to conduct unaided courses. The petitioner in W.P.(C) No. 7361 of 2013 claimed to be the Association of unaided College Management whereas petitioner in Writ Petition No. 18120 of 2013, giving rise to W.A. No. 1243 of 2013, is the CET College of Management & Science and Technology, Ernakulam, Kerala, through its Secretary. Petitioner in Writ Petition No. 8554 of 2013, giving rise to W.A. No. 1259 of 2013, is a student of St. Pauls Arts and Science College, Kalamassery, Aluva studying in B.A. (Economics) whereas the petitioner in W.P.(C) No. 18124 of 2013, giving rise to W.A. No. 1472 of 2013, is the llahia College of Arts & Science and Technology, through its Manager.
2. Management of different private colleges who have come up in the Writ Petitions objects to the affiliation granted by the University to different unaided/self financing courses in the aided colleges. Petitioner's case in the Writ Petition is that the University cannot grant permission to run self financing courses in an existing aided college. Petitioner's case further is that aided institutions are using the infrastructure, teaching and non-teaching staff for the purpose of running the self-financing courses which has never been the intention of the University Act or Statute. It is the further case that the State Government ought not have granted no objection certificate to these colleges to run self-financing courses. Reliance on a Division Bench judgment of this Court in W.A. No. 2096 of 2009 dated 01/02/2011 in Calicut University and another v. Christ College, Irinjalakuda has been referred to. Reference has also been made to a letter dated 08/06/2011 of the University of Calicut where decision of the Syndicate has been communicated to the Principal that the Syndicate has resolved that no aided colleges be permitted to admit students for self-financing UG and PG programmes from the academic year 2011-2012. Further letter dated 16/06/2011 has been brought on record as Ext. P3 by which the decision of the Syndicate dated 07/05/2011 referred to in the letter dated 08/06/2011 was kept in abeyance until further orders. In the Writ Petition Ext. P4 was filed, which is a letter dated 17/10/2012 issued by the Mahatma Gandhi University where enhancement of fee related to granting of affiliation to colleges has been notified. Petitioner in Writ Petition No. 7361 of 2013 claimed to have submitted a detailed representation dated 20/12/2013 before the Principal Secretary, Higher Education Department, Government of Kerala praying that aided colleges be prohibited to take up self-financing courses. In the above background Writ Petition No. 7361 of 2013 was filed praying for the following relief’s :
"(i) to issue a writ in the nature of mandamus or any ot
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