Shetkari Shikshan Prasarak ... vs State Of Maharashtra And Ors.
2001 Latest Caselaw 896 Bom

JUDGMENT

B.B. Vagyani, J.

1. Heard.

2. Rule. Rule made returnable forthwith. With consent, taken up for final hearing forthwith.

3. In all these three writ petitions, the order dated 30-4-2001 passed by the respondent State granting permission to start a new college at Shirur Kasar, Tq. Patoda of District Beed is challenged and, therefore, these three writ petitions are disposed of by common judgment.

4. The petitioner in Writ Petition No. 2091 of 2001 is an educational society known as Shetkari Shikshan Prasarak Mandal, Ashti, District Beed. The petitioner claims that it is one of the most reputed educational institutions in Beed District. The petitioner institution runs Colleges at Ashti and Kada. The petitioner also runs a College of Physical Education at Ashti. The petitioner claims that it runs near about 21 secondary schools in Beed district and approximately 10,000 students are taking education in various branches of the high schools.

5. The petitioner submitted its proposal as required to be submitted under Section 82 of the Maharashtra Universities Act, 1994. The University recommended the proposal of the petitioner. However, the State Government did not consider the proposal submitted by the petitioner. The petitioner has been trying to obtain requisite permission for opening a new college at Shirur Kasar since last eight years. But the stars did not favour the petitioner. The petitioner then filed Writ Petition No. 850 of 1999 praying therein that the respondent Nos. 1 and 2 may please be directed to consider and decide by speaking order the proposal of the petitioner institution to start Arts and Commerce College at Shirur Kasar, Tq. Patoda, District Beed. This Court by order dated 8-4-1999 directed the State Government to dispose of the application of the petitioner for permission to start a college at Shirur Kasar, Tq. Patoda, District Beed within two months and intimate the petitioner accordingly before that time. The petitioner has made a serious grievance that in spite of the aforesaid clear directives of the Hon'ble Court, the State Government has not considered and decided the application of the petitioner for opening a new college.

6. The State Government granted permission to Saint Bhagwan Shikshan Prasarak Mandal, Pangari, Tq. Parali Vaijanath of Beed district to start a new college at Shirur Kasar by order dated 9-7-1999. Feeling aggrieved by the said order, the petitioner filed Writ Petition No. 3688 of 1999 and challenged the said permission.

7. The petitioner in Writ petition No. 2405 of 2001 is an educational society in Marathwada region running several high schools, primary schools, homeopathy college, D.Ed. College and also senior colleges in Beed district. The petitioner society is known as Adarsha Shikshan Sanstha. The petitioner also wanted to start a new college at Shirur Kasar and accordingly, it submitted its application as required by law. However, in spite of favourable recommendations by the University, the State Government did not favour the petitioner by granting permission to start a new college. The State Government, however, granted permission in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari, Tq. Parali Vaijanath of District Beed. Feeling dissatisfied by the grant of permission to said Mandal, the petitioner filed Writ Petition No. 3731 of 1999 and challenged said permission.

8. The petitioner in Writ Petition No. 2376 of 2001 is an educational trust duly registered under the provisions of the Bombay Public Trusts Act; 1950 and also under the Societies Registration Act, 1860. The petitioner trust is known as Nav Nirman Shikshan Prasarak Mandal, Bhayala, Tq. Patoda. The petitioner trust runs Balwadis, primary schools, secondary schools, schools for the handicapped, technical schools, colleges and Ashram schools. The petitioner had submitted an application for permission to start a new college at Shirur Kasar. In spite of favourable recommendations by the University, the proposal of the petitioner did not impress the State Government. The State Government granted permission to Saint Bhagwan Shikshan Prasarak Mandal, Pangari, Tq. Parali Vaijanath of District Beed. Feeling dissatisfied by the said order, the petitioner filed Writ Petition No. 3197 of 1999 and thereby challenged the permission granted in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari.

9. Similarly, Sangram Sewabhavi Sanstha had also filed Writ Petition No. 3943 of 1999 and thereby challenged the permission granted in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari.

10. Having noticed the common challenge, this Court decided Writ Petition Nos. 3197/1999, 3688/1999, 3731/1999 and 3943/1999 by common judgment. This Court found that the University did not assess the comparative merit of any of the proposals. This Court also found that the proposals were not at all subjected to close scrutiny by the Board of College and University Development before the proposals were recommended to the State Government. This Court also noticed that the decision of the State Government did not at all reflect the position with regard to assessment of financial capabilities, infrastructural facilities and the know how or expertise available. This Court also noticed that there was no application of mind to the proposals either by the University or by the State Government. This Court specifically observed that the State Government must set out the reasons for having exercised the absolute discretion. This Court ultimately quashed and set aside the State Government's decision granting permission in favour of

Saint Bhagwan Shikshan Prasarak Mandal, Pangari to start a new college in arts at Shirur Kasar for the academic year 1999-2000. After quashing the permission, this Court directed the State Government to return all the proposals to the University for its fresh consideration in compliance with the provisions of Section 82 of the Maharashtra Universities Act, 1994. The University was directed to consider those proposals on the lines of observations made by this Court in those writ petitions and to submit its recommendations on inter se merits before 31-12-2000. The State Government was directed to consider the said recommendations and pass appropriate and reasoned order before 31st May, 2001.

11. The University made scrutiny of the proposals and sent the proposals to the State Government with its recommendations. The University granted . first preference to Saint Bhagwan Shikshan Prasarak Mandal, Pangari. The State Government, acting on the recommendations of the University, accorded its permission by order dated 30-4-2001 to Saint Bhagwan Shikshan Prasarak Mandal, Pangari to start a new college at Shirur Kasar for the academic year 2001-2002. This permission dated 30-4-2001 granted by the State Government is challenged by Shetkari Shikshan Prasarak Mandal, Ashti, Nav Nirman Shikshan Prasarak Mandal, Bhayala and Adarsha Shikshan Sanstha, Beed by filing Writ Petition Nos. 2901 of 2001, 2376 of 2001 and 2405 of 2001. In all these three writ petitions, the order dated 30-4-2001 passed by the State Government is challenged practically on the similar grounds and, therefore, we thought it fit to dispose of these three writ petitions by common order.

12. The learned Advocate Shri Raghuwanshi for the petitioner in Writ Petition No. 2091 of 2001 severely criticized the impugned order dated 30-4-2001 mainly on the ground that the University as well as the State Government did not at all assign reasons for granting permission in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari. A serious grievance is made by the learned Advocate Shri Raghuwanshi that in spite of specific directions given by this Court in Writ Petition Nos. 3197 of 1999, 3688 of 1999, 3731 of 1999 and 3943 of 1999, the University and the State Government did not at all assign reasons for granting permission in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari, According to him, the University as well as the State Government were under obligation to assign reasons for their action. Making reference to the documents made available by the University, the learned Advocate Shri Raghuwanshi submits that the University failed to discharge its legitimate duties. He submits that the management council had blindly accepted the report submitted by the Board of College and University Development and submitted its recommendations to the Government. The learned Advocate Shri Raghuwanshi submitted further that the State Government, without assigning reasons, with regard to comparative merits of each of the proposals, granted permission in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari by invoking its absolute

discretion. He also made a serious grievance that the State Government has failed to pass appropriate and reasoned order. According to him, the University as well as the State Government acted in arbitrary manner and, therefore, the impugned permission dated 30-4-2001 is liable to be quashed and set aside.

13. In order to buttress his submissions, he heavily relied upon following cases:

1. Union of India v. M. L. Capoor and Ors., .

2. S.N. Mukherjee v. Union of India, .

3. Tata Cellular v. Union of India, .

14. The learned Advocate Shri. V.D. Hon for the petitioner in Writ Petition No. 2376 of 2001 and learned Advocate Shri R.N. Dhorde for the petitioner in Writ Petition No. 2405 of 2001 played the same tune.

15. The learned Government Pleader Shri Sawant has strongly supported the impugned order on the ground that the State Government has absolute discretion. According to him, the State Government had noted the directions given by this Court in earlier writ petitions and after having kept those directions in view, exercised its discretion in favour of Saint Bhagwan Shikshan Prasarak Mandal, Pangari. The learned Advocate Shri S. C. Bora for the University has strongly supported the action of the University. According to him, the University fully complied with the direction given by this Court in earlier petitions. He pointed out that after local inspection, the report was prepared by the Board of College and University Development and submitted its detail report together with recommendations with reference to comparative merits. The Management Council, after application of mind, submitted its recommendations to the State Government and, therefore, no fault can be found in the decision making process of the University.

16. The learned Senior Counsel Shri P.M. Shah vehemently submitted that the recommendations made by the University and the impugned order dated 30-4-2001 would clearly point out application of mind. He also submitted that all the proposals were strictly considered on its merits and, therefore, no defect can be found in the decision making process either of the University or of the State Government. The valid reasons are apparent on the face of impugned order dated 30-4-2001 and, therefore, the grievance made by the petitioners is not well founded. He submitted that the impugned order cannot be submitted to close scrutiny by this Court on the ground that this Court is not sitting in appeal over the decision of the State Government. According to him, this court cannot scrutinize the relative merits of the proposals. He submits that free play in joints is necessary concomitant while exercising the power of discretion. In order to support his submissions, the learned Senior Counsel Shri Shah relied upon :

1. Fasih Chaudhari v. Director General, Doordarshan and Ors., ; and 2. Dalpat Abasaheb Solunke etc. v. Dr. B.S. Mahajan, .

17. The respondents in these three writ petitions have filed affidavits in reply. They have strongly supported the actions of the University and the State Government. The State Government has specifically referred the power of absolute discretion in the matter of grant of permission to start a new school.

18. At the very outset, we would like to mention that we are not sitting in appeal over the decision of the State Government. We also make it clear at this juncture that we do not at all intend to scrutinize the relevant merits and dements of different proposals. Therefore, the ratio in the case of Dalpat Abasaheb Solunke (referred above) cannot be pressed into service.

19. We are strictly confined to the decision making process. Let us examine the procedure for permission. Section 82 of the Maharashtra Universities Act, 1994 speaks about procedure for permission. Sub-section (4) of Section 82 reads as under :

"Section 82(4). All such applications received within the aforesaid prescribed time limit, shall be scrutinized by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council."

20. The phraseology of Sub-section (4) would clearly go to show that the Board of College and University Development is under obligation to scrutinize the proposals and to forward to the State Government with the approval of Management Council with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.

21. We examined the documents made available to us for perusal by the University, particularly with regard to decision taken in the meeting of the Management Council on 26-12-2000. The material perused does not at all show application of mind with regard to merits and demerits of each of the proposals having regard to the infrastructure, students' strength, capabilities to establish and run a new college and financial resources. We, therefore, feel no hesitation in holding that the University has failed to discharge its legitimate duties as envisaged in Sub-section (4) of Section 82 of the Maharashtra Universities Act, 1994.

22. This Court had directed the University to consider the proposals on the lines of observations made in earlier writ petitions, of which reference is made above. This Court had specifically directed the University to submit its recommendations on inter se merits. This direction does not appear to have

been percolated to the desired destination. In spite of number of deficiencies pointed out in the decision making process, so far as earlier decision to start a new college for the academic year 1999-2000 is concerned, the University did not consider the proposals on the lines of observations made in the earlier writ petitions. We are therefore, constrained to observe that the University did not comply with the directions given by this Court in earlier writ petitions. The University with blatant disobedience, submitted recommendations without considering inter se merits. Under the circumstance, the impugned order cannot be said to be legal and valid.

23. Moreover, the mandate of Sub-section (4) of Section 82 of the Maharashtra Universities Act, 1994 is also flouted. Because the Board of College and University Development is required to submit recommendations duly supported by relevant reasons. In this particular case, the recommendations submitted by the Board of College and University Development are not supported by the relevant reasons.

24. The relevant record is worthy of comments. The record is placed on record in order to show that the Management Council duly assessed the recommendations in the light of the directions issued by this Court in earlier writ petitions. The meeting of the Management Council was held on 26-12-2000. It is claimed that in the said meeting, the recommendations "J" which were submitted by the Board of College and University Development, were considered and unanimous resolution was passed accepting the recommendations. The subject pertaining to the issue involved does not find place in the agenda of the meeting dated 26-12-2000. The issue involved in this writ petition does not find place even in the supplementary agenda dated 26-12-2000. The subject No. 7 is on loose paper not forming part of the main and supplementary agenda. Similarly, subject No. 8, which consists, of recommendations with regard to college at Shirur Kasar is also on loose paper not forming part of the principal or the supplementary agenda dated 26-12-2000. The papers do not at all indicate, even remotely, that merits of each of the proposals were separately considered. The manner in which the minute book of the meetings of Management Council is maintained, is highly abnormal. Separate typed sheets are pasted on the pages of minute book. Why such extraordinary method is adopted, is beyond comprehension. There are wheels within the wheels. In spite of scrutiny of these papers, the picture looks hazy.

25. There is reference in the impugned order dated 30-4-2001 that the University made scrutiny of all the proposals taking into consideration the merits and demerits of each of the proposals and thereafter submitted its recommendations to the State Government. There is further reference in the impugned order that the State Government took into consideration those recommendations and accorded sanction invoking the powers under Sub-section (5) of Section 82 of the Maharashtra Universities Act, 1994. In fact, there is no comparative study made by the University. In the earlier writ

petitions, this Court had specifically directed the State Government to consider the recommendations submitted by the University and pass an appropriate and reasoned order. The State Government has no doubt passed the order, which is claimed to be appropriate. However, the State Government has not passed a reasoned order. The directions of this Court given earlier are not at all substantially complied with.

26. Before coming to any conclusion with regard to the decision making process, one has to consider whether judicial review is permitted in the matter of administrative actions. In this behalf, reference to the case of Tata Cellular (referred above) is very much essential. The principle of judicial review is accepted in order to prevent arbitrariness or favouratism. The judicial power of review is exercised to rein in any unbridled executive functioning. Where the selection or rejection is arbitrary, the Court can interfere on the basis of doctrine of judicial review. Judicial review is concerned only with the decision making process and not with the merits of the decision.

27. The next question that falls for consideration is whether the reasons are required to be recorded on the background of power of absolute discretion. In this behalf, a reference with profit can be made to the case of S.N. Mukherjee (referred above). The Supreme Court has clearly and in unequivocal words stated that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. It is also observed by the Apex Court that recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision making. It is also stated by the Apex Court that what is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage.

28. We also want to make a reference to the case of Union of India v. M.L. Capoor (referred above). While dealing with the issue, the Supreme Court has said that the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. The Supreme Court went on to observe that they should reveal a rational nexus between the facts considered and the conclusions reached. The Supreme Court also said that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee.

29. We have considered the case of Fasih Chaudhari (referred above), which has been heavily relied by learned Senior Counsel Shri Shah

for the respondents. No doubt, it is well settled legal position that a fair play in action is an essential requirement. Similarly, fair play in the joints is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere bearing in mind the doctrine of free play in joints. We observe that the State Government has not considered all the recommendations fairly, reasonably, objectively and without any malice. There is lack of element of fair play in the decision making process adopted by the State Government. If the State Government would have considered all the proposals fairly and in reasonable manner, the doctrine of free play in joints would have been pressed into service. The impugned order dated 30-4-2001 would clearly point out that the State Government has not given reasons for approval of the proposal of Saint Bhagwan Shikshan Prasarak Mandal, Pangari and at the same time, rejecting the other proposals which were also recommended by the University.

30. The reason is the soul of administrative action. Reason clears the wilderness of the imagination. The order without reason is a dead letter. Mere enumeration of items required to be considered cannot infuse life in the order impugned. What is considered does not substitute the valid reasons. The reasons flow from deliberation with regard to comparative merits. In this particular case, there is a great vacuum of reasons which has not been filled in by the administrative actions. The ultimate order must reflect conscious application of mind. In this particular case, the impugned order is not supported by reasons. Therefore, wedge of judicial control justifies interference.

31. In the affidavit filed on behalf of the State Government, it is stated that the State Government has absolute discretion in the matter of grant of approval. In order to magnify this proposition, a reference is made to the provisions of Sub-section (5) of Section 82 of the Maharashtra Universities Act, 1994 in the affidavit of Dr. Pandurang Keche, who is the Joint Director of Higher Education, Aurangabad. No doubt, the power of absolute discretion is given to the State Government. However, this discretionary power is required to be exercised in a reasonable manner. Absolute discretion does not mean absolute arbitrariness. The very Sub-section (5) of Section 82 of the Maharashtra Universities Act, 1994 makes it clear that the absolute discretion is to be exercised in the light of what is right and what is proper. Even in case of extreme categories of discretion, the idea of fair play is inherent in the power of absolute discretion. The concept of absolute discretion does not absolve the State Government in each and every case from not giving reasons for its administrative actions. Having of one is necessarily exclusion of another and, therefore, fair play demands some kind of reasons for giving preference to someone. The external actions sometime show internal secrets. In spite of directions of this court given in earlier writ petitions, the State Government has not passed reasoned order. Therefore, we are inclined to

quash and set aside the impugned order dated 30-4-2001. It is to be remembered that weak foundation destroys the superstructure. The State Government has not laid a foundation in the form of valid reasons to support the impugned order. Therefore, our interference is justified. Law ought not to fail in doing justice to those with serious grievance. All the petitioners have demonstrated the serious grievance and, therefore, the impugned order dated 30-4-2001 is liable to be nullified.

32. In the result, all the petitions succeed. The impugned order dated 30-4-2001 passed by the State of Maharashtra granting permission to start a new college at Shirur Kasar to Saint Bhagwan Shikshan Prasarak Mandal, Pangari is hereby quashed and set aside. We direct the State Government to transmit back all the proposals to the University forthwith for its fresh consideration. The University, after having made scrutiny of the proposals strictly in accordance with the provisions of law and in full compliance of the observations made by this Court in earlier writ petitions, should submit its recommendations on inter se merits to the State Government before 31-12-2001. The State Government is directed to reconsider the recommendations to be submitted by the University afresh and pass appropriate and reasoned order before 31-1-2002.

33. Rule made absolute in the above terms. No order as to costs.