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2021 Supreme(Online)(KER) 30239
HIGH COURT OF KERALA
THE MALABAR EDUCATIONAL AND CHARITABLE TRUST – Appellant
Versus
THE UNIVERSITY OF KANNUR – Respondent
WP(C)/28874/2020
The right to establish educational institutions is fundamental, and blanket restrictions imposed by the government undermine this right, requiring adherence to statutory regulations.
Headnote:
Education - Higher Education Affiliation - Kannur University First Statutes - Statute 1, 9(g), 26(1)(a) - The court found the government's exclusive granting of permission for new colleges to co-operative institutions unconstitutional, reinforcing that citizens have a right to establish educational institutions subject to statutory regulations.
Fact of the Case:
The petitioner sought judicial intervention against a university notification limiting new college applications to the co-operative sector, alleging it violated the constitutional right to establish educational institutions and university statutes.
Finding of the Court:
The court ruled that both the government's order and the university's notification imposing a sector restriction were unconstitutional, infringing on the fundamental rights under Articles 14 and 19(1)(g) of the Constitution.
Issues: Whether the government's directive limiting new college applications to co-operative institutions violated constitutional rights and statutory provisions.
Ratio Decidendi: The court determined that the government's exclusive policy infringed on the individual's right to establish educational institutions, necessitating a case-by-case evaluation instead of blanket restrictions.
Final Decision: The court declared the government order and university notification unconstitutional, allowing the petitioner to apply for a new college.
JUDGMENT
The petitioner, namely, Malabar Educational and Charitable Trust, is running a Self-Financing B.Ed. Training College, with the approval granted by the National Council for Teacher Education and provisional affiliation granted by the 1st respondent Kannur University. The document marked as Ext.P1 is the proceedings of the 1st respondent University dated 25.05.2006 granting provisional affiliation to Malabar B.Ed. Training College, Kannur, for B.Ed. Course with an intake of 75 students, for the academic year 2005-06. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 notification dated 30.11.2020 issued by the 1st respondent University, whereby applications are invited for starting new colleges (except engineering/medical and allied subjects) from co-operative sector alone, during the academic year 2021-22. As per Ext.P2 notification, the last date for receipt of applications along with necessary documents and application fee was on or before 31.12.2020, 5:00 p.m. The petitioner has also sought for a writ of mandamus commanding the respondents to permit it to make application for affiliation, in accordance with law, after issuing a proper notification, within a time frame to be fixed by this Court. The document placed on record as Ext.P3 is a copy of publication released by the 1st respondent university on 30.11.2020, wherein it has been stated that, for starting new colleges during the academic year 2021- 22, applications are invited from co-operative sector. The document marked as Ext.P4 is the relevant extract of Chapter V of the Kannur University First Statutes , 1998, which deals with affiliation of colleges.
2. In the writ petition, it is stated that, the petitioner is desirous of starting new colleges in Kannur District. To the surprise of the petitioner, the 1st respondent University issued Ext.P2 notification dated 30.11.2020, inviting applications for starting new colleges, during the academic year 2021-22, from co-operative sector alone, in clear violation of the provisions of Chapter V of the Kannur University First Statutes , 1998 and also
3. On 22.12.2020, when this writ petition came up for admission, the learned Standing Counsel for the 1st respondent University, representing respondents 1 to 3, sought time to get instructions and file statement.
4. On 14.01.2021, the learned Standing Counsel for the University filed a statement on behalf of respondents 1 to 3, stating that, in tune with Statute 1 of Chapter V of the Kannur University First Statutes , 1998, the University invited applications for starting new colleges, for the academic year 2021-22, based on the resolution adopted by the Syndicate vide item No.2020.547 dated 17.11.2020. The State Government, vide Annexure R1(a) order, i.e., G.O.(Ms.)No.299/2020/H.Edn. dated 20.08.2020 declared the policy for starting new colleges in Government sector and unaided sector, as per which, permission for starting new colleges can be granted exclusively to co- operative institutions, which have sufficient financial background and prior experience in running educational institutions. As per the policy, sanctioning of new colleges in aided sector is not being considered for the time being. Based on the Government policy, the Syndicate of the 1st respondent University in its meeting held on 17.11.2020 decided to invite applications for starting new colleges, during the academic year 2021-22, from co-operative sector alone. Therefore, there is absolutely no arbitrariness or illegality in issuing Ext.P2 notification, limiting applications for starting new colleges from co-operative sector alone. As per Statute 9(g), Chapter V of the Kannur University First Statutes , the University has to ascertain the views of the State Government, for the purpose of granting affiliation. The State Government has issued the order dated
