DREAM LAND ESTATE, CHOZHIKODE P.O., KULATHUPUZHA Vs. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM

JUDGEMENT

(1.) These cases concern a common issue where the petitioners challenge Government Order dated 22/8/2016 by which a decision had been taken by the Government not to permit new Arts and Science Colleges or courses. In WP(C) Nos. 24872, 25001, 25183, 26111, 26325, 26401, 26492, 26493, 26781, 26941, 27005, 27417, 27463, 27973, 28401, 28686, 29248, 29499, 33316, 34184, 35268, 37978 and 38119/2016, petitioners seek for a direction to grant affiliation to start a new college during the academic year 2016-17. In WP(C) Nos. 25782, 26026, 26331, 26782, 26783, 26784, 26785, 26786, 26787, 27439, 27440, 27602, 27615, 27618, 29054, 29055, 29095, 29196, 29247, 29249, 29650, 29761, 30187, 30287, 34494, 34507, 35811, 37124, 37297, 37447, 38815 & 38360/2016, petitioners seek for a direction to grant affiliation to start new courses in an existing college.

(2.) The petitioners are institutions which have sought for affiliation from the respective Universities namely the Kerala University, Mahatma Gandhi University, Kannur University, Calicut University etc,. for affiliation for new colleges/new courses in existing colleges. In most of the cases, the University after having received the applications recommended to grant affiliation subject to the petitioners obtaining no objection certificate from the Government. When no action was taken by the University/Government in this regard, most of the petitioners approached this Court. By an interim order dated 9th Sept., 2016, this Court directed the University to obtain the views of the Government and to finalise the grant/rejection of the affiliation. The University placed reliance upon the Government Order dated 22/8/2016 and refused affiliation. It is in the said background that the petitioners have challenged the Government Order dated 22/8/2016 and seeks for appropriate directions to the University to grant affiliation without insisting for a no objection certificate from the Government.

(3.) The primary contention urged by the petitioners is that the Government Order dated 22/8/2016 is in violation of Art. 19(1) (g) of the Constitution of India and in respect of minority institutions Art. 30(1) of the Constitution. It is submitted that every citizen has a fundamental right to start an educational institution as held by the Constitution Bench in T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481] . It is further held that the right to establish an educational institution shall be regulated by such regulatory measures like maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of the management. It is contended that even if the Government is entitled to impose reasonable restrictions in terms of Art. 19(6), it cannot be done by an executive order under Art. 162 whereas it has to be made only by way of a legislation.