BY AD v. JAGAN ABRAHAM M.GEORGE

W.P(C)No.14471/2023, wherein the appellant/petitioner challenged Ext.P3 notification dated 08/11/2022 by which the second respondent enhanced the Annual Administrative Fee (AAF) for the self financing unaided Arts and Science Colleges. The writ petition was dismissed by the learned Single Judge holding that the second respondent did have the power to do so. Aggrieved, the present appeal has been filed. The parties and the documents will be referred to as described in the writ petition.

2. The petitioner is an Association registered under the Travacore- Cochin Literary Scientific and Charitable Societies Registration Act, 1955. The members of the petitioner are 24 self financing Arts and Science Colleges Writ Appeal No.2154 of 2023 3 affiliated to the second respondent, namely, the Kerala University. According to the petitioner, the colleges which are members of the petitioner Association have been conducting self financing courses in various streams under Arts and Science since the year 1994, which was when the State Government took a policy decision to permit the conduct of self financing courses without any burden either to the University or to the State Government. As per Section 24(x) of the Kerala University First Ordinances, 1978 (the First Ordinances) self financing un-aided colleges have to pay a one time initial fee; recurring annual fee and financial guarantee to the second respondent University. The recurring annual fee commonly known as AAF is to be paid before 31st of March every year in advance, that is, before collecting the fees from the students. As per the said provision, colleges other than Arts and Science Colleges need to pay the annual fees per college, whereas the Arts and Science Colleges have to pay the AAF per course. Initially the AAF applicable to the self financing un-aided colleges was ₹20,000/- per course. By an amendment in the year 2009, the same was revised to ₹30,000/- per course. The second respondent has now brought in an amendment by way of Ext.P3 notification dated 08/11/2022 by which the AAF provided under Section 24(x) of the First Ordinances has been enhanced to ₹50,000/-. The members of the petitioner Association being deeply aggrieved Writ Appeal No.2154 of 2023 4 by the enhancement of AAF as per Ext.P3, submitted Ext.P4 representation dated 17/02/2023 to the second respondent University. However, the second respondent University by way of Ext.P5 order dated 31/03/2023 rejected Ext.P4 representation. The reasons stated for rejection of Ext.P4 representation in Ext.P5 are illegal and unsustainable. Section 36 of the Kerala University Act, 1974 (the Act) does not in any way authorise the second respondent University to impose AAF discriminately among the colleges affiliated to it. The said section does not in any way authorise the second respondent to impose the AAF per course on the Arts and Science Colleges while imposing the very same fee per college in the case of other colleges. The enhancement of the AAF as per Ext.A3 is arbitrary and unreasonable and hence the writ petition seeking a writ of certiorari for a direction to set aside Ext.P3 notification to the extent to which it enhances the AAF for self financing unaided Arts and Science colleges; to declare that the second respondent University has no right or authority to demand or collect such fees selectively from self financing unaided Arts and Science Colleges and to declare that Section 24(x) of the Act authorizing the collection of AAF as illegal and unconstitutional.

3. The second respondent, namely, the University of Kerala filed a Writ Appeal No.2154 of 2023 5 statement contending that initially there was no provision in the Act for unaided colleges. A provision for establishment of unaided colleges was introduced in the Act vide amendment to the Act made in the year 1995. Since then the number of unaided colleges and courses in the existing unaided colleges has increased substantially over the passage of time. Presently the University of Kerala has around 190 colleges out of which 120 belong to the self financing sector, which is almost 63.3% of the colleges. Increase in the number of self financing colleges brought about a steep increase in the administrative work at the University and the need to deploy more resources. The University is incurring huge amounts for the maintenance of the administrative wing, examination wing and other segments of the University to cater to the needs of the students and teachers who come under the purview of the University. The expenditure of the University has increased exponentially as it has to carry out several activities for the benefit of the student community. However, the grant from the Government has not been increased proportionately and therefore the University is compelled to raise its own resources. As per Section 5(xi) of Chapter II of the Act, the University has the power to fix the fees payable to the University and to demand and receive such fees. Section 36 of the Act Writ Appeal No.2154 of 2023 6 empowers the Syndicate to make Ordinances subject to the provisions of the Act and Statutes of the University. The initial affiliation fee, annual administration fee and financial guarantee to be furnished by the unaided self financing colleges are specified under sub item (x) of Item 24 in Ordinance 1 under Chapter 4 of the First Ordinances. As per Sub section (xxiv) of Section 5 of the Act, the University has the power to affiliate to itself colleges in accordance with the provisions of the Act, the Statutes, Ordinances and Regulations as well as to withdraw affiliation of colleges. Statute 12 in Chapter 24 of the Kerala University First Statutes, 1977 stipulate that the Syndicate has the power to grant conditional affiliation. For continued affiliation the educational institutions are required to pay the AAF. The University has been collecting AAF right from the year 1996 when the self financing colleges were granted affiliation. Dispute regarding the power of the University to levy AAF arose for the first time when the fee was sought to be enhanced in the year 2009. The Educational Agencies which had been remitting the fee without any demur or protest raised an objection for the first time in 2009 contending that they are not liable to remit the amount and that the University does not have the power to do so. A batch of writ petitions filed by the unaided colleges challenging the enhancement of the fee resulted Writ Appeal No.2154 of 2023 7 in Ext.P2 judgment, which has become final. The allegation that the Government/ Aided Colleges are treated on a different footing from the self financing institutions is incorrect and wrong. There is sufficient justification for the University in treating the Aided Colleges and self financing colleges distinctly by charging different rates of fee for affiliation and allied matters. The classification is logical and reasonable based on sound materials and distinguishing features.

5. Heard both sides. Admittedly the petitioner and others moved a batch of writ petitions which were disposed of by this Court by Ext.P2 judgment dated 20/12/2021. In the said writ petitions, the revision of AAF was challenged on the ground of competency, discrimination and on the ground that it was exorbitant. Paragraph 2 of Ext.P2 judgment reads thus:- “

2. Though parties have made their respective pleadings, going through the provisions of the Kerala University Act, 1974, in particular sections 5(xi) and 36 of the Kerala University Act, 1974, we are of the view that the Syndicate has power to make ordinances, providing for all or any of the following matters, which includes levy of fees in colleges and other institutions, by the University.” Further, the relevant portions of paragraphs 7 to 10 reads thus:- Writ Appeal No.2154 of 2023 8 “

7. Learned Standing Counsel for University further submitted that payment of annual fee, was subsequently captioned as 'Annual Administration Fees' with certain increase and according to him, University had been levying annual fees in terms of the provisions of the Act and Ordinance. He further submitted that the reason for increase in annual administration fee is explained in the counter affidavit.

8. We have gone through the reasons and accept the same. .............................................

8. Though, several issues have been raised, Mr. George Poonthottam, learned Senior Counsel, representing majority of the writ petitioners and Mr.Rony Jose, representing petitioner in W.P.(C) No.10325/2009, submitted that the annual fee/annual administration fee fixed as per the amended notification, published in Kerala Gazette – Part III, University of Kerala dated 12.8.2016 from 1.7.2016 onwards, the date on which the Senate approved the resolution, referred to in the Gazette and the arrears of annual fees/administration fee in terms of Amendment No.194, from 2009, will be paid within four months from today.

9. Mr.Thomas Abraham, learned Standing Counsel for University, has agreed for the above said proposition as regards payment.

10. Thus, placing on record the consent of all parties, there will be a direction to the writ petitioners/Self Financing Colleges/Trust, to pay the arrears of annual fees/annual administration fees, in terms of amendment No.194 to Chapter IV of Kerala University First Ordinance, 1974, at the rate prescribed therein, from 2009 to 1.7.2016, within four months Writ Appeal No.2154 of 2023 9 from today."

6. Therefore the argument of the petitioner that the issue regarding enhancement of AAF or the power of the University to do so has not been decided in Ext.P2 judgment, is apparently incorrect.

7. It was further argued by the learned counsel for the petitioner that Ext.P3 notification is bad for one another reason as it discriminates between self financing unaided colleges and the aided colleges. According to the petitioner, there is no rational or basis for mulcting the self financing unaided colleges with a higher liability than the liability of Aided and Government Colleges. This allegation of the petitioner is answered by the second respondent University thus:- “11. As far as the allegation in the writ petition that the Government/Aided colleges are treated in a different footing from the self-financing institutions is concerned, there is sufficient justification in the University treating the aided colleges and self- financing colleges distinctly with different rates of fee for affiliation and allied matters. The classification is logical and reasonable based on sound materials and distinguishing features. The distinction between aided and unaided colleges is drawn on the basic fact that the aided colleges are aided by the Government by way of payment of salary of staff and other grants. Admission of students and the rate of fee payable by the students in aided colleges are also Writ Appeal No.2154 of 2023 10 fixed by the Government and strictly adhered to by the relevant Rules and Regulations. Government provides grant to the University each year which is utilized for various institutional as well as academic activities.

12. The unaided colleges on the other hand are given a free hand in the collection of fees, admission of students [against 50% seats], employment of teachers, payment of salary and the like. The fees collected by Self-Financing training colleges from a student is far more than the fees collected by Government /Aided Colleges. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The Unaided colleges are separately included under Chapter VIII A of the Kerala University Act, 1974 and special provisions have been enacted in respect of unaided colleges under section 69 of the Kerala University Act, 1974. Therefore, it is indisputable that unaided colleges form a different class and are not comparable with Government or Aided Colleges. The un-aided colleges are sanctioned by the Government and granted affiliation on the specific condition that there will not be any financial commitment on the part of the University or the Government. It is to be noted that sanction has been granted to the Unaided Self financing Colleges to function only on a Self financing basis without any financial commitment on the part of the State Government or the University." (Emphasis supplied)

8. This we find is a sufficient cause or reason for treating the self financing colleges on a different footing. There is no infirmity in the Writ Appeal No.2154 of 2023 11 impugned judgment of the learned Single Judge calling for an interference. In the result, the writ appeal sans merit is dismissed. Interlocutory applications, if any pending, shall stand closed. AMIT RAWAL Sd/- JUDGE JUDGE Sd/- C.S.SUDHA Jms Writ Appeal No.2154 of 2023 12 APPENDIX OF WA 2154/2023 PETITIONER EXHIBITS Exhibit -P1 Exhibit-P2 Exhibit -P3 Exhibit -P4 Exhibit -P5 Exhibit -P6 Exhibit -P7 TRUE COPY OF THE LIST OF MEMBERS OF THE PETITIONER DATED 19-04-2023. PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 20/12/2021 IN W.P. (C).NO.10350/2009 PHOTOSTAT COPY OF THE AMENDMENT NO.266 DATED 08/11/2022 ISSUED BY THE 2ND RESPONDENT PHOTOSTAT COPY OF THE REPRESENTATION DATED 17/02/2023 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. PHOTOSTAT COPY OF THE ORDER DATED 31/03/2023 OF THE 2ND RESPONDENT. PHOTOSTAT COPY OF THE JUDGMENT DATED 26/07/2022 IN W.P.(C).NO.13584/2022 PHOTOSTAT COPY OF THE ORDER DATED 09/02/2023 OF THIS HON'BLE COURT IN I.A.NO.1/2022 IN W.P.(C).NO.13584/2022