Anjuman-E-Islam
Vs. The State of Karnataka & Anr [2001] Insc 457 (4 September 2001)
R.Babu,
Doraiswamy Raju Raju, J.
This
appeal has been filed by the writ petitioner before the High Court against the
order of the Division Bench of the Karnataka High Court, dismissing the appeal
of the petitioner filed against the order of the learned Single Judge,
dismissing their writ petition on the basis of an earlier Division Bench
Judgment of the said High Court reported in Srinivas Desai vs State of
Karnataka (I.L.R. 1993 Karnataka 2523).
The
very appellant filed Writ Petition No.8719 of 1991 in the High Court for the
issue of writ of mandamus directing the respondents to grant affiliation to the
College of Education in Teachers Training (B.Ed.) to be established by the
appellant from the academic year 1991-92 onwards etc. The learned Single Judge
in the High Court by his Order dated 29.8.91 directed the respondents to
consider the application filed by the appellant for starting B.Ed.
college
for the academic year 1991-92 and if not possible for the academic year 1992-93
after considering all aspects and keeping in view the provisions contained in
Section 53 of the Karnataka State Universities Act, 1976. The appellant was
said to have earlier filed the application seeking affiliation to start the B.Ed.
college for the academic year 1980-81. The request of the appellant came to be
rejected on the ground that the policy of the Government does not permit grant
of affiliation to start any new B.Ed. college during the 8th Plan period. Writ
Petition No.27443/91 came to be filed in which among other grounds it appears
to have been urged that during the period for which initially such affiliation
was sought by the appellant, others institutions have been granted. The learned
Single Judge, who came to dispose of the said writ petition, was of the view
that there had been failure on the part of the Government to discharge its
statutory duties under Section 53 of the Act and the petitioner was
discriminated against when permission was said to have been granted to several
other institutions and, therefore, directed the Government to consider the
matter afresh on the request of the appellants. Once again, the order of
rejection came to be passed on 30.7.92, relying upon the policy decision of the
Government necessitating filing of Writ Petition No.23544 of 1993, as noticed earlier,
both the learned Single Judge as well as the Division Bench dismissed the Writ
Petition and the appeal following the earlier Division Bench judgment of the same
Court.
Heard,
learned counsel appearing on either side. Though, we find that the writ
petition filed in Writ Petition No.8719 of 1991 was seeking for grant of
affiliation for the academic year 1991-92 and the relief was also granted in
the teeth of such prayer, the learned Single Judge who dealt with the
subsequent writ petition filed in Writ Petition No.27443 of 1991 took into
account the fact that for the period for which originally the affiliation was
sought for, namely 1980-81 other institutions and applicants were granted with
such affiliation and the discrimination meted out to the appellant alone
constituted colourable exercise of power and therefore directed to consider the
claim in the context of those facts. The learned Judge, at the same time,
refrained from recording any opinion on the claim based on the minority nature
of the institution. Though, we cannot countenance the claim of the appellant
that being a minority institution the general policy decision of the Government
placing an embargo on the opening of new institutions cannot stand in the way
of the appellant's application being granted, from the peculiar facts and
circumstances of this case, taken note of by the learned Judge while passing
the order dated 9.4.92, which has not been challenged by any appeal, it is
implicit that the claim of the appellant has to be considered for grant of
affiliation keeping in view the state of affairs which prevailed during the
academic year 1980-82 when similar applications were granted for others institutions
though the actual grant had to be prospectively for the academic year
subsequent to the date of grant and not retrospectively for the earlier years
also. The fact that the applicant has been agitating the matter all along
through proceedings before courts cannot be lost sight of in this regard. The
decision of this Court reported in Vellore Educational Trust vs State of Andhra Pradesh and Others (1987 (Supp) SCC 543)
also lends support to such consideration of their claim.
Hence,
on the peculiar facts and circumstances of the present case, we direct the
respondents to consider and accord affiliation as claimed by the appellant at
least from the academic year 2002-2003.
Since
this direction is being given on the peculiar facts of this case, it is not
meant to be precedent for others. The appeal shall stand allowed on the above
terms. No costs.
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