BSD EDUCATION SOCIETY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner Education Society is stated to be one belonging to the Nadar community, a recognised backward community. In the writ petition, it is aggrieved by Ext.P16 order of the 1 st and 2nd respondents rejecting its request for permission to start a new Arts and Science College in Neyyattinkara Taluk in Thiruvananthapuram. The pursuit by the petitioner Society of a permission to start a new Arts and Science College has seen it travel through the portals of this Court on three occasions in the past. When its application was not considered by the State Government in 2016, the petitioner approached this Court through W.P.(C).No.6345 of 2016, which culminated in Ext.P4 judgment that directed the Government to consider the application within a period of one month from the date of receipt of a copy of the judgment. In Ext.P5 order dated 09.05.2016 that was passed thereafter, the Government took the stand that there was no educational need to start a new aided college in Neyyattinkara Taluk and rejected the application of the petitioner accordingly. The petitioner, therefore, challenged the said order before this Court through W.P.(C).No.18946 of 2016. The said writ petition was disposed by Ext.P6 judgment that quashed Ext.P5 order and directed the Government to consider the application of the petitioner afresh. It is relevant to note that in the said judgment, this Court took note of the submission of the petitioner that out of the 4 colleges that were stated to have already commenced functioning, and referred to in Ext.P5 order to non- suit the petitioner, 3 of the colleges were not situated within Neyyattinkara Taluk. It was therefore that this Court doubted the correctness of the factual findings in Ext.P5 order, quashed the same and directed the Government to re-consider the matter. Thereafter, the Government passed Ext.P7 order, dated 11.11.2016, where the stand taken was that a decision with regard to sanctioning of new colleges in Neyyattinkara was not finalised. It was also stated that there was a requirement of an applicant owning 5 acres of unencumbered land, which, according to the Government, the petitioner did not satisfy. It was also stated that the sanctioning of a new aided college involved a huge financial commitment to the State and an amount of approximately Rs.10 crores was the estimated financial commitment during the first year itself. The State was apparently not in a position to incur such expenditure at that point in time. The said reasons weighed with the Government while rejecting the application of the petitioner through Ext.P7 order. The petitioner was therefore before this Court yet again, through W.P. (C).No.41372 of 2016, challenging the decision of the Government. By Ext.P13 judgment, this Court set aside the impugned order of the Government and directed the Government to consider the matter afresh. It is seen from Ext.P13 judgment that the Court found that there was no proper assessment of the educational need conducted by the Government, and that the Government itself had not conducted a need analysis study while sanctioning colleges in the academic year 2016-2017. It was also found that the Government had never insisted on any report of landed properties to be furnished by the applicants and that there was no proper need analysis done or any valid study of the financial implications undertaken by the Government while rejecting the application of the petitioner. The Government was, therefore, directed to consider the matter afresh, taking note of Ext.P9 report that had been obtained by the petitioner in the meanwhile to establish the educational need in the area.

(2.) It would appear that consequent to the directions in Ext.P13 judgment, a report as regards educational need in the area, as also the financial implication in respect of the college proposed by the petitioner, was prepared by the Deputy Director of Collegiate Education (Ext.P14). The said report was placed before the Government so as to enable the Government to take a fresh decision as directed by this Court. By Ext.P16 order, dated 06.04.2018, the application of the petitioner was once again rejected by the Government. In the said order, which is impugned in this writ petition, the stand of the Government is essentially that the decision to start new colleges in the higher education sector or in the aided sector in the State is a matter of Governmental policy, taking into consideration the density of existing institutions in and around the proposed area, as also the financial commitment that would be required of the Government if the new colleges were sanctioned. It is further stated that the Government is considering the preparation of a perspective plan for the State, based on which the necessity for establishment of new colleges in the aided/unaided sector would be examined by the Government. As regards the application of the petitioner, the stand of the Government is that the college of the petitioner cannot be sanctioned at Neyyattinkara solely because there was a favourable report issued by the Deputy Director of Collegiate Education recommending the case of the petitioner. As the Government was in the process of developing a perspective plan on new Arts and Science Colleges and courses, applications would be called only after the development of the said perspective plan, and the petitioner could also respond to such a call for applications, at the appropriate time. Ext.P16 order also makes a reference to the financial implications for the Government consequent to the starting of new aided colleges, inasmuch as the Government would have to substantially contribute to the salaries and faculties of the staff of the aided colleges, which, in the opinion of the Government, it could not immediately bear. The request of the petitioner Society for permission to start a new Arts and Science College was therefore rejected, without prejudice to its right to approach the Government as and when such perspective plan is evolved and applications are invited.

(3.) In the writ petition, while it is the specific case of the petitioner that the actions of the Government, in repeatedly passing orders rejecting the application of the petitioner for commencement of new Arts and Science Colleges manifested a malafide conduct on the part of the Government, which was adamant in refusing the permission sought for by the petitioner, Ext.P17 order dated 27.07.2018 is also relied upon to suggest that, notwithstanding the stated policy of the Government, that it would not sanction any new college in the State without first developing a perspective plan, the Marian Foundation for Unity and Integral Progress Trust has been granted permission to commence a new aided Arts and Science College in the Parassala Constituency in Thiruvananthapuram District with its Headquarters at Edanji. Ext.P17 order is produced to suggest that a discrimination has been meted out to the petitioner by the State Government in the matter of grant of permission to start new colleges. It is also stated that the said order would indicate that there was never a policy in place which required the preparation of a perspective plan prior to the sanctioning of new Arts and Science Colleges.