Nagar Yuwak Shikshan Sanstha'S ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 1435 Bom

JUDGMENT

D.D. Sinha, J.

1. Rule returnable forthwith. Heard finally by consent of Shri Naik, learned Counsel for the petitioner, Smt. Khade, learned Assistant Government Pleader for the respondent Nos. 1 and 2, Shri Kulkarni, learned Counsel for the respondent No. 3 and Shri Chaudhari, learned Counsel for the respondent No. 4.

2. The petition is directed against Government Resolution dated 15-10-2004 issued by the respondent No. 1 State Government whereby though State Government has granted approval to intake capacity of sixty students in the petitioner College, same is for the academic session 2005-06.

3. Shri Naik, learned Counsel for the petitioner, states that petitioner College was established in the year 1985 and intake capacity of students of the petitioner College was sixty right from its inception. Annual inspection of the petitioner College for the year 2004-05 was conducted by the respondent No. 4 All India Council for Technical Education and for the first time, intake capacity of the petitioner College was reduced to forty-five from sixty students due to certain deficiencies on the part of the petitioner College. However, on the very next day, respondent No. 4 by letter informed to the petitioner to remove deficiencies. It is submitted that all the deficiencies noticed by the respondent No. 4 during inspection were rectified by the petitioner College and, therefore, intake capacity of students was once again restored to sixty students by respondent No. 4 for the academic year 2004-05 vide order dated 13-9-2004.

4. It is contended by the learned Counsel for the petitioner that after order dated 13-9-2004 was passed by the respondent No. 4, petitioner approached respondent No. 1 State Government, i.e. Department of Higher and Technical Education, Mantralaya, Mumbai for grant of approval to intake capacity of sixty students. However, respondent No. 1 did not decide the case of the petitioner for grant of approval and, therefore, this Court vide order dated 12-10-2004 passed in Writ Petition No. 4651/2004 directed the respondent No. 1 to consider entitlement of the petitioner for grant of approval/sanction to intake capacity of sixty students and permitted petitioner College to give admission to the students in the course for the academic session 2004-05 provisionally with the clear understanding that the students, who will be admitted, shall not claim any parity on the basis of such admission. It is submitted that in view of the above referred order, petitioner has admitted additional students in the College.

5. Learned Counsel Shri Naik submits that respondent No. 1 vide Government Resolution dated 15-10-2004 though granted approval to the petitioner College in respect of intake capacity of sixty students, however, instead of granting the same for the academic session 2004-05, respondent No. 1 has granted the same for the academic session 2005-06- It is contended that respondent No. 4 is required to conduct inspection every year and grant approval to intake capacity of the petitioner College every year. It is further contended that the respondent No. 4 is a parent body for grant of approval in respect of intake capacity of petitioner College and approval of the State Government more or less is of formal nature. It is submitted that State Government on its own without approval of respondent No. 4, cannot accord approval to intake capacity of the College and as on today, respondent No. 4 has not granted approval to intake capacity of the petitioner College for the academic session 2005-06 and, therefore, State Government is incompetent to grant approval for the academic session 2005-06. It is, therefore, contended that direction may be given to respondent No. 1 to accord approval in respect of intake capacity of the petitioner College for the year 2004-65 in view of order dated 13-9-2004 of the respondent No. 4.

6. Shri Chaudhari, learned Counsel for the respondent No. 4, does not dispute the factual aspect of the matter and states that respondent No. 4 is required to conduct inspection of the College every year and grant approval in regard to intake capacity of the College every year. It is submitted that after taking into consideration pros and cons, respondent No. 4 has granted approval to the intake capacity of sixty students in the petitioner College for the year 2004-05. It is also contended that respondent No. 4 is the apex body and its decision is binding on all the Authorities including State Government.

7. Smt. Khade, learned Assistant Government Pleader for the respondent Nos. 1 and 2, states that last date of submission of application in respect of course run by the petitioner College was 30-6-2004 and, therefore, grant of approval by the State Government in respect of increased intake capacity from forty-five to sixty students was considered for the academic session 2005-06 and Government Resolution was issued in this regard by the State Government on 15-10-2004, which is based on order dated 13-9-2004 passed by the respondent No. 4. The learned Assistant Government Pleader does not dispute the fact that respondent No. 4 is the apex body, which has to decide and grant approval to intake capacity of students in the petitioner Institution and it is only after such approval is granted by the respondent No. 4, respondent No. 1 is competent to grant approval in regard to intake capacity of the Institution, It is submitted that in the instant case, respondent No. 4 granted approval/sanction to the intake capacity of sixty students in petitioner College vide order dated 13-9-2004 for the academic session 2004-05. However, in view of the above referred facts, the State Government granted approval in respect of increased intake capacity of the petitioner College for the academic session 2005-06.

8. Shri Kulkarni, learned Counsel for the respondent No. 3 Nagpur University, also reaffirms that the respondent No. 4 is the apex body, which is competent to decide the intake capacity of the Institution and decision of the respondent No. 4 is binding on all the Authorities including State Government.

9. We have given our anxious thought to the above referred various contentions of the learned Counsel for the parties. In the instant case, it is not in dispute that respondent No. 4 has granted approval in regard to intake capacity of sixty students of petitioner College vide communication dated 13-9-2004 for the academic session 2004-05. It is also not in dispute that respondent No. 4 is the apex body, which alone is entitled to decide intake capacity of the Institution. It is also not in dispute that decision of respondent No. 4 is binding on all the Authorities including State Government. It is no doubt true that after grant of approval/sanction by respondent No. 4 in respect of intake capacity of the Institution, the State Government has to grant approval formally. The job of the State Government for grant of approval is more or less formal in nature and depends upon grant of approval by the respondent No. 4. It is also not in dispute that State Government is not competent to grant approval in regard to intake capacity of the Institution in the absence of sanction by the respondent No. 4 for given academic year.

10. In the instant case, it is evident that respondent No. 4 has granted approval in respect of intake capacity of sixty students to the petitioner Institution vide order dated 13-9-2004 for the academic session 2004-05 and, therefore, State Government was required to consider grant of approval to the increased intake capacity of the petitioner College for the academic session 2004-05 particularly when there is no approval granted by the respondent No. 4 to the petitioner College in respect of intake capacity of students for the academic session 2005-06 and in the absence of such approval by the respondent No. 4, the State Government is not competent to grant such approval. In view of above referred undisputed facts, the impugned Government Resolution dated 15-10-2004 so far as it relates to grant of approval to the petitioner College in respect of intake capacity for the academic session 2005-06 is not sustainable in law and, therefore, it will be appropriate to direct the State Government to re-consider issue of grant of approval to the intake capacity of petitioner College in the light of order dated 13-9-2004 for the academic session 2004-05.

11. There is another aspect involved in the present petition, which also needs consideration. In the instant case, since respondent No. 4 granted approval in respect of intake capacity of petitioner College vide order dated 13-9-2004 and grant of approval by the State Government more or less is formal act, this Court vide order dated 12-10-2004 passed in Writ Petition No. 4651/2004 permitted the petitioner College to admit students as per intake capacity permitted by the respondent No. 4 during pendency of the decision to be taken by the respondent No. 1 in regard to grant of approval to the intake capacity of the petitioner College. The petitioner College, therefore, admitted students subject to result of decision of respondent No. 1. However, as we have already observed hereinabove, respondent No. 1 instead of granting approval to increased intake capacity of the petitioner College in view of order dated 13-9-2004 passed by the respondent No. 4 for the academic session 2004-05, granted the same for the academic session 2005-06, which is impermissible in law in view of the above referred facts since State Government is not empowered to grant approval for any academic session in respect of intake capacity of students in the absence of specific approval granted by the respondent No. 4 and, therefore, impugned Government Resolution dated 15-10-2004 so far as it relates to petitioner College is not sustainable in law.

12. The learned Assistant Government Pleader brought to the notice of this Court order dated 16-12-2004 passed by the Division Bench of this Court at Bombay in Writ Petition No. 9183/2004 whereby the said writ petition was dismissed. The said order reads thus :

"Heard the learned Counsel for the parties. By this petition, the petitioner is praying for a relief that the respondents be directed to fill or permit the petitioner to fill 15 seats of B. Pharmacy for the academic year 2004-05. We may mention here that as the said course has already commenced and we are now in December, 2004, the petition has become infructuous as of today. Hence, the petition stands dismissed."

The abovereferred order passed by the Division Bench of this Court does not reflect that Division Bench has taken into consideration the legal aspects involved in the controversy in issue and same is based only on the ground that course was already commenced and, therefore, the said petition was dismissed as infructuous. The above referred decision, therefore, in our view, does not have a binding precedent since the same is not rendered on the merits of the matter.

13. For the reasons stated hereinabove, we quash and set aside the impugned decision of the State Government reflected in Government Resolution dated 15-10-2004 only to the extent whereby approval is granted to increase intake capacity of the petitioner College of sixty students for the academic session 2005-06 and remit the issue back to the respondent No. 1 for reconsideration of the same for grant of approval to the increased intake capacity of the petitioner College in view of order dated 13-9-2004 passed by the respondent No. 4 as well as observations made by us in the present judgment for the academic session 2004-05 as early as possible and in any case not beyond the period of four weeks from the date of receipt of this judgment. If respondent No. 1 grants approval to the increased intake capacity of the students in the petitioner College for the academic session 2004-05, then respondent No. 3 is entitled to take appropriate steps as per procedure applicable in this regard.

14. The rule is made absolute in the above terms. No order as to costs. Certified copy expedited.