C/M Jai Maa Gange Manav Kalyan ... vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 11411 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
Case :- MISC. SINGLE No. - 22635 of 2021
 

 
Petitioner :- C/M Jai Maa Gange Manav Kalyan Sanstha Thru.Mng. & Ors.
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko. & Ors.
 
Counsel for Petitioner :- Sharad Pathak,Piyush Pathak
 
Counsel for Respondent :- C.S.C.,Kuldeep Pati Tripathi,Savitra Vardhan Singh,Shivanshu Goswami
 
ALONG WITH
 
Case :- MISC. SINGLE No. - 19490 of 2021
 

 
Petitioner :- C/M Jai Maa Gange Manav Kalyan Sanstha Thru.Shravan Rajan&An
 
Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education,Lko.& Ors.
 
Counsel for Petitioner :- Sharad Pathak,Piyush Pathak,Preeti Mala
 
Counsel for Respondent :- C.S.C.,Om Prakash Mani Tripathi,Rajesh Chandra Mishra,Savitra Vardhan Singh,Shivanshu Goswami
 
******
 
Hon'ble Jaspreet Singh,J.

BACKGROUND FACTS:

1. The petitioner No.1 is the Committee of Management Jai Maa Gange Manav Kalyan Sansthan, Derwa Bazar, District Pratapgarh a society registered under the Societies Registration Act, 1860.

2. The Society as mentioned aforesaid runs a college in the name of Pt. Shiv Sharan College of Education, Derwa Bazar, District Pratapgarh (hereinafter referred to as "the college"), who is the petitioner No.3 and the petitioner No.2 is the Manager of the aforesaid college.

3. In the year 2017, the college was duly recognized by the National Council of Teacher Education (hereinafter referred to as "N.C.T.E." for short) for the course of Bachelor of Education (B.Ed.) and got approval of one unit (50) students annually.

4. After grant of recognition by the N.C.T.E., the college applied for the affiliation from the respondent No.3 University. The University after making due inspection and finding that the college complied with the requisite norms granted the affiliation on 20.05.2018 for the course of Bachelor of Education (B.Ed.) under the faculty of education for a period of two academic years (2018-2019 and 2019-2020).

5. Since, the petitioners were granted the affiliation for two academic sessions which was drawing to an end in the academic session 2019-20, hence, the petitioners again applied for the affiliation for the academic session 2020-21. The University did not conduct any physical inspection and extended the affiliation for another year vide order dated 18.02.2021 for the academic session 2020-2021.

6. Since, COVID-19 Pandemic was raging in the country, accordingly, the petitioners on 15.03.2021 sent a detailed representation to the respondent No.3 University received by them on 26.03.2021 and requested for further extension of the affiliation for the academic session 2021-2022.

7. It is the case of the petitioners that the respondent No.3-University did not respond to the representation of the petitioners dated 26.03.2021, despite passage of four months. It is only on 24.07.2021, the University uploaded a letter on the login-I.D. of the petitioner-College stating that an inspection team has been constituted by the University, of which the petitioner is aware, and the petitioner has to get an inspection conducted in order to get the affiliation extended.

8. It is further stated that the petitioners contacted the University but as per the petitioner, no inspection team had been constituted and for the aforesaid reason it could not even deposit the fee for the inspection. Not receiving any categoric reply from the University, the petitioner once again on 28.07.2021 submitted a representation along with an affidavit indicating that the inspection of the college was already made in the year 2019 and every requisite norm was fulfilled. However, certain minor shortcomings such as lack of doors, windows and skylights were noticed, which could not be completed on account of suspension of classes on account of COVID-19 Pandemic. However, the petitioner was ready to get the same affixed within shortest possible time and in contemplation thereof it requested that the affiliation be extended for the academic session 2021-2022.

9. Despite the aforesaid representation dated 28.07.2021, no response was forthcoming from the University. In the meantime, on 28.08.2021, a letter was issued by the respondent No.3 University requiring the college to submit their profile in the prescribed format for the purposes of preparing the counseling schedule which was scheduled to be held by the Lucknow University.

10. In furtherance of the letter dated 28.08.2021, the petitioner submitted all the relevant documents seeking participation in the counseling for the Session 2021-2022 and the hard copies of the said documents were also submitted with the respondent No.3-University on 29.08.2021.

11. It is a specific case of the petitioner that between 24.07.2021 to 29.08.2021, 26 notices/letters raising various concerns were uploaded on the College I.D. by the University. However, the impugned letter/order dated 31.07.2021 is alleged to be uploaded antedated inasmuch as the same was uploaded on the College I.D. after 28.08.2021, wherein it expressed its inability to grant the affiliation, since, the inspection had not been conducted in furtherance of the letter dated 24.07.2021.

12. Petitioners were not aware of the said letter dated 31.07.2021 prior to 29.08.2021. The petitioner being aggrieved and also noticing that the career of the students was at stake, preferred a Writ Petition No.19490 of 2021 (M/S), wherein the petitioner claimed the following main reliefs, which are reproduced hereinafter:-

"(a) To issue a writ, order or direction in the nature of certiorari quashing impugned order dated 31.07.2021 issued by Opp-Party no.2, so served upon the petitioner on 29.08.2021, so far as it relates to the petitioner, the true copy of which is contained as Annexure-1 to the writ petition.

(b) To issue a writ, order or direction in the nature of mandamus commanding Opp.-party no.2 to grant affiliation for the course of B.Ed. in the light of permanent recognition granted by the N.C.T.E. to the College.

(c) To issue a writ, order or direction in the nature of mandamus commanding the Opp-Parties namely Opp-Party No.5 to allow the petitioners to participate in the counseling for new admissions for the session 2021-2022 which is going to commence from 06.09.2021, notwithstanding with the impugned order dated 31.07.2021 so served upon the petitioner on 29.08.2021."

13. A Coordinate Bench of this Court by means of the order dated 03.09.2021 passed in Writ Petition No.19490 of 2021 (M/S) noticing the respective submissions passed an order and the relevant portion thereof is being reproduced hereinafter for ready reference:-

"13. This Court is prima facie satisfied about the bonafide of the Institution in telling the University fairly that it could not remove the shortcomings through its letter dated 28.07.2021. As an interim measure, it is therefore directed that the petitioner shall deposit the fee for inspection within three days from today in the University and also ensure completion of all work/ removal of shortcomings as pointed out in the report dated 18.05.2018. The inspection team shall be sent by the University to the College concerned on 07.09.2021 and if a positive report is submitted in favour of the Institution, the respondent nos.2 and 3 shall pass appropriate orders regarding grant of affiliation."

14. In furtherance of the order dated 03.09.2021, the petitioner deposited the requisite fee and on 07.09.2021, the inspection of the Collage was done by an Inspecting Team comprising of two members (who have been impleaded as respondent No.5 herein). Despite the inspection having been done on 07.09.2021, the report was not known nor the outcome was informed to the petitioner while the counseling was to commence on 17.09.2021. The dilemma of the petitioner was made known to the Court seized with Writ Petition No.19490 of 2021 (M/S) and a Coordinate Bench of this Court by means of the order dated 15.09.2021 directed the respondent-University to file its counter affidavit within two days bringing on record the decision taken in respect of the affiliation of the petitioner-College.

15. Again on 21.09.2021, the matter was directed to be placed on 23.09.2021 permitting the University to bring on record the decision taken on the affiliation. It is thereafter that the decision taken by the respondent-University refusing the affiliation to the petitioner-College dated 22.09.2021 was brought on record.

16. In view of the decision, not recommending the grant of affiliation to the petitioner taken by the University dated 22.09.2021 gave a fresh cause of action to the petitioners, hence, the petitioners challenged the same in the instant writ petition No.22635 of 2021 (M/S) and it is in the aforesaid backdrop that the two writ petitions have been heard together and are being decided by this common judgment.

SUBMISSIONS OF THE PETITIONERS:

17. Learned counsel for the petitioner has primarily raised threefold submissions: First, it is a case of the petitioner that it is the duty of the N.C.T.E. to make an inspection and after noticing the fact that the college concerned fulfills the requisite norms and infrastructural facilities only then it grants the recognition. Once, the recognition is granted by the N.C.T.E., the University is required to grant the affiliation and while doing so, it may ensure that the college complies with the necessary norms but it does not have the powers to look into those matters which have been considered and noticed by the N.C.T.E.

18. It is also urged that once the college was granted the recognition as well as the affiliation for the academic session 2018-2019, 2019-2020 and also extended for the academic session 2020-2021, there was no reason for the respondent-University to have denied the affiliation to the petitioner for the academic session 2021-2022.

19. The second limb of submission is that the grounds upon which the affiliation has been denied is actually not within the domain of the University to examine. It is also vehemently stated that the report furnished by the Inspecting Committee is arbitrary inasmuch as it has shown deficiencies. If the said deficiencies would have been existing in fact then the N.C.T.E., would not have granted recognition to the college, in the first place.

20. It is also urged that the manner in which the report has been prepared shows a complete non-application of mind with a deliberate intent to refuse the recognition to harm the petitioner and the career of various students studying in the petitioner-College.

21. It is also urged that the arbitrariness is writ large on the report since double standards have been adopted by the Inspecting Committee as well as the University inasmuch as for the same deficiencies which were minor in nature and it did not in any manner affect or hamper the educational or infrastructural requirements and for the same deficiencies large number of colleges have been granted the affiliation, but step-motherly treatment has been meted out with the petitioners and affiliation has been denied to them.

22. The third limb of the submission is that the petitioner had applied for the affiliation in the current academic session 2021-2022 within the prescribed time-lines. The respondent-University did not inform the petitioner regarding any discrepancies nor gave any information for getting the college inspected. The petitioner had already submitted its subsequent representation in July, 2021 and also submitted its hard copies with the University and after almost a month, the impugned letter dated 31.07.2021 was uploaded antedated. The manner in which the respondent has proceeded with the application moved by the petitioner smacks of malafides, as result, the petitioners have been deprived of their rights in participating in the counseling. Number of students, who are already undertaking their education, their future and careers have been put at stake solely on the ground of high handedness, callousness and arbitrariness of the respondents.

23. It is urged, that from the perusal of the report submitted by the Inspection Committee, it would indicate that all the requisites were fulfilled by the petitioners in the year 2019 when the college was inspected. The only deficiency was non-availability of certain doors, windows and skylights, which as already urged were on account of COVID-19 Pandemic. This aspect of the matter was also noticed by a Coordinate Bench of this Court in its order dated 03.09.2021, however, ignoring the aforesaid, the report dated 07.09.2021 has been submitted which states that deficiency relating to doors, skylights and windows had been cured but it has now taken other grounds which were neither assessed properly, nor it was in their domain and artificial grounds have been raised, thus, rendering the report per se illegal, arbitrary and contrary to the records.

24. It is, thus, submitted that for all the reasons, the impugned order dated 31.07.2021 and order dated 22.09.2021 refusing affiliation are liable to be quashed and a direction be issued to the respondents to consider and grant the affiliation to the petitioner institution for the academic year 2021-2022.

25. Learned counsel for the petitioners in support of his submissions has relied upon the following judgments:-

(a) Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P. & Ors., (2013) 2 SCC 617;

(b) Managing Board of the Milli Talimi Mission, Bihar, Ranchi & Ors. v. State of Bihar & Ors., (1984) 4 SCC 500;

(c) Mata Gujri Memorial Medical College v. State of Bihar & Ors., (2009) 16 SCC 309;

(d) Mahatma Gandi University & Anr. v. Manager, ST. Alberts College & Ors., (2012) 13 SCC 442;

(e) Institute of Technical Education & Research Centre v. State of U.P. & 2 Ors., 2018 SCC OnLine All 841;

(f) Committee of Managment Dr. M.C. Saxena College of Education & Anr. v. State of U.P. & Ors., Writ Petition No.4125 (M/S) of 2013, decided on 02.07.2013;

(g) Central Women College v. State of U.P. & Ors., AIR OnLine 2019 Alld 2233.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT NO.3-UNIVERSITY

26. Per contra, learned counsel for the respondent No.3 University opposing the submission of the learned counsel for the petitioners, has submitted that the grant of affiliation by the University is a process which has been bound in a time-line as directed by the Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P. & Ors., (2013) 2 SCC 617.

27. It is urged that in furtherance of the direction given by the Apex Court in the aforesaid decision, the State of Uttar Pradesh has issued a Government Order dated 10.06.2015 and the affiliations and time-lines are subject to the same. It is submitted that the petitioner has been at fault inasmuch as it did not comply with all the requisite norms. The report of the Inspection Committee is a factual report which has noticed as many as sixteen discrepancies. The University has taken a decision solely on the basis of the said report. Once, the Inspecting Team, who visited the college found such large number of discrepancies persisting, a conscious decision was taken that it was not conducive to grant the affiliation as it would jeopardize the careers of various students, who may obtain admission in the petitioners' college.

28. It is further urged that the University has no animosity with the petitioners and in case if they comply with all the requisite norms and fulfill the same, they always have an opportunity of applying for the affiliation for the next academic session and as such it cannot be said that either the report is arbitrary or that there is any malafides harboured by the respondents against the petitioner.

29. It is further urged that it is for the petitioners to establish that they had made a requisite application within the time for seeking the affiliation for the academic session 2021-22. Since, the time-lines, which have been framed by the Apex Court and has been recognized in terms of the Government Order, it is not open for the University to grant the affiliation after the expiry of the time-line inasmuch as the Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra) has made several observations including that any breach of the time-lines would amount to contempt and for the said reason, the respondents cannot be urged to do an act which would be in the teeth of the order passed by the Apex Court subjecting the respondents being charged with the contempt of Court.

30. The other submission of the learned counsel for the respondent No.3 is that the instant writ petition is not maintainable inasmuch as the petitioner has an adequate remedy of preferring an appeal under the State Universities Act, 1973 before the State Government.

31. It is urged that sub-section (11) of Section 37 of the U.P. State Universities Act, 1973 (hereinafter referred to as "the Act of 1973") categorically provides that any institution whose application is rejected by the University may prefer an appeal to the State Government within 30 days from the receipt of the order of the rejection which may either allow the appeal or reject. The State Government shall also have powers to review the matter on an application of a college in cases where the complaint received by it with respect to the irregularities committed by the college.

32. It is, thus, urged that the issue at hand is primarily whether the petitioners' college complies with the necessary norms and regarding the existence of the deficiencies as noticed by the Inspecting Team, these are pure questions of fact which may not be entertained or taken note of by this Court in exercise of powers under Article 226 of the Constitution of India. Thus, the appropriate remedy for the petitioners would be to invoke the appellate powers of the State Government, hence, for the aforesaid reasons, the writ petition being devoid of merits is liable to be dismissed.

33. In support of his submission, learned counsel for respondent No.3 has relied upon the decision of Committee of Management, Anuragi Devi Degree College & Anr. v. State of U.P. & Anr., (2016) 12 SCC 517.

DISCUSSIONS AND ANALYSIS

34. Heard Shri Sharad Pathak, learned counsel for the petitioners and Shri Kuldeep Pati Tripathi alongwith Shri Shivanshu Goswami, leaned counsel for the respondent No.3 University and Shri Savitra Vardhan Singh, learned counsel for the respondent No.4.

35. This Court vide its order dated 25.10.2021 had also required the University to produce the record which was made available and was retained by the Court for perusal as well as to facilitate the dictation of the judgment.

36. Having heard learned counsel for the respective parties, the Court has given anxious consideration to the rival submissions and also perused the record.

37. The two issues involved in the instant petition can be succinctly noted as under:-

(i) Whether in the given facts and circumstances, the respondent No.3 University was justified in refusing the affiliation to the petitioners;

(ii) Whether the petitioners should be relegated to the forum of appeal in terms of Section 37(11) of the Act of 1973.

38. In order to answer the first question, it will be relevant to notice the powers exercised by the N.C.T.E., and the State University respectively relating to the grant of recognition and affiliation to a college.

39. At the very outset, it will be relevant to notice that the Central Government promulgated the National Council for Teacher Education Act, 1993. The preamble indicates that the said Act was to provide for establishment of a National Council for the Teacher Education with a view to achieve planned and co-ordinated development of teacher education system throughout the country. The regulation and proper maintenance of norms and standards in the teacher education system including qualification of school teachers and for matters connected therewith were within the framework of the Act of 1993. The Act envisages the establishment of a council tasked with a duty to take all measures for ensuring planned and coordinated development of teacher education and for determination and maintenance of standards for teacher education and purpose for performing its function under the Act.

40. Section 12 of the Act of 1993 lays down the various functions which are required to be done by the council. Chapter-IV and more particularly Section 14 of the Act of 1993 relates to recognition of institutions offering course or training in teacher education.

41. Section 14 of the Act of 1993 is being reproduced for ease of reference:-

"14. Recognition of institutions offering course or training in teacher education.--(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations:

Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.

[Provided further that such institutions, as may be specified by the Central Government by notification in the Official Gazette, which--

(i) are funded by the Central Government or the State Government or the Union territory Administration;

(ii) have offered a course or training in teacher education on or after the appointed day till the academic year 2017-2018; and

(iii) fulfil the conditions specified under clause (a) of sub-section (3),

shall be deemed to have been recognised by the Regional Committee.]

(2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed.

(3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall,--

(a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or

(b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing:

Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation.

(4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.

(5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3).

(6) Every examining body shall, on receipt of the order under sub-section (4),--

(a) grant affiliation to the institution, where recognition has been granted; or

(b) cancel the affiliation of the institution, where recognition has been refused."

42. Section 15 of the Act of 1993 relates to the permission for a new course or training by recognized institutions. Sub-section (3) of Section 15 provides that on receipt of an application from an institution under sub-section (1), and after obtaining from the recognized institution such other particulars as may be considered necessary, the Regional Committee shall record its satisfaction that such a recognized institution has adequate financial resources, accommodation, library, qualified staff, laboratory, and that if fulfills such other conditions required for proper conduct of the new course or training in teacher education, as may be determined by regulations, pass an order granting permission, subject to such conditions as may be determined by regulations. In case, if the Regional Committee is of the opinion that such institution does not fulfill the requirements laid down in sub-clause (a), pass an order refusing permission to such institution for reasons to be recorded subject to condition that before passing an order refusing permission, the Regional Committee shall provide a reasonable opportunity to the institution concerned for making a written representation.

43. Section 16 of the Act of 1993 further mandates that no examining body shall, on or after the appointed day, grant affiliation, whether provisional or otherwise, to any institution; or hold examination, whether provisional or otherwise, for a course or training conducted by a recognized institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15. Thus, it would been seen that for any institution to commence a course, it is sine qua non for the institution to first acquire the recognition from the N.C.T.E. It is thereafter that the institution is required to seek affiliation from the examining body under the State Universities Act.

44. The issue regarding the purpose of 'recognition' and 'affiliation' and the powers of the authorities under the N.C.E.T. and State Act came for consideration before the Apex Court in the case of Chairman, Bhartia Education Society & Anr. v. State of Himachal Pradesh & Ors., (2011) 4 SCC 527. The case arose under the N.C.E.T. Act and after noticing the Scheme, the Apex Court in Paragraph-19 to 24 of the said report has held as under:-

"19. The purpose of "recognition" and "affiliation" is different. In the context of the N.C.T.E. Act, "affiliation" enables and permits an institution to send its students to participate in the public examinations conducted by the examining body and secure the qualification in the nature of degrees, diplomas, certificates. On the other hand, "recognition" is the licence to the institution to offer a course or training in teacher education. Prior to the N.C.T.E. Act, in the absence of an apex body to plan and coordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of "recognition" were largely exercised by the State Government and universities/boards. After the enactment of the N.C.T.E. Act, the functions of N.C.T.E. as "recognising authority" and the examining bodies as "affiliating authorities" became crystallised, though their functions overlap on several issues. The N.C.T.E. Act recognises the role of examining bodies in their sphere of activity.

20. Section 14 of the NCTE Act requires recognition of the institution by NCTE, before the institute could offer any course or training in teacher education. Sub-section (4) of Section 14 provides that:

"14. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the examining body concerned, the local authority or the State Government and the Central Government."

Sub-section (6) of Section 14 requires every examining body on receipt of the order under sub-section (4):

"14. (6)(a) grant affiliation to the institution, where recognition has been granted; or

cancel the affiliation of the institution, where recognition has been refused."

21. Section 16 of the NCTE Act provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall grant affiliation whether provisional or otherwise, to any institution, or hold examination for a course or training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee of NCTE under Section 14 or permission for a course or training under Section 15 of the Act.

22. Sub-section (6) of Section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources, accommodation, library, qualified staff, or laboratory required for proper functioning of the institution. But this does not mean that the examining body cannot require compliance with its own requirements in regard to eligibility of candidates for admissions to courses or manner of admission of students or other areas falling within the sphere of the State Government and/or the examining body. Even the order of recognition dated 17-7-2000 issued by NCTE specifically contemplates the need for the institution to comply with and fulfil the requirement of the affiliating body and the State Government, in addition to the conditions of NCTE.

23. We extract below Conditions 4, 5 and 6 of the order of recognition issued by NCTE in this behalf:

"4. The admission to the approved course shall be given only to those candidates who are eligible as per the regulations governing the course and in the manner laid down by the affiliating university/State Government.

5. Tuition fee and other fees will be charged from the students as per the norms of the affiliating university/State Government till such time NCTE regulations in respect of fee structure come into force.

6. Curriculum transaction, including practical work/activities, should be organised as per the NCTE norms and standards for the course and the requirements of the affiliating university/examining body."

24. The examining body can therefore impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The State Government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of NCTE. Sub-section (6) of Section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber-stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course or training in teacher education or admit students to such course or training. Be that as it may."

45. The issue once again engaged the attention of the Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra), wherein the Apex Court in Paragraphs 66 to 68 noticed the issue and conflict arising from the Central Act i.e. N.C.T.E. Act and the State Universities Act, which is the law enacted by the State. For ready reference, paragraphs 67 and 68 of the said report are being reproduced hereinafter:-

"67. In the present case, we are concerned with the provisions of the N.C.T.E. Act which is a Central legislation referable to Schedule VII List I Entry 66. Thus, no law enacted by the State, which is in conflict with the Central law, can be permitted to be operative.

68. Now, let us examine the conflict that arises in the present cases. In terms of the provisions of the Act, the Regional Committee is required to entertain the application, consider State opinion, cause inspection to be conducted by an expert team and then to grant or refuse recognition in terms of the provisions of the Act. Once a recognition is granted and before an institution can be permitted to commence the course, it is required to take affiliation from the affiliating body, which is the university."

Thereafter, the Apex Court noticing various decisions of the Apex Court in Paragraph 69 to 71 of the said report has held as under:-

"69. Thus, grant of recognition or affiliation to an institute is a condition precedent to running of the courses by the institute. If either of them is not granted to the institute, it would not be in a position to commence the relevant academic courses. There is a possibility of some conflict between a University Act or Ordinance relating to affiliation with the provisions of the Central Act. In such cases, the matter is squarely answered in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya [(2006) 9 SCC 1] where the Court stated that after coming into operation of the Central Act, the operation of the University Act would be deemed to have become unenforceable in case of technical colleges. It also observed that provision of the Universities Act regarding affiliation of technical colleges and conditions for grant of continuation of such affiliation by the university would remain operative but the conditions that are prescribed by the university for grant and continuation of affiliation must be in conformity with the norms and guidelines prescribed by N.C.T.E..

70. Under Section 14 and particularly in terms of Section 14(3)(a) of the Act, N.C.T.E. is required to grant or refuse recognition to an institute. It has been empowered to impose such conditions as it may consider fit and proper keeping in view the legislative intent and object in mind. In terms of Section 14(6) of the Act, the examining body shall grant affiliation to the institute where recognition has been granted. In other words, granting recognition is the basic requirement for grant of affiliation. It cannot be said that affiliation is insignificant or a mere formality on the part of the examining body. It is the requirement of law that affiliation should be granted by the affiliating body in accordance with the prescribed procedure and upon proper application of mind. Recognition and affiliation are expressions of distinct meaning and consequences. In Bhartia Education Society v. State of H.P. [(2011) 4 SCC 527] this Court held that: (SCC p. 534, para 19)

"19. The purpose of ''recognition' and ''affiliation' is different. In the context of the N.C.T.E. Act, ''affiliation' enables and permits an institution to send its students to participate in public examinations conducted by the examining body and secure the qualification in the nature of degrees, diplomas and certificates. On the other hand, ''recognition' is the licence to the institution to offer a course or training in teaching education."

The Court also emphasised that the affiliating body/examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by N.C.T.E. while granting recognition.

71. The examining body can impose conditions in relation to its own requirements. These aspects are:

(a) eligibility of students for admission;

(b) conduct of examinations;

(c) the manner in which the prescribed courses should be completed; and

(d) to see that the conditions imposed by N.C.T.E. are complied with.

Despite the fact that recognition itself covers the larger precepts of affiliation, still the affiliating body is not to grant affiliation automatically but must exercise its discretion fairly and transparently while ensuring that conditions of the law of the university and the functions of the affiliating body should be complementary to the recognition of N.C.T.E. and ought not to be in derogation thereto."

46. Dealing with the Chapter-VII of the Universities Act particularly Section 37, the Apex Court held that the fields which are sought to be covered under Section 37 of the Universities Act and the statutes of various universities in regard to affiliation insofar as they are covered by the Act of 1993 must give way to the operation of the provisions of the Central Act. In paragraph 77 in unambiguous terms, the Apex Court in Maa Vaishno Devi Mahila Mahavidyalaya (supra) has held as under:-

"77. The fields which are sought to be covered under the provisions of Section 37 of the Universities Act and the statutes of various universities are clearly common to the aspects which are squarely covered by the specific language under the Act. That being so, all State laws in regard to affiliation insofar as they are covered by the Act must give way to the operation of the provisions of the Act. To put it simply, the requirements which have been examined and the conditions which have been imposed by N.C.T.E. shall prevail and cannot be altered, re-examined or infringed under the garb of the State law. The affiliating/examining body and the State Government must abide by the proficiency and command of N.C.T.E.'s directions. To give an example, existence of building, library, qualified staff, financial stability of the institution, accommodation, etc. are the subjects which are specifically covered under Section 14(3)(b) of the Act. Thus, they would not be open to re-examination by the State and the university. If the recognition itself was conditional and those conditions have not been satisfied, in such circumstances, within the ambit and scope of Sections 46 and 16 of the Act, the affiliating body may not give affiliation and inform N.C.T.E. forthwith of the shortcomings and non-compliance with the conditions. In such situation, both the Central and the State body should act in tandem and, with due coordination, come to a final conclusion as to the steps which are required to be taken in regard to both recognition and affiliation. But certainly, the State Government and the university cannot act in derogation to N.C.T.E.."

47. Thus, it will be seen that it is the provisions of the Central Act, which have to be adhered to and the affiliating/examining body is required to abide by the N.T.C.E. directions as illustratively stated in the said report that existence of building, library, qualified staff, financial stability of the institution, accommodation, etc. are subjects specifically covered under Section 14(3)(b) of the Act of 1993. Hence, they would not be open to re-examination by the State University. The Apex Court also noted that both the N.C.T.E. and the State body should Act in synchronization and coordination but not required to act in derogation to the N.C.T.E.

48. Insofar as the examining body is concerned, it can impose its requirements in respect to eligibility of students to a course in addition to those prescribed by the N.C.T.E. The State and the examining body may also regulate the manner of admission. In case, if it finds that there is irregularity in admission or conditions of affiliation as prescribed by the examining body or any irregularity with reference to any of the matters recorded and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoys the recognition of the N.C.T.E.

49. A Coordinate Bench of this Court in the case of Central Women's College of Education (supra) has also considered the issue in detail and held that the refusal to grant affiliation in respect of concerns which are the subject matter of satisfaction of the N.C.T.E. cannot be accepted. The relevant paragraphs 47 to 51 of the aforesaid report is reproduced hereinafter:-

"(47) In the case, in hand, the N.C.T.E. and RCI have granted recognition/ approval to the institution of the petitioners after satisfying the requirement of adequate financial resources accommodation, library, qualified staff, or laboratory. Thereafter, the examining body i.e. the University was entrusted no power to examine the correctness in regard to above-referred ingredients required for grant of recognition. The examining body, after inspection of the institution of the petitioners, has proceeded to refuse to grant affiliation on the short-comings of infrastructure i.e. sufficient adequate financial resources accommodation, library, qualified staff, or laboratory.

(48) In the opinion of this Court, the examining body, if comes to the conclusion that there is short-coming in the institution in regard to infrastructure required while taking into consideration the grant of recognition, then it should have been informed to the N.C.T.E. and RCI for taking necessary action against the Institution. The University was empowered to examine that whether the students who have applied for grant of admission in B.Ed. and B.Ed. Special (H.I.) course are eligible and are having requisite qualification for grant of admission and if not would have refused the affiliation to the institution.

(49) Here, in the present case, the refusal of affiliation is not on the ground that the students who have applied for grant of admission, are having no requisite qualification for grant of admission. The refusal to grant affiliation is that the institution of the petitioner does not have sufficient adequate financial resources accommodation, library, qualified staff, or laboratory and is running different other courses on the same land. In case the University found certain inefficiency in regard to non-fulfillment of required land or staffs, then it should have been informed to the N.C.T.E. and RCI for taking necessary action for withdrawal of the recognition granted by the University.

(50) The N.C.T.E. is the apex body and Parliament has enacted an act in regard to grant of recognition to the training institute of teachers for appointment in the institution. The power given by the Parliament to the regional committee of N.C.T.E. cannot be usurped by the examining body while granting affiliation to the institution.

(51) The institution in question has been accorded recognition by the N.C.T.E. and RCI, after examining the infrastructure required for grant of affiliation. Therefore, the respondent-University, taking shelter of non-fulfillment of requirement of requisite requirement for grant of recognition, cannot refuse to grant affiliation to the institution of the petitioners. The affiliating University can examine only to the extent that whether the students who have opted for grant of admission in the recognized course, are eligible for grant of admission or not. Whether there are some malpractices on the part of the institute in grant of admission or not. It is not amenable to the examining body to reopen the recourse which was fulfilled by the institute at the time of recognition by the N.C.T.E. and RCI."

50. In the backdrop of the aforesaid decisions, it is now not open to two views, that insofar as recognition is concerned, it is the first step required by the Institution to procure the recognition and once having received it then it is required to obtain the affiliation as a second step. The affiliating body has a limited field upon which it can act and after being satisfied it can grant or refuse the affiliation. As noticed above, the affiliating body does not have the powers to re-enter into the considerations regarding primary infrastructural facilities which have already been examined by the N.C.T.E., while granting the recognition. In terms of the Scheme, in case, if the examining body or the State Authorities come to the conclusion that the college/the Institution concerned is severely deficient of requisite norms including infrastructural facilities it always has the powers to recommend the cancellation of the recognition to the Regional Committee of the N.C.T.E.

51. Once having noticed the manner in which the recognition and the affiliation is to be treated by the respective authorities, if this Court considers the impugned order dated 22.09.2021 refusing the affiliation, it would indicate that upon the recommendation of the Inspecting Team which noticed 16 deficiencies during inspection, it did not find favour in granting affiliation to the petitioners.

52. Briefly, the crux of the deficiencies so noticed is being mentioned hereinafter:-

"(i) The name of the Manager in the Khatauni relating to the land of the college is shown as Rajeev Lochan Shukla whereas the documents indicate that the documents have been attested and certified by Shri Shravan Rajan. It is not clear as to who is the Manager of the Institution;

(ii) There does not appear to be any validly elected committee of Management inasmuch as by letter dated 20.01.2020, an observer was nominated, however, despite passage of more than 1.5 years, there is nothing on record to indicate that the elections have taken place and a validly elected committee has taken charge. In absence thereof, there is no responsible body to take charge of the Institution as well as to take care of the rights of the students;

(iii) The college is running from 2018 onwards, however, the receipts of the books and necessary equipments procured relates to the year 2020-2021;

(iv) There appears to be deficiencies in the signatures of Shri Shravan Rajan on the contract signed with the teachers. Insofar as the land of the Institution is concerned, the name of Shri Rajeev Lochan Shukla has been mentioned as a Manager;

(v) There is no certificate to indicate regarding the security deposit of Rs.2.50 lacs in favour of the University;

(vi) The certificate of national building code appears to be suspicious;

(vii) The entrance of the college indicates that it does not have a paved way;

(viii) The building of the college is still under construction;

(ix) The seating benches and the blackboards are ill-maintained;

(x) The chairs in the seminar hall and multi-hall appears to be procured recently as they are covered with polythene and tags are still intact;

(xi) There was lack of hygienic condition near the place provided for drinking water and there was nothing to indicate that there was separate toilet for boys and girls;

(xii) The appointment letters of the teachers were not made available;

(xiii) as per the bank statement and the balance-sheet, the salary paid to the teachers were inadequate;

(xiv) The bank statement indicating the payment to the teachers was only of six months whereas it ought to be for one year duly certified by the bank manager;

(xv) There was inadequate information regarding certification of the teachers' residence and at one given address number of teachers were shown to be residing which appears to be suspicious; and

(xvi) The compact disc which was provided regarding video-graphy of the entire inspection was not found operational".

53. Thus, on the basis of the aforesaid deficiencies, which were placed before the University by the two members Inspection Committee, the affiliation was refused to the petitioner-Institution.

54. If the contentions of the learned counsel for the parties are noticed in light of the deficiencies noticed by the Inspecting Team and pleadings of the parties more specifically as mentioned in paragraph 41 of the writ petition, coupled with the response given by the University, both in its short counter affidavit dated 07.10.2021 and the detailed counter affidavit dated 16.10.2021, it would indicate that the said 16 deficiencies can be categorized under the following types:-

(i) deficiencies, which relate to existence of infrastructural facilities;

(ii) deficiencies, which may relate to the management of the institution;

(iii) deficiencies, which can be said to be recurring in nature on account of usage and passage of time.

55. The Court has also examined the record submitted by the University for perusal. The record made available to the Court would indicate that the petitioner-institution while applying for the affiliation for the current academic year 2021-2022 had furnished a letter dated 15.03.2021 which has been received by the University on 26.03.2021 as there is a receiving endorsement thereon to indicate the date and the serial no. 141.

56. The said letter is accompanied by an affidavit of Sri Shrawan Rajan, the Manager and along with the said affidavit there are a number of enclosures. (The said letter, affidavit and the enclosures are marked as Pages 1 to 67 in the record submitted by the University to the Court.)

57. Amongst the enclosures so furnished are the recognition order, the statement of account of the teachers, the erstwhile application seeking affiliation, the copy of the erstwhile inspection report dated 18.05.2018, the certificate regarding the declaration of results for the Academic Year 2019-20 for B.Ed First Semester and II Semester. The certificate issued by the University that the college in question was not found involved in any copying during examination. It also contains requisites regarding the fixed deposits receipts, the societies registration certificate, copy of the title deed and the corresponding revenue entries in the Khatauni, auditors reports amongst others.

58. The record indicates that in so far as the petitioner is concerned, it had within the requisite time applied for extension of the affiliation for the Academic Year 2020-21. This extension of affiliation was communicated to the petitioner on 18.02.2021, a copy of which has been brought on record as Annexure No. 11 to the writ petition.

59. The petitioner applied for the affiliation for the current Academic Year 2021-2022 vide letter dated 15.03.2021, a copy of which has been brought on record as Annexure No. 12 and is also corroborated by the record submitted by the University concerned.

60. It is only as late as on 24.07.2021 that the University informed the petitioner that a Committee has been constituted for inspection and that the College may get the inspection done by 28.07.2021. This letter was replied to by the College on 28.07.2021 indicating the extension may be granted to the petitioner for affiliation as certain discrepancies were found at the time when the inspection was made in the year 2019 but on account of Covid-19 pandemic, the same could not be removed, hence, an extension may be provided for a year i.e. for the academic year 2021-22 within which the deficiencies shall be removed.

61. In the aforesaid facts and circumstances, though, the report of the Inspection Committee is factual in nature but the manner in which the report has been presented and the objections have been made, raises certain issues which cannot be said to be free from arbitrariness.

62. In inspection report it has been found that there is no clear averment regarding the land of the institution and the name of the Manager. It has been explained by the petitioners that prior to the year 2016, Sri Rajeev Lochan Shukla was the Manager of the Committee of Management of the Institution. After the year 2017, it is the petitioner no. 2 who is the manager. At the time, when the instrument regarding transfer of title of the land to the institution was executed, the then prevailing Manager signed the documents. It is also urged that the same documents existed at the time when the inspection was made by the N.C.T.E. and so also in the year 2019 when the Affiliating Body had inspected the institution.

63. It has also been urged that from the perusal of the sale deed, it would indicate that the name of Shri Rajeev Lochan Shukla has been shown as the Manager of the Institution and even in the revenue records, the property stands recorded in the name of the institution represented through its Manager Shri Rajeev Lochan Shukla. Apparently, once the aforesaid documents are already available and from the perusal thereof it could clearly be seen that the property even in the revenue records as well as in the title deed stands recorded in the name of the petitioner-institution and the Institution is represented by its alter ego which may change from time to time. Thus, this could not be a ground to refuse or find any deficiency where the land in the name of the college stood verified and was also considered by the N.C.T.E., while granting the recognition.

64. Moreover, in light of the law as traced above, the Affiliating Body could not have re-examined this issue as it related to a matter covered for the satisfaction of the Regional Committee while granting recognition order and even if at all on account of certain changed circumstances, if the Affiliating Body found some major discrepancies which could not be reconciled or on account of glaring fraud recognition has been obtained and it comes to the knowledge of the affiliating body then as an exception it could take action and further it can recommend to the N.C.T.E. for cancellation of the recognition. In absence of such circumstances and without cogent reasons on its own it could not have refused the affiliation.

65. Even otherwise, in the instant case, once the aforesaid documents were available with the Affiliating Body and if at any point of time, the Affiliating Body had any doubt it could have called upon the petitioner-institution to explain, before taking a decision to refuse extension of affiliation, if it proposed refusal on such grounds which otherwise were verified and within the domain of the N.C.T.E.

66. As far as the second shortcoming/ deficiency is concerned, the record would indicate that the petitioner no. 2 had required an Observer to be appointed for the elections which was so done vide letter dated 20.01.2020, a copy of which has been brought on record as Annexure No. 39 to the writ petition. The said Observer had agreed to get the elections held on 26.09.2021 as indicated from the letter dated 24.08. 2021, a copy of which has been brought on record as Annexure No. 40. Thereafter the elections have been held and the newly constituted Committee and the relevant documents thereof have also been brought on record as Annexure No. 41.

67. Though, it is true that the said elections took place after the inspection but the fact remains that the entire Country was reeling under the effect of Covid-19 Pandemic. In March, 2021, the second wave of the pandemic had hit the country severely. Almost all the spheres of life were severely affected. In the aforesaid circumstances where the University had granted time to various other institutions to get their Committee of Managements updated and regularized by holding the elections. Similarly, time also could have been granted to the petitioner. Moreover, since the Observer was appointed by the University at least before taking a decision, it could have also sought an explanation from the observer as to why the elections were not held and that since the Observer had already given its consent to hold the elections then it could not be said that the petitioner was squarely at fault. These issues relating to the management can re-occur and it will be necessary for any body before taking any decision to at least update itself by clarifying from the institution concerned and with the prevailing cause and effect of any change in the management.

68. In the instant case at hand, a striking feature is that there has been no complaint or any claim raised by rival party management. Apparently, there has been no dispute from any rival Committee of Management nor any such dispute was made known or in the knowledge of the University, thus, in absence of these accentuating circumstances, merely to come to a conclusion that in absence of any elections, there was no responsible body to take charge of the institution and the interest of the students was not quite justifiable.

69. Similarly, in so far as the issue regarding library and books are concerned, once the library was found existing when the inspection was made by the N.C.T.E. as well as the Affiliating Body, it could not be said that the library does not exist. Merely because some books and other equipments may have been purchased in the year 2020-21 would not mean that there is no infrastructural facilities available or that it is being created for the first time in 2020-21. The manner in which the report has been drawn indicates that the inspecting team has not applied its mind. It is not their contention to state that all the books in the library were of the year 2020-21.

70. In case if the present report is found to to be correct then it would have to be assumed that perhaps the earlier inspection made by the Inspection Committee was not correct. Since at the time when the earlier inspection was made, it was found that the institution was duly equipped with the full functional library.

71. At this stage, it will be relevant to notice that in the earlier inspection report made in the year 2019, the College was found fully compliant except for certain deficiencies which were noted relating to absence of certain doors, windows and sky lights. In the present inspection report dated 07.09.2021, other discrepancies have been noticed and it finds that those windows and skylights have been fixed.

72. It is also common knowledge that the Covid-19 had affected all walks of life including the education system. The issue regarding the non-availability of adequate teachers as already noticed above is the subject matter to be considered by the N.C.T.E. Even if at all the Affiliating Body found some discrepancies, it could have recommended the N.C.T.E. to cancel the recognition. At the cost of repetition, it may be stated that the reasons as indicated in the inspection report finding that there were no adequate number of teachers, this requires a little bit of more explanation and documents to enable the petitioner to have clarified the doubt but without calling upon or waiting for the reply, the Inspecting Team has concluded and given its recommendations.

73. Similar discrepancies of minor nature such as the National Building Code Certificate being suspicious which was already available on record, though, there is nothing to indicate how the said certificate is found suspicious when earlier the certificate was found acceptable. The documents regarding requisite securities in favour of the University were already available and submitted earlier and there is nothing on record why the same could not be found verified. Moreover, such are issues which could easily be verified, however, the documents which have been brought on record by the petitioner established that apparently the petitioner complied with the aforesaid formalities and requisites.

74. As far as the ill-maintenance of the black boards, benches, un-hygenic conditions near the area earmarked for drinking water etc. are concerned. It is also to be noted that the College is in a rural area and the inspection was done during the Monsoons. The colleges had been closed and not functional on account of Covid-19 pandemic since over a year and half and on-line classes are being held. In such circumstances, if there are certain issues regarding ill-maintenance and hygiene it does not give an impression that the facilities do not exist rather that they are merely to be spruced up. For the aforesaid, unless the instiutiton is a chronic defaulter, some time could have been given to the petitioner to rectify and upgrade rather than to make it a ground to refuse the affiliation which is a harsh remedy and handicaps the institution for conducting the examination programme and also jeopardizes the future and career of many students. Apart from the fact that it deprives the institution from taking fresh admissions for new academic year.

75. Education is an important facet and vital for development of the society and it has been exhaulted to a fundamental right incorporated in Part III of the Constitution of India under Article 21-A. Higher education has its own paramount presence and in order to evenly regulate and provide such higher education, various legislations, rules, regulations have been formulated. It involves various stake holders, including State and non-State colleges, Universities, regulatory bodies, councils, students, teachers amongst others. The statutory bodies, colleges and stake holders are expected to work complimenting each other and not in derogation, hence, the action of one must not be arbitrary.

76. Arbitrariness is an anathema to a society governed by the rule of law. The Apex Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India & Ors., (1979) 3 SCC 489.

"27. Now this rule, flowing as it does from Article 14, applies to every State action and since "State" is defined in Article 12 to include not only the Government of India and the Government of each of the States, but also "all local or other authorities within the territory of India or under the control of the Government of India", it must apply to action of "other authorities" and they must be held subject to the same constitutional limitation as the Government. But the question arises, what are the "other authorities" contemplated by Article 12 which fall within the definition of "State"? On this question considerable light is thrown by the decision of this Court in Rajasthan Electricity Board v. Mohan Lal [AIR 1967 SC 1857 : (1967) 3 SCR 377 : (1968) 1 LLJ 257] . That was a case in which this Court was called upon to consider whether the Rajasthan Electricity Board was an "authority" within the meaning of expression "other authorities" in Article 12. Bhargava, J., delivering the judgment of the majority pointed out that the expression "other authorities" in Article 12 would include all constitutional and statutory authorities on whom powers are conferred by law. The learned Judge also said that if any body of persons has authority to issue directions the disobedience of which would be punishable as a criminal offence, that would be an indication that that authority is "State". Shah, J., who delivered a separate judgment, agreeing with the conclusion reached by the majority, preferred to give a slightly different meaning to the expression "other authorities". He said that authorities, constitutional or statutory, would fall within the expression "other authorities" only if they are invested with the sovereign power of the State, namely, the power to make rules and regulations which have the force of law. The ratio of this decision may thus be stated to be that a constitutional or statutory authority would be within the meaning of the expression "other authorities", if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequence or it has the sovereign power to make rules and regulations having the force of law. This test was followed by Ray, C.J., in Sukhdev v. Bhagatram. Mathew, J., however, in the same case, propounded a broader test, namely, whether the statutory corporation or other body or authority, claimed to fall within the definition of "State", is an instrumentality or agency of Government: if it is, it would fall within the meaning of the expression ''other authorities' and would be "State". Whilst accepting the test laid down inRajasthan Electricity Board v. Mohan Lal, and followed by Ray, C.J., in Sukhdev v.Bhagatram, we would, for reasons already discussed, prefer to adopt the test of Governmental instrumentality or agency as one more test and perhaps a more satisfactory one for determining whether a statutory corporation, body or other authority falls within the definition of "State". If a statutory corporation, body or other authority is an instrumentality or agency of the Government, it would be an "authority" and therefore "State" within the meaning of that expression in Article 12."

77. Similarly, the Apex Court in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., (1981) 1 SCC 722 has held as under:-

"16. If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3, 38 : 1974 SCC (L&S) 165, 200 : (1974) 2 SCR 348] that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para 85]

"The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., ''a way of life', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."

This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [(1974) 4 SCC 3, 38 : 1974 SCC (L&S) 165, 200 : (1974) 2 SCR 348] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7)

"Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."

This was again reiterated by this Court in International Airport Authority case[(1979) 3 SCC 489] at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any [ Under Article 32 of the Constitution] action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."

78. Again in State of Jharkhand & Ors. v. Brahmputra Metallics Ltd., Ranchi & Anr., 2020 SCC OnLine SC 968 in para 48 and 49, it has held as under:

"48. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71, speaking through Justice J.S. Verma, held thus:

"7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ''fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

(emphasis supplied)

49. More recently, in NOIDA Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508, a two-judge bench of this Court, speaking through Justice B.S. Chauhan, elaborated on this relationship in the following terms:

"39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.

...

41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other...]"

(emphasis supplied)"

79. In light of the aforesaid discussions and decisions of the Apex Court, if the grounds upon which the affiliation has been rejected, is tested, this Court has no hesitation to hold that the affiliation has been refused on the grounds which are not based on sound reasoning applicable on the factual matrix and the respondent no. 3, the University has not given due thought to the issue at hand and its decision making process is vitiated while recommending the refusal of affiliation for the year 2021-22 to the petitioner and being arbitrary is hit by the Article 14 of the Constitution of India.

80. The learned counsel for the respondent No.3 University has though relied upon the decision of the Committee of Management, Anuragi Devi Degree College & Anr. (supra) to urge that this Court may not issue a mandamus to grant the affiliation after the time-lines as specified by the Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra) have lapsed. However, from the perusal of the aforesaid decision specifically Para-16 of Anuragi Devi (supra), it cannot be said that such direction cannot be issued for the reason that in the instant case, the petitioner had applied for the affiliation within the time-lines as provided by the Apex Court. Any decision taken by the University during pendency of the writ petition and found to be erroneous if set aside, cannot prevent the Court from doing substantial justice between the parties and for the said reason, the aforesaid decision cannot be pressed into service, as the Apex Court on different set of facts had made the said observations in Para-20 in the case of Anuragi Devi (supra) which is not applicable to the present case.

81. The learned counsel for the respondent no. 3 even while filing the counter affidavit could not dispute the fact that the petitioner had applied for the affiliation for the current year 2021-22 on 15.03.2021, though, the said letter was received by the University on 26.03.2021. Once the said application was received by the respondent-University within the timeline, it was necessary for the University to have responded. The University in its counter affidavit could not give a convincing answer regarding the fact that the letter dated 24.07.2021 was uploaded on the Log-in ID of the petitioner-college with delay so also the order dated 30.07.2021. Since the petitioner had applied for the affiliation in the time so specified and the Coordinate Bench of this Court by means of order dated 03.09.2021 passed in the connected petition bearing No.19490 (MS) of 2021 had directed the inspection to be conducted and in case if everything was found in order then appropriate order regarding the grant of affiliation were to be passed. Hence, this Court is not in agreement with the learned counsel for the respondent No.3 University that in all cases after the lapse of time-lines, the Court cannot direct the University to grant an affiliation even if facts and circumstances demand.

82. In so far as the submission of the learned counsel for the respondent no. 3 regarding availability of alternate remedy is concerned, it is to be noted that the alternate remedy is not an absolute bar. In the instant case, a coordinate Bench of this Court had already taken note of the grievance of the petitioner while entertaining Writ Petition No.19490 (M/S) of 2021. Any order or action having passed during the pendency of the writ petition, in such circumstances, it may not be appropriate where time is also an essence, to relegate the petitioner to the alternate forum of appeal before the State.

83. Thus, for the aforesaid reasons, so also that the inspection report is vitiated hence in the facts and circumstances of this case, this Court does not find much substance to the submission of availability of alternate remedy raised by the learned counsel for the respondent no. 3.

84. This Court is fortified in its view in light of the decision of the Apex Court in the case of M/s Radha Krishan Industries v. State of Himachal Pradesh and Others, 2021 SCC OnLine SCC 334 as well as in the case of Assistant Commissioner of Sales Tax v. Commercial Steel Limited, 2021 SCC OnLine 884, M/s Magadh Sugar & Energy Ltd. v. State of Bihar & Ors., 2021 SCC OnLine 801.

85. After the aforesaid detailed discussions, this Court arrives at a conclusion that the inspection report and the reasons recorded therein are not appropriate and deserves to be ignored. Hence, in the aforesaid circumstances, this Court provides that the respondent no.3 shall constitute a fresh team (of new members not part of earlier inspection) to inspect the college after putting the college to notice within a period of 10 days from the date of this order. Thereafter, in light of a fresh report (and also providing an opportunity to the petitioner to clarify any point in case if the Inspecting Team so constituted has any doubt) and keeping in mind the decision of the Apex Court as discussed above in this judgment, shall pass a fresh order regarding grant of affiliation within ten days thereafter so that the entire exercise is completed within 20 days from the date of this order.

86. In view of the aforesaid detailed discussion, the present Writ Petition No.22635 (M/S) of 2021 is allowed. A writ in the nature of certiorari is issued and the impugned order dated 22.09.2021 contained in Annexure No.1 to the present writ petition No. 22635 (M/S) of 2021 shall stand quashed. The University concerned shall after getting the fresh inspection done within the time period as mentioned in paragraph 85 of this judgment shall pass a fresh order regarding grant of affiliation taking note of the fresh inspection report and in light of the observations made in this judgment. The original record as submitted by the learned counsel for the respondent No.3 has been handed over to Sri Shivanshu Goswami, learned counsel for the respondent No.3. In light of this judgment, the Writ Petition No.19490 (M/S) of 2021 shall accordingly stand disposed of.

87. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 2nd December, 2021

Rakesh/Asheesh

[Jaspreet Singh, J.]