Sree Narayana Educational And ... vs State Of Kerala
2021 Latest Caselaw 14624 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                    THE HONOURABLE MR. JUSTICE AMIT RAWAL
         WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                            WP(C) NO. 2616 OF 2019
PETITIONER/S:
            SREE NARAYANA EDUCATIONAL AND CHARITABLE SOCIETY,
            KOLLENGODE HAVING ITS OFFICE AT NO.208 H/VI, AYYAPPANKAVU,
            VALIYANGADI, KOLLENGODE POST, PALAKKAD, REPRESENTED BY ITS
            SECRETARY.

             BY ADVS.
             JACOB SEBASTIAN
             SRI.K.V.WINSTON
             SMT.ANU JACOB


RESPONDENT/S:

     1       STATE OF KERALA,
             REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION
             DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,
             THIRUVANANTHAPURAM-695001.

     2       THE DIRECTOR OF COLLEGIATE EDUCATION,
             DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS
             BHAVAN, THIRUVANANTHAPURAM-695033.

     3       REGIONAL DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
             REGIONAL DIRECTORATE OF COLLEGIATE EDUCATION, GOVERNMENT
             TRAINING COLLEGE COMPOUND, PALACE ROAD, THRISSUR-680020.

     4       THE UNIVERSITY OF CALICUT,
             REPRESENTED BY ITS REGISTRAR, TENHIPALAM, MALAPPURAM-673636.

             BY ADV GOVERNMENT PLEADER


OTHER PRESENT:
            GP SRI B HARISH KUMAR , SRI P C SASIDHARAN SC


     THIS   WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 2616 OF 2019
                                    2



                            JUDGMENT

By Ext.P4 order of the Government dated 8 th October 2018,

the request of the petitioner Society to start a new private self

financing college was rejected.

2. Petitioner, Sree Narayana Educational and Charitable

Society was set up in the year 1998 with the aim of engaging in

educational, charitable and social welfare activities. On

21.11.2016, an application on behalf of the petitioner was

submitted to the 4th respondent, the University of Calicut seeking

permission to start a new college, Ext.P1. University vide letter

dated 26.8.2017 forwarded the list of colleges along with the

copy of the minutes of the syndicate held on 20.6.2017 to obtain

NOC from the Government before the colleges could be allowed

to commence intake of students vide Ext.P2.

3. On 17.8.2017 officers of the third respondent, ie.,

Regional Deputy Director of Collegiate Education inspected the

college and as per the information it was reported that the WP(C) NO. 2616 OF 2019

college had the entire necessary infrastructure. In the absence of

any progress, the petitioner approached this Court vide

W.P.(C) No.25181/2018; this Court vide order dated 8.10.2018,

Ext.P4 directed the Government to take a decision with regard to

NOC.

4. Learned counsel appearing on behalf of the petitioner

submits that vide Ext.P14 respondent, Government have

erroneously rejected the permission to start private self financing

colleges dehore of the fact the University had vide Ext.P2 not only

approved but recommended that the new college could be set up.

This Court in Global Institute of Architecture vs. Secretary

Higher Education Department reported in 2016 (4) 560

held that once approval has been granted by the technical body

and affiliation given by the University, there was no scope for any

further objection or disapproval by the State Government.

5. On the contrary, learned counsel appearing on behalf of

the respondent opposed the aforementioned prayer and

submitted that the impugned order Ext.P4 rejecting the issuance WP(C) NO. 2616 OF 2019

of NOC by the Government was based upon a report Ext.R1(b)

whereby guidelines on education loan repayment support scheme

were laid out. It was found that in the revised project of 2016-17

and 2017-18, Government decided to help the students hailing

from low to middle income group who had availed education

loans from the banks and other financial institutions but was

struggling to repay the loan owing to the factors such as

unemployment or low pay packages.

6. Government had undertaken to bear 50% of principal

outstanding subject to the maximum of Rs.2,40,000/- in cases

where Banks were willing to settle the loan account through a

special package scheme of banks. As per the study, it revealed

that the vacancies which remained unfilled from academic year

2013-14 to 2017-18 were tremendous and it is on that account, it

was found unfeasible for issuance of no objection certificate.

The aforementioned study was not only at under Graduate Level

but Post Graduate as well. In support of the contentions, relied

judgment of the Supreme Court in Jawaharlal Nehru WP(C) NO. 2616 OF 2019

Technological University Registrar v. Sangam Laxmi Bai

Vidyapeet & Ors. (2019) 2 LW 514. Similar controversy

arose, the High Court considered the rejection of issuance of

NOC by the University and its approval by the Government on

the ground that it was upon the institute whether setting up of

the self financing college would be economically viable as no

educational agency would take up the venture until and unless

there was some scope of not only sustainability but also achieved

the aims and objects as set out in the memorandum for seeking

registration of the society and urged this Court for dismissal of

the writ petition. It was also contended that the judgment

referred by the counsel for the petitioner was of 2016 whereas

the Supreme Court judgment is of 2018 decided on 29.10.2018.

7. I have heard the learned counsel for the parties and

appraised the paper book. The Government while rejecting the

no objection certificate assigned following reasonings as recorded

in Ext.P4.

In WP(C)No.25181/2018, the Hon'ble High Court has directed the State Government to take a decision at the earliest in the WP(C) NO. 2616 OF 2019

matter of granting NOC to Sree Narayana Educational & Charitable Society, Kollengode, Palakkad to start a new self- financing college.

Government have examined the matter in in the light of Plan for State Higher Education with Special Reference to Arts & Science Colleges in Kerala' prepared by Kerala State Higher Educational In Kerala, all the Arts Science colleges are affiliated to mainly Kerala, Mahatma Gandhi, Calicut and Kannur Universities. As on March 2018, there are 677 Arts & Science colleges consisting of Government, Government aided & self-financing colleges in affiliated to the said Universities, according to the report. The fastest growing stream in Arts and Science College category has been the self-financing colleges. It increased from 354 in 2013-14 to 458 in 2017-18. This has resulted in an increase in the number of Arts and Science colleges in the universities from 554 in 2013-14 to 675 in 2017-

18.

In the case of University, the total number of Arts and Science colleges increased from 212 to 262 during the period from 2013-14 to 2017-18. The increase in the total number of colleges is mainly due to the increase in the number of self- financing colleges from 139 in 2013-14 to 180 in 2017-18. Under the Calicut University, the total number of seats at the UG level in the self-financing stream was 41513 during 2017-

18. The unfilled seats at the level in the self financing stream was 9520 in 2017-18. A picture is at the PG also. The total seats at the PG level in the self-financing stream increased from 1716 in 2013-14 to 3710 in 2017-18. The number of unfilled seats also increased steadily from 477 in 2013-14 to 1864 in

The number of seats in the self-financing colleges is substantial. The rising trend of seats in these is reflective of the falling standards and quality of teaching-learning in these institutions. It is seen that, in spite of the availability of large number of vacant seats in the private colleges/courses, the number of students who have opted for private study has increased very substantially. The number of students aspiring for higher education have now parallel opportunities offered by the Universities in the State for enabling education through private registration or distance mode of education. WP(C) NO. 2616 OF 2019

For Government institutions, the State has been providing necessary funding in the higher education sector from the public resources for improving and developing the infrastructural facilities. These colleges provide quality education, and merit is the sole criterion for selection and admission. The maintenance of quality resulted in an increase in the flow of aspiring students to these colleges. It is therefore an undisputed fact that, unfilled seats in these groups are very minimal.

Hence it would not be in the interests of the State, society, students and the public to allow any more private self-financing colleges to be established. Considering all these facts, application of Sree Narayana Educational & Society, Kollengode, Palakkad for starting a new college in private self- financing stream is hereby rejected.

Thus the direction of the Hon'ble High Court in WP(C)No.25181/2018 to take a decision on the request of the petitioner, is complied with.

8. Though at the first glance, it looked that the decision of

the Government amounted to violation of the fundamental right

ie., under 1(g) of the constitution of India as it cannot regulate

the affairs of the college, particularly, when the University had

granted no objection for setting up of a self financing institutions,

similar observation were given by the High Court of Telangana in

Jawaharlal Nehru Technological University Registrar

(supra) whereby the High court relying upon the following

observations, allowed the writ petition. The observations have WP(C) NO. 2616 OF 2019

been recorded in Para 8 of the judgment of the Supreme Court

which reads as under:

8. The High Court by the impugned judgment and order had allowed the writ application. It has observed that grant of NOC will not enable an institution to start a course. They have several other hurdles to be cleared for starting D. Pharma. The High Court has held that Regulations 5.2, 5.3 and 6 of the 2017 Regulations are valid. The vires of the regulations has been upheld. However, the High Court held that policy decision taken by the Government not to allow new courses to be started is not in terms of section 20 of the Act of 1982 as the provision does not vest power upon the Government to declare a holiday on the that a lot of seats are going vacant. The High Court has observed that in case the seats are going vacant educational institutions will automatically shut down courses for which there is no demand. Unless starting of a course or running of an existing course is economically viable, no educational agency would take up the venture. That is the concern of the educational agency and not of the Government or of the University. where The High Court has further observed that uneducated unemployed may find a course r energies can be channelized and it is better to have educated unemployed rather than their to have breed of uneducated unemployed. The perspective plan prepared by the Government has also been considered. It has been observed that seats remaining vacant cannot be the sole criterion for refusal of NOC. The enrolment of students in Pharma D. has registered a marginal over the years. The University has been directed to grant NOC. Thereafter, it will be open increase the and PCI to examine the application of the petitioner for D. Pharma course and thereafter it will be open to the University to examine with reference to its own Statutes as to whether petitioner may be granted affiliation or not. Aggrieved by the same, the appeal has been preferred.

9. Negating the aforementioned argument relied upon the

various facts in para 21; supreme court held as under: WP(C) NO. 2616 OF 2019

The decision taken by the State Government impose moratorium as apparent from facts reflected perspective based on survey and supported by the data. Considering the fact that seats are abegging. Even 2017-18 the Pharmacy course, data has been in the SLP that among 56 colleges affiliated University, 30 were the city of and out of 1630 seats, 173 had remained vacant. Thus, apparent that large institution. the circumstances, the observation of the High Court that was for the institution worry and consider viability and for the University or State Government take same into consideration, completely flimsy and impermissible reason employed. The mushroom growth of educational institutions cannot be permitted. The observation made by the High Court that unfit institution will automatically shut down the courses not the judicious approach warranted such matters. is not only that the requirement of the locality should exist but has be ensured that only the standard educational institutions should come up and once they come up, they should be able to survive. A large number of Institutions are not be opened up die unnatural death on the principle of survival of the fittest and due to non- availability of teachers/students. Standard of education cannot be compromised sacrificed by permitting institutions come up reckless manner without there being any requirement for them at particular place. There need to strengthen the existing system of education not make weak by further complicating the issues by wholly unwarranted approach as the one adopted by the High Court. cannot be left at the choice of the institution to open the course whenever or wherever they desire. The High Court has also erred in observing that seats remaining vacant could not be the relevant criteria for refusal of NOC.

It is not a case of withdrawal of provisional affiliation or

decline of affiliation on account of certain short comings. The

Government had already dedicated a certain amount in the

budget for the purpose of rescuing the parents who had taken a WP(C) NO. 2616 OF 2019

substantial loan for education of their wards but it was difficult to

repay. Keeping in view the unemployment and the number of

seats falling vacant, this Court cannot form an opinion by

exercising the power of judicial review under Article 226 of the

constitution of India. For the reasons aforementioned, I do not

find any justification for setting aside Ext.P4.

The writ petition is accordingly dismissed.

SD/-

sab                                       AMIT RAWAL

                                               JUDGE
 WP(C) NO. 2616 OF 2019


                      APPENDIX OF WP(C) 2616/2019

PETITIONER EXHIBITS

EXHIBIT P1             A TRUE COPY OF THE APPLICATION DATED
                       NOVEMBER 21, 2016 SUBMITTED BY THE
                       PETITIONER BEFORE THE FOURTH RESPONDENT.

EXHIBIT P2             A TRUE COPY OF THE LETTER DATED AUGUST 26,

2017 ISSUED BY THE 4TH RESPONDENT ALONG WITH THE RELEVANT PAGES OF THE COPY OF THE MINUTES OF THE SYNDICATE HELD ON JUNE 20, 2017 ISSUED FROM THE OFFICE OF THE THIRD RESPONDENT.

EXHIBIT P3 A TRUE COPY OF GOVERNMENT ORDER DATED OCTOBER 8, 2018.

RESPONDENT EXHIBITS

R1(a) TRUE COPY OF THE REPORT TO THE GOVERNMENT

R1(b) TRUE COPY OF THE G.O(P) NO.65/2017/FIN DATED 16.5.2017