Bombay High Court
Saraswati Education Societys ... vs All India Council For Technical ... on 14 August, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4586 OF 2015
Saraswati Education Society's
Saraswati College of Engineering
established and run by the above mentioned
Trust registered under the Bombay
Public Trust Act, 1950, and Societies
Registration Act, through its
Secretary Mrs. Varushali Deshmukh,
having its office at Plot No.46,
Sector 5, Kharghar, Navi Mumbai,
Dist. Raigad - 410 210. .... Petitioners
vs
1 All India Council for Technical
Education (AICTE), through its
Advisor-II (Approval), Member Secretary,
a statutory Body under the Ministry
of HRD Govt of India, 7th Floor,
Chandralok Bldg., Janpat,
New Delhi 110 001.
2 The Regional Officer,
AICTE, Western Region Office,
2nd Floor, Industrial Assurance Building,
Veer Nariman Road, Opp. Churchgate,
Railway Station, Mumbai-400 020(M.S.)
3 The Secretary,
Higher & Technical Education,
Government of Maharashtra,
Mantralaya Annex Building,
Mumbai 400 032.
4 The Director of Technical Education,
1/63
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The Government of Maharashtra,
3, Mahapalika Marg,
Dhobi Talao, Mumbai 400 001.
5 The Pravesh Niyantran Samiti,
having its office at 305,
Govt. Polytechnical Building,
Kherwadi, Ali Yavar Jung Marg,
Bandra (East), Mumbai 400 051
6 The Registrar,
University of Mumbai,
University Campus, Fort,
Mumbai 400 032. .... Respondents
Mr Rafiq Dada, Senior Advocate with Mr. C.K. Thomas i/by M/s. C.K.
Thomas & Associates.
Mr. Mihir Desai, Senior Advocate with Mr.Swaraj Jadhav and Ms.
Sadhana Sariputta, Advocates for Respondent Nos.1 and 2-AICTE.
Mr. M.M. Vashi, Senior Advocate with Ms. Aparna Devkar and Mr.A.I.
Patel, Special Counsel for Respondent Nos. 3 and 4/DTE.
Mr. R.A. Rodrigues with Ms. Pranali Dixit, Advocate for Respondent
No.6.
CORAM: ANOOP V. MOHTA AND
V. L. ACHLIYA, JJ.
CLOSED FOR JUDGMENT ON : July 17, 2015.
PRONOUNCED ON : August 3, 2015/
August 14, 2015.
JUDGMENT (Per Anoop V. Mohta, J.):-
Rule. Rule is made returnable forthwith. Heard finally by
dgm 3 wp-4586.2015-3.8.15.sxw
consent of parties.
2 The Petitioners reliefs are based upon the following
events :-
The Petitioners is an institution established in the year
1997 and administered by the Trust viz. Saraswati Education Society.
The Petitioners' Engineering College is conducting the U.G. (Under
Graduate) Courses since year 2004 and P. G. (Post Graduate) Courses,
from the year 2011 after the inspection conducted by LIC and
Directorate of Technical Education (DTE) of the State of Maharashtra,
and after the scrutiny by the Expert Visit Committee (EVC) as
approved by Respondent No.1-All India Council for Technical
Education (AICTE). All these years, no major deficiency of any nature
has been pointed out by any of the Respondents regarding the
Petitioners' Engineering College. The State of Maharashtra has issued
GRs to that effect to the Petitioners' aforesaid courses and College.
The University of Mumbai, Respondent No.6 has time to time granted
continuation/affiliation to the Petitioners' Engineering College
including the affiliation for the academic year 2014-15.
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3 On 20.02.2015, pursuant to Respondent No.1's
Notification dated 24.01.2015, the Petitioners have submitted the
application on-line for extension of approval for the academic year
2015-16. The Petitioners submitted the copy of the application along
with the process fees and the requisite documents to the office of
Respondent No.2.
4 On 24.06.2014, Advisor-I (Approval Bureau) of
Respondent No.1. Issued a partial Extension of Approval to the
Petitioners' College as mentioned in paragraph (7) of the impugned
Order dated 24.06.2014 for the academic year 2014-15 on the basis of
some alleged complaint from the Citizen Forum. However,
Respondent No.1 has reduced 25% intake capacity for the academic
year 2014-15 from the available intake capacity. The Petitioners
challenged the order. On 11.09.2014, by a Judgment/Order this
Court in Writ petition No.6468/2014 directed Respondent No.1, to
grant an extension of approval of all existing engineering courses,
with full intake capacity, as granted for the academic year 2013-14.
5 On 25.03.2015, EVC conducted inspection at the
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Petitioners Engineering College and submitted a report to SCC
(Standing Compliant Committee). No report was handed over to the
Petitioners. A letter dated 17.4.2015 from Respondent No.1,
directing the Petitioner to attend the meeting before SCC. On
20.04.2015, Petitioners' made a detail representation of compliances
before the SCC meeting held on 22.04.2015. No intimation was given
as to who will decide the grant of Extension of Approval to the
Petitioners' Engineering College.
6 On 30.04.2015, by the impugned order Respondent No.1's
Advisor II (Approval), has reduced 25% intake capacity for the
academic year 2015-16. No reason has been given for further
reduction in the intake capacity by Respondent No.1. In effect, 55%
of the original intake capacity has been reduced, despite there being
no deficiency pointed out by the Competent Authority in the
impugned order.
7 The Petitioners, therefore, have filed the present Petition
on 5 May 2015 and prayed as under:-
"a. .......
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(i) direct Respondent No.1 to forthwith grant extension
of approval for the academic year 2015-16 for all the
existing Engineering Courses with full intake capacity as
granted to the Petitioners in the academic years 2013-
14/2014-15 i.e.
st
For 1 Shift UG Programmes
:
Civil Engineering - 120;
Mechanical Engineering - 120;
Electronics and Telecommunication - 120;
Computer Engineering - 60;
Automobile Engineering - 60;
Information Technology (1st Shift) - 60;
Civil Engineering (2nd Shift)
ig - 60;
Mechanical Engineering (2nd Shift) - 60.
st
For 1 Shift PG Programmes
:
Computer Engineering - 18;
Civil Engineering (Structural) - 18;
Mechanical Engineering
(Manufacturing System) - 18;
Electronics & Telecomm. Engg. - 18.
(ii) direct Respondent Nos. 1 to 4 and 6 to forthwith
permit the Petitioners to participate in CAP admission for all
the existing Engineering courses (as was approved in the
previous academic years 2013-14/2014-15) for the current
academic year 2015-16.
(iii) direct Respondent Nos. 1, 3 and 4 to forthwith upload
in their website in the list of `Eligible Colleges' with the
existing intake capacity as that of the academic years 2013-
14/2014-15 and to participate in the Centralized Admission
Process (CAP) for the academic year 2015-16 as per
schedule published by Respondent No.4."
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Prayers are also made for interim reliefs.
8 This Court, in view of urgency so expressed, on 6 May
2015, has granted an ad-interim reliefs:-
"a) We direct Respondent Nos. 4 and 6 to forthwith permit
the Petitioners to participate in CAP admission for all
the existing Engineering courses (as was approved in
the previous academic year 2013-14/2014-15) for the
current academic year 2015-16.
b) It is also clarified that non-listing of the Petitioners
institute/name on the AICTE Website will not affect
the admission process and implementation of prayer
clause.
c) However, this will be subject to the further orders of
this Court.
d) The Petitioners will not claim any equity on the basis
of this order.
e) It is also made clear that the Officer of Respondent
Nos. 3 and 4-Directorate of Technical Education,
Mumbai, is present in the Court and therefore, non-
availability of the present order should not be the
reason not to implement the order passed by this
Court today.
f) The Respondents to file reply affidavit on or before the
next date.
g) The Petitioners to file rejoinder and/or additional
affidavit, if any before the next date.
h) Stand over to 10 June 2015 for final disposal.
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The parties to act on the basis of an authenticated
copy of this order."
9 Respondents 1 and 2 (AICTE) have also filed reply
affidavit dated 9 July 2015 and resisted the prayers of the Petitioners.
The Petitioners have filed affidavit rejoinder dated 6 July 2015 and re-
iterated their case. Reference is also made to the current All India
Council for Technical Education Approval Process Handbook (2015-
2016) (the Handbook), apart from the Supreme Court and High Court
judgments. Respondents 3 and 4 (The State and the DTE) have also
resisted the case and claim of Petitioners on various grounds and
referred and relied on various Judgments in defence affidavit dated 9
June 2015. Respondent No.6- University of Mumbai (The University)
is also added as party Respondent, being affiliation granting authority.
Their affiliation is a must to start the course. Respondent No.5-
Pravesh Niyantran Samiti (PNS), now abolished and replaced by
authority under Maharashtra Ordinance No. VII of 2015 [The
Maharashtra Unaided Private Professional Educational Institutions
(Regulation of Admissions and Fees) Ordinance, 2015], dated 12 May
2015. There was no adverse communication from the University for
last year deficiencies, about the staff and/or the faculty issues.
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10 Both the parties have read and referred to various
Supreme Court and High Court judgments which are as under :
Judgments cited by the Petitioners' Senior Counsel:
(1) Rasid Javed and ors v. State of Uttar Pradesh 1
(2) Gullapalli Nageswara Rao and ors v. Andhra Pradesh State Road
Transport Corporation and anr. 2
(3) Union of India and ors v. Mohd. Ramzan Khan 3
(4) Institute of Chartered Accounts of India v. L.K. Ratna and ors 4
(5) Mahatma Education Society's Pillai's Institute of Information
Technology, Engineering, Media Studies & Research v. All
India
Council for Technical Education (AICTE) & ors., in Writ Petition
No.6021 of 2014 5 and also order dated 27.08.2014 in this matter.
(6) Dental College & Hospital of the Vidarbha Youth Welfare Society v.
Government of India and ors 6 .
1 (2010) 7 SCC 781
2 AIR 1959 SC 308
3 AIR 1991 SC 471
4 AIR 1987 SC 71
5 2014 (6) All M. R. 341 = 2015 B.C.R. 63
6 2013 BCI (O) 841
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Judgments cited and relied by the Respondents' Senior Counsel:
(1) Sopan Maruti Thopte and anr v. Pune Municipal Corporation and
anr and Shaikh Abdul Aziz and ors. v. Bombay Municipal
Corporation and ors 7 .
(2) The Secretary, A.P. Social Welfare-Residential Educational
Institutions v. Sri Pindiga Sridhar and ors 8
(3) Suresh Koshy George v. University of Kerala and ors 9 .
(4) Sunil Kumar Banerjee v. State of West Bengal and ors .
ig
(5) Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta
High Court
(6) Order dated 9.5.2014 in SLP (Civil) No.7277/2014-Orissa
Technical Colleges Association v. AICTE and anr .
(7) Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM Bed
College v. National Council for Teachers' Education and ors .
(8) Parshavanath Charitable Trust and ors. v. All India Council for
Tech. Edu and ors
(9) All India Council for Technical Education v. Surinder Kumar
Dhawan
7 MANU/MH/0053/1996
8 AIR 2007 SC 1527 : (2007) 13 SCC 352
9 AIR 1969 SC 198
10 AIR 1980 SC 1170 : (1980) 3 SCC 304
11 AIR 1956 SC 285
12 Order dated 9.5.2014 by Supreme Court in SLP(C) No.7277/2014
13 (2012) 2 SCC 16
14 Judgment dated 13.12.2012 in Civil Appeal No.9048/2012 with
Civil Appeal No.9047/2012 by Supreme Court
15 Order in Civil Appeal No.4349/2004 by Supreme Court dated
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(10) Adarsh Shiksha Mahavidyalaya and ors v. Subhash
Rahangdale
and ors .
(11) Khalapur Taluka Shikshan Prasarak and anr v. All India Council
for Technical Education and ors .
(12) G.H.R. Education Foundation Society, Shradha House, Nagpur
and anr. v. The State of Maharashtra and ors. With companion
matters
Supreme Court Schedule for AICTE/the State/The DTE/ The University:-
The Supreme Court, in Parshvanath (Supra) provides the
following schedule in para 38.
Sl. Stage of processing application Last date by
No. which the
processing
should be
completed.
(1) (2) (3)
1. For receiving proposals by Bureau RC. 31st December
2. For the Bureau RC to screen the application
and (a) to return the incomplete applications
to applicants, and (b) to forward the
applications to (I) State Government
18/02/2009 by R.V. Raveendran J.
16 Judgment dated 6.1.2012 in Civil Appeal No.104/2012 of Supreme
Court.
17 Judgment dated 1.8.2013 in Writ Petition No.4999/2013 of
Bombay High Court.
18 Judgment dated 21.10.2013 in Writ Petition No.8646/2013 by
Aurangabad Bench of Bombay High Court.
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concerned (ii) University or State Board
concerned, for their comments (iii) Regional
Officer to arrange visits by Export Committees,
and (iv) Bureaus MPCD, BOS and RA for their
comments.
3. For receiving the comments is from (I) the 15th March
State Government (ii) the University or State
Board and (iii) the Regional Committee based
on the Expert Committee's report and (iv) from
the Bureaus MPCD, BOS and RA.
4. For consideration of the comments from the 31st March
State Governments, Universities or State
Boards, Regional Committees, and Bureaus of
the Council by the State Level Committee.
5. For recommendation to be made by the Central 15th April
Task Force
6. For Communicating the final decision to the 30th April
State Government or the University Grants
Commission, under intimation to the Regional
office, Director of Technical Education,
applicant, University or State Board.
And also provides following schedule in para 43:-
Event Schedule
Conduct of Entrance Examination In the month of May
(AIEEE/State CET/Mgt. Quota
exams etc.)
Declaration of Result of Qualifying On or before 5th June
Examination (12th Exam or
similar) and Entrance
Examination
1st round of counselling/ To be completed on or
admission for allotment of seats before 30th June
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2nd round counselling for To be completed on or
allotment of seats before 10th July
Last round of counselling for To be completed on or
allotment of seats before 20th July
Last date for admitting candidates 30th July.
in seats other than allotted above However, any number of
rounds for counselling could
be conducted depending on
local requirements, but all
the rounds shall be
completed before 30th July
Commencement of academic 1st August
session
Last date upto which students can 15th August
be admitted against vacancies
arising due to any reason (no
student should be admitted in any
institution after the last date
under any quota)
Last date of granting or refusing 10th April
approval by AICTE
Last date of granting or refusing 15th May
approval by University/State Govt.
12 It is observed in para 48 (ii) that "No person or authority
shall have the power or jurisdiction to vary the Schedule prescribed
hereinabove". This is to be followed by all, being mandatory. There is
nothing on record to show and supported by the Respondents that
they have followed and complied with the schedule steps in time,
from beginning to end, as declared by the Supreme Court. There are
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breaches at every stages by the Respondents, apart from delay.
13 The Supreme Court on 15 December 2014 in Orissa
Technical Colleges Association Vs. AICTE & Ors. (Special Leave Appeal
(C) No(s). 7277 of 2014 directed that prior approval of AICTE is
compulsory and mandatory for conduct of a technical course for
academic session 2015-16. Public notice for approval process of 2015-
16 accordingly, advertised based upon All India Council for Technical
Education (Grant of approval for Technical Institution) Regulation,
2012. The filing of on-line application for the session 2015-16
commenced from 24 January 2015 and ended on 2 March 2015, (as
per public notice of AICTE). The process should have ended on 10
April 2015. The scheduled/steps and the dates, itself were not
followed inspite of the judgments/orders. The basic unreasoned order
was passed on 17 April 2015 and another same type order on 27 April
2015 and final non-speaking order on 30 April 2015. All these orders
are in breach of their own rules and elements of natural justice.
Similar Objections decided earlier:-
14 This Court (Anoop V. Mohta & A.A. Sayed, JJ.) on 14 July
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2014 in Mahatma Education Society's Pillai's Institute of Information
Technology, Engineering, Media Studies & Research (supra), has
considered similar objections/issues in view of last academic year
(2014-15) order/decision of AICTE revolving around the "no
Extension of Approval" and/or "No Admission" category and/or
reduction of intake capacity of Undergraduate, Degree and/or Post-
graduate Degree and the Diploma Courses. It is observed as under:
"3 "Technical education" and related aspects are
controlled and governed by the All India Council for
Technical Education Act, 1987 (For short, "AICTE Act").
The aim and object by the AICTE Act is to co-ordinate
and integrate the development of technical education
system at all levels throughout the country to provide
and promote qualitative technical education in planned
manner. The AICTE is required to regulate and ensure
proper maintenance of norms and standards in technical
education system. It also involves regular performance
appraisal for technical institutions and Universities. The
AICTE, therefore, is under obligation to control the
norms and standards for common development of such
education in the country.
4 The Act itself provides for grant of extension
of approval to existing institutions, for starting new
technical institutions, for adding of new courses in
existing institutions and variation in intake capacity in
consultation with the other Respondents/Authorities.
On the basis of this Act, therefore, various authorities,
Board, Council have been created to control and
supervise technical education and all its related aspects.
This itself means, AICTE is having various functions and
powers and being a specialized body is empowered to
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ensure that all the institutions recognized by the AICTE
are possessed of complete infrastructure/staff and other
facilities and have capacity of maintaining quality
education standards for imparting technical education.
6 In view of judgment in Association of
Management of Private Colleges Vs. All India Council for
Technical Education & Ors. 19 dated 25 April 2013, the
role of AICTE was curtailed. The Supreme Court has
held that no such approval of AICTE is necessary, once
the University has given its affiliation to start such
technical course. However, by order dated 9 May 2014,
the Supreme Court directed that for the present academic
year 2014-2015, AICTE would be the approval granting
authority. We are informed that the issues in
Association of Management of Private Colleges (supra)
are referred to a Larger Bench and the same is pending in
the Supreme Court. It is clear that for the academic
year 2014-2015, the AICTE, in view of the provisions of
law and the judgments is the supreme authority to grant
approvals.
7 The Supreme Court by order dated 9 May
2014 referred to above, in Petition for Special Leave to
Appeal (Civil) No. 7277 of 2014, (Orissa Technical
Colleges Association Vs. AICTE & Anr.), extended the date
for AICTE to grant approval/sanction to 10 June 2014
by referring to earlier order dated 17 April 2014,
whereby the Supreme Court has directed the AICTE to
proceed in accordance with the approval process for the
academic year 2014-2015. This itself means the time
table/schedule so fixed in the case of Parshvanath
Charitable Trust vs. All India Council for Tech. Edu. was
re-scheduled. April 30 of the respective year was the date
fixed by the Supreme Court to complete all formalities
and to grant approval by the AICTE and/or its Appellate
Authority.
19 (2013) 8 SCC 271
20 (2013) 3 SCC 385
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11 There are about 1800 private/aided and
non-aided institutions in Maharashtra imparting
technical education. There are about 11,000 institutions
throughout the country. Admittedly, since 2009 the
institutions in Maharashtra and particularly the present
institutions have not been inspected by AICTE within the
time frame prescribed. The respective institutions, as per
the procedure, submitted and provided the details to
AICTE for extension of approval for the academic year
2014-2015. For the earlier years, as per the procedure,
on making the on-line Application, AICTE used to grant
them approval from time to time. Further, in the year
2014-2015, as recorded above, at the fag-end i.e. on 9
May 2014 they invited applications. Therefore, they
themselves were not in position to comply with their own
rules and adhere to the cut-off dates. AICTE has not
inspected the institutions since 2009. It has not given
opportunity to defaulting institutions, to remove
deficiencies, if any, or put on record their justification in
time before taking action to withhold the extension of
approval. The situation appeared to be beyond the
control of AICTE to manage and to take inspection
and/or pass adverse orders after giving show cause notice
and hearing the parties concerned for the present
academic year 2014-15.
12 It appears that on the basis of Complaints
filed by some organizations and/or individuals, AICTE
constituted a High Power "Fact Finding Committee" (for
short, the Committee) to examine the complaints and to
make its recommendation. The Committee after holding
their respective meetings initially heard only one
complainant viz. Citizens Forum for Sanctity in
Educational System and not the representative of the
Petitioners. Admittedly, though their Complaint was
against 32 institutions, the Complainant for undisclosed
reasons, restricted their Complaint to 13 institutions
only. Most of them are the Petitioners in this group of
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Writ Petitions. It is contended that no show cause notice
and/or hearing was given to the Petitioners before taking
action of withholding extension of approval........
15 There is no material that, out of 1800 such
institutions in Maharashtra, only these are the defaulting
institutions. The complainant also unable to justify their
restrictions and insistence to proceed only against these
institutions. There is also nothing on record to show that
all other 1800 institutions are without any deficiencies.
16 We are not suggesting that institutions
should not remove the deficiencies. But, this is not the
way to deal with such institutions on the basis of private
complaint by giving unilateral hearing to them thereby
adopting a pick and choose policy. It is an admitted
position that for the academic year 2014-15 because of
the time constraints, AICTE has not made site visits in
case of other institutions seeking extension of approvals
or for that matter additional courses/increase in intake
capacity. Timely and proper opportunity should have
been given before passing such orders and paucity of time
can be no reason for not following due procedure of law.
Timely action should have been taken. The impugned
orders are in breach of natural justice, fair-play and
equity and therefore, required to be tested also on the
anvil of Article 14 of the Constitution of India. The
Respondents discriminatingly selected the Petitioners'
old established institutions some of which are of high
repute and passed the impugned orders. We have also
noted that the High Power Committee never
recommended and/or directed to take such drastic action
at this stage of academic year 2014-2015.
17 We have gone through the deficiencies so
alleged and referred to by the Counsel appearing for the
respective Petitioners. We find that some of the
deficiencies are curable. Other deficiencies relate to land,
play-ground, occupation certificate, nature of occupancy
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with permission and/or without permission, common
play-ground, sharing of premises, less area, running by
the institutions from campus, less land/insufficient land
or built-up area, class rooms or laboratories, the multiple
use of same premises and requisite staff/ faculty/less staff
are required to be dealt with as per the norms prescribed
in AICTE handbook. We have gone even through those
basic norms para 9.1.5 about land area requirements,
para 9.1.6 classification of building areas norms para
12.2 and para 10 which deal with the multi use of
facilities shows that the interpretation and submissions of
Petitioners if accepted, there will be no deficiencies. The
authorities before passing order based upon their
understanding of those norms, though permitted the
Petitioners to run the institutions/colleges/courses for so
many years suddenly took U-turn and discarded the
submission/explanation so given by the respective
Petitioners without giving reasons on those issues. Those
norms and standards including regulations of grant of
approval for technical education itself provide for
relaxation/exemptions. We fail to understand that if
there were indeed some area/land deficiencies, how the
letters of approval were issued to the Petitioners at the
threshold. We are not here to give decisions on the
respective deficiencies at this stage, but as submitted by
the learned counsel appearing for the Petitioners that
those norms and standards and regulations/rules unless
interpreted and/or considered by this Court and/or even
by the supreme authority under AICTE Act and/or other
Act, such drastic action would definitely cause injustice
and hardship to all the concerned. There is nothing on
record to show that any findings and/or reasons have
been given by the Council, while interpreting these
regulations. It is relevant to note that there is power to
relax, whereby the Council may in exceptional cases for
removal of any hardship and/or other reasons to be
recorded in writing, relax any of the deficiencies of this
kind of any classes or categories of institutions. No
proper opportunity was given to the Petitioners to put up
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their case before taking such drastic action. The
decision, therefore, so taken is arbitrary and not in
consonance with the various norms and regulations of
AICTE. Due to time constraints, as the impugned orders
are passed at the eleventh hour just before the admission
process was to begin, the Petitioners had no opportunity
to remove the deficiencies and/or file Appeals before the
Appellate Authority.
22 The scope of writ jurisdiction is wide and so
also it's restrictions. It depends upon facts, circumstances
and situations specifically when dealing with the expert
body's decision. The time schedule fixed in Parshvanath
(supra) has been re-scheduled by the Supreme Court. If
case is of perversity, illegality in following due procedure
of law, it is settled that any decision/order passed in
breach of principles of natural justice, fair play and
equity and which causes injustice, hardship and prejudice
and specially when it relates to students and higher
education and which affect the people at large, High
Court in writ jurisdiction, may interfere with the same,
to test the validity, illegality of such action. A Division
Bench of this Court in Dental College & Hospital of the
Vidarbha Youth Welfare Society vs. Government of India
& ors while dealing with the provisions of Dentists Act,
1948 and the power of supreme Authority under the Act
referring to the establishment of New Dental College and
courses held that apart from others "There is no bar to
interfere in expert body's decision.". There also similar
objection was raised by the Respondents and opposed for
the grant of any relief in favour of the institutions. The
Division Bench, based upon the facts, even directed the
respective Council to reconsider the representation made
by the Petitioners and further ordered to have fresh
inspection and to pass order in accordance with law by
giving an opportunity to the Petitioners. It is also noted
in the said judgment as follows :
21 2013 (5) ALL MR 830
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"32 The peculiarity of the fact in the present case
which the Court just cannot overlook merely because the
impugned decision is taken by the expert body. As noted
above, the expert and/or expert body and/or institution
and their power just cannot be decided by the Court so
far as the matter pertained to and/or related to the
students and/or academic sessions. Any Tribunal/body
even of experts, if takes certain quasi judicial or
administrative decisions by which they take away and/or
infringe the rights of any person and/or institution and if
there is breach of principles of natural justice, we are
inclined to observe that the High Court need to test the
decision/oder if case is made out. There is no bar
whatsoever that the decision of the expert body in such a
situation cannot be interfered with and/or the High
Court has no power to test the decision."
24 It is not in dispute that it was AICTE itself
has granted extension of approval to these institutions for
last many years. It is an admitted position that AICTE
has acted merely on the complaints filed by the Citizens
Forum of Fairness in Education. AICTE in its Affidavit-
in-reply has averred that that it was based on the
complaints of the Citizens Forum of Fairness in Education
that a CBI enquiry was conducted and the then AICTE
Chairman and Secretary were arrested in 2009. We are
not intending to interfere with the pending investigation
or inquiry, if any."
15 We had granted an interim reliefs in favour of others also
being similarly situated Petitioners. The interim reliefs ultimately had
attained finality as those Writ Petitions were allowed. The SLP
(Special Leave Petition) filed by the Petitioners for non-compliance of
the Judgment was also disposed of in their favour. The Respondents
dgm 22 wp-4586.2015-3.8.15.sxw
never challenged the above Judgments and orders and/or any reasons
so quoted.
16 The Petitioners' last year's case was also finally allowed by
referring to the above reasons and the Judgments. Writ Petition
No.6468/2014, Saraswati Education Society's Saraswati College of
Engineering vs. All India Council for Technical Education (AICTE) and
ors, by order dated 11 September 2014 (Anoop V. Mohta and F. M. Reis,
JJ.).
17 The Petitioners' infrastructure and the other conditions as
required by AICTE as noted have been same. There is no substantial
change so far as the existing requisite infrastructure and facilities are
concerned, except the same last year deficiencies and its justification
on record. We have never restricted the power and the authority of
Respondents to deal with the deficiencies. This Court, after hearing
both the parties, considering the deficiencies so read and referred, by
reasoned order, had allowed the Petitioners' prayers. Those
deficiencies and respective explanation/clarification so given by the
Petitioners' ought to have been re-considered before
dgm 23 wp-4586.2015-3.8.15.sxw
passing/recommending 25% reduction in intake capacity in all the
courses, (as per the last approval of the year 2014-2015) for the year
2015-2016.
18 We have noted the regular reduction from academic year
2013-2014 to 2015-2016 as under :-
Year UG DTE Allotments/ PG DTE Reduction
Students Allotment/ AICTE
admitted.
ig Students
2013-14 660 660 72 72
2014-15 480 660 (as per Court 36 72 (as per 25.00%
order) Court order)
2015-16 360 28 30.00%
19 For the academic year 2015-2016, Respondent No.1 has
reduced the intake capacity by 30% which comes to 55% total intake
of 2013-14, though there was no substantial change in the alleged
deficiencies and they have sufficient infrastructure and facilities to
conduct Engineering courses with the claimed capacity. No specific
reasons are assigned for such reduction, though there is a clear
judgment of this Court and direction to Respondents 1 and 2 to
approve intake capacity as prayed. The Petitioners have been
admitting the students as referred above since 2013-14. The
dgm 24 wp-4586.2015-3.8.15.sxw
reduction was uncalled for.
20 We had considered the overall deficiencies raised by AICTE
and explanation put-forth by the Petitioners, while considering the
grant of interim relief for admitting students in current academic year
2015-16. Instead of considering the earlier decision in the matter, the
AICTE has pointed out same deficiencies and in addition, raised some
additional deficiencies, which according to us not of substantial in
nature to reduce the intake capacity to admit students. Such decision
must be based upon sound reasons and too the larger objective to be
achieved to maintain high standard of technical education by the
expert body like AICTE.
AICTE- Approval and appeal process-Handbook-
No Occupation Certificate:-
21 Respondent No.1-AICTE, every year issued a Approval
Process Handbook of All India Council for Technical Education. We
are concerned with the handbook of 2015-2016. There are prescribed
Committees of the General Council, which is a final Authority under
AICTE Act. There is an Executive Committee, Standing Appeal
dgm 25 wp-4586.2015-3.8.15.sxw
Committee, Regional Committee, Scrutiny Committee for Scrutiny of
applications under Chapter I and II of Handbook for approval process.
There is an Expert Visit Committee (EVC). The Standing Complaints
Committee, before whom EVC normally submits report, after receipt
of application for restoration/extension of approval of the next
academic year. The Standing Complaints Committee recommends the
respective case before the Executive Committee, for a necessary
approval/ratification. There is an Appellate Authority available under
Chapter I.
22 Normal practice of making on-line Application in the
prescribed form for extension/approval including for additional seats,
is followed every year. The grant of approval is based on self
disclosure of facilities and infrastructures. An affidavit is required to
be filed by the institution about the facilities and infrastructures as per
the Handbook. The procedure is provided to invoke the provisions
both for the Civil and Criminal actions. The procedure is prescribed
for processing the applications, so also the action in case of violation
of regulation of non fulfillment in faculty, Student ratio, not adhering
to Pay-Scales and/or qualifications prescribed for teaching staff and
dgm 26 wp-4586.2015-3.8.15.sxw
non fulfillment of other required facilities. The built up area can be
another issue. The land requirements for Technical Institutions is
prescribed and so the faculty requirements and cadre ratio. It is
necessary for the Institution to submit documents in support of their
case, including a certificate of the Competent Authority that has
allowed the use of land on which the concerned Institution is located
for the education purpose and/or for establishment of Institution.
Building plans approved by the Competent Authority mentioning
additional carpet area fulfillment for additional intake applied are to
be submitted. There is no requirement of submitting Occupation
Certificate. So far as the occupation certificate is concerned, though
discussed in the judgment last year, the Respondents by overlooking
the same, again treated the same deficiencies to reduce 25% intake
capacity, as recorded above. The Respondents failed to take note of
getting occupation certificate from the local authorities/Government
and vario0us reasons behind it. There is no case that the Petitioner's
occupation is illegal and/or unauthorized. The formality of getting the
occupation certificate ought not to have been the reason to take such
drastic action specifically when the Petitioners have also applied for
occupation certificate and the same is pending because of change of
dgm 27 wp-4586.2015-3.8.15.sxw
policies of local authorities and the Government. The statement is
made that it will be made available as early as possible. The steps
which the Petitioners have been taking to get the same is also
elaborated in additional affidavit dated 15.07.2015.
23 Therefore, insistence of Occupation Certificate, in the
present case, though other documents are sufficient to accept the case
of fulfillment of requisite infrastructures and facilities, was uncalled
for and the decision on that ground of reduction of intake capacity
inspite of existence of legally and fully authorized structures, is bad in
law. That should not have been reason to reduce the seat numbers.
There is no specific reason provided to make such reduction in the
intake capacity for the academic year 2015-16, specifically in the
background of the Division Bench Judgment/order passed by this
Court, dealing with the same situation for academic year 2014-15
whereby, directed AICTE to grant the approval, which according to the
Petitioners, AICTE granted last year. The Petitioners having
infrastructures and requisite facilities and completed the faculty
requirements and cadre ratio, there was no reason to take such action.
The Petitioners have been, as recorded, imparting the technical
dgm 28 wp-4586.2015-3.8.15.sxw
education since so many years with requisite permission/affiliation
from the State/University/Technical Board, apart from approval from
AICTE regularly. This year also AICTE has granted the approval, but
reduced the number of seats, inspite of having legal and valid
infrastructures and facilities. The reduction of seats, in the present
facts and circumstances, therefore unsustainable and so also the last
day decision.
Illegal Structure-Still approved by Respondent No.1-
24 It is relevant to note that a stated illegal structure of the
institutions, in Andhra Pradesh, does not prevent AICTE from granting
such approval. The Minutes reproduced hereunder:-
"Minutes of the 78th meeting of the Executive Committee of
Respondent No.1 held on 17.09.2012 at their office at New
Delhi reads as under: (Item No. 78.03.08-page 4)
"To consider action requested by Principal Secretary to
Government of Andhra Pradesh, Municipal Administration
& Urban Development (M) Department against
Engineering Institutions (46 colleges) functioning in
Unauthorised Buildings in Hyderabad Metropolitan
Development Authority, Hyderabad (HMDA) Jurisdiction.
The Executive Committee deliberated on the letter of
Principal Secretary to Government of Andhra Pradesh. It
was noted that the existing institutions were granted
approval in the preceding years based on the rules
applicable in the respective year and hence will not be
dgm 29 wp-4586.2015-3.8.15.sxw
reviewed by AICTE in the light of revised norms. However,
approvals to new institutions will be granted based on the
guidelines of HMDA.....".
Deprived of Appeal provisions-stated cut off date:-
25 The Respondents have passed impugned order on 30 April
2015. This date is the last date, as per the guidelines framed by the
Hon'ble Supreme Court in Parshvanath (Supra). The Appeal before
the Appellate Committee, is the available provision under the
handbook. The Institution, aggrieved by the decision of the Executive
Committee of the Council, is entitled to file an Appeal before the
Appellate Committee, which required to be constituted by the
Chairman, AICTE. The recommendation/decision of the Appellate
Committee required to be placed before the final Authority, General
Council of AICTE. There is a prescribed procedure whereby, a
representative of the Institution is invited to place their point of view.
The decision of the Council of rejection and/or approval against such
Appeal, is also required to be communicated. Admittedly, in the
background so referred above, by impugned communication dated 30
April 2015, deprived the Petitioners and/or such Institution to file
Appeal within a prescribed period, so that their entitlement and/or
right to pray for approval and/or grant of the approval as prayed
dgm 30 wp-4586.2015-3.8.15.sxw
could not be heard and decided prior to 30 April 2015. The
Petitioners and/or such Institution, because of inaction of AICTE lost
their rights to Appeal. The question is not of rejection of their
Applications on 30 April 2015. AICTE, being a statutory authority, by
not taking timely action though prescribed by the Supreme Court,
takes away and denied the rights of hearing Appeal and final decision
from the highest Authority of AICTE. To say that there no prejudice
caused, though AICTE has passed order on 30 April 2015, is
unacceptable. Timely action, including inviting applications as per the
scheduled if not complied with, the Petitioners and/or such person
have been denied of their entitlement, as prayed. This amounts to
rejection of their legal rights on 30 April 2015 by passing such orders,
knowing fully its effect. This itself is unjust, impermissible, arbitrary
and reflects consideration other than legal. The submission, therefore
in this background, of the learned counsel appearing for the
Respondent- AICTE, as well as, the State, that this Court now cannot
pass any order after cutoff date, so prescribed by the Supreme Court,
in the facts and circumstances, is unacceptable. It is not the case that
the Respondents initiated the action in time, as guided by the
Supreme Court and/or by this Court. Timely action, could have
dgm 31 wp-4586.2015-3.8.15.sxw
allowed the Petitioners to challenge the whole process and/or by
challenging such decision before the Appellate Authority and they
could have reiterated and re-submitted their stand with supporting
documents that there are no deficiencies. They could have pointed out
that the deficiencies are not the major deficiencies to deny the
approval so sought by the Petitioners. The mechanism so adopted by
the Respondents, thereby denying the legal rights of the Petitioners
and now submitted their defence on the basis of cut-off date, though
already deprecated earlier by the Division Bench, the repetition of the
same, therefore, required to be interfered with. The contentions of
the Respondents of cut-off date and that this Court cannot pass any
order of extension of approval for full intake capacity as prayed, are
also liable to be rejected, at the instance of the Respondents at least,
in the background of the specific cases and the Judgments/orders of
this Court.
26 In Asha Vs. Pt. B.D. Sharma University of Health Sciences &
Ors. the Apex Court observed that:-
"32. Though there can be rarest of rare cases
or exceptional circumstances where the courts may
22 (2012) 7 SCC 389
dgm 32 wp-4586.2015-3.8.15.sxw
have to mould the relief and make exception to the
cut-off date of 30th September, but in those cases,
the Court must first return a finding that no fault is
attributable to the candidate, the candidate has
pursued her rights and legal remedies expeditiously
without any delay and that there is fault on the part
of the authorities and apparent breach of some rules,
regulations and principles in the process of selection
and grant of admission. Where denial of admission
violates the right to equality and equal treatment of
the candidate, it would be completely unjust and
unfair to deny such exceptional relief to the
candidate. [Refer Arti Sapru v. State of J & K,
(1981) 2 SCC 484: 1981 SCC (L&S) 398, Chavi
Mehrotra v. DG, Health Services, (1994) 2 SCC 370,
and Aravind Kumar Kankane v. State of U.P., (2001)
8 SCC 355."
The person who hears must decide:-
27 So far as the submission advanced that the person who
hears must decide, was raised and decided by this Court in the
judgment so referred above. The Division Bench of this Court
(Coram:- Anoop V. Mohta and A. A. Sayed, JJ.) in the judgment
Mahatma Education Society's Pillai's Institute of Information Technology,
Engineering, Media Studies & Research (Supra) by referring to the
Supreme Court judgments in Rasid Javed and ors v. State of Uttar
dgm 33 wp-4586.2015-3.8.15.sxw
Pradesh (supra) and Gullapalli Nageswara Rao and ors v. Andhra
Pradesh State Road Transport Corporation and anr. (supra), by noting
the Supreme Court observation that "the person who hears must decide
and that divided responsibility is destructive of the concept of judicial
hearing is too fundamental a proposition to be doubted". This Court, in
paragraph 14, has observed thus:-
"14 Therefore, at this stage we are definitely
concerned with the way and manner by which AICTE
has taken the decisions. AICTE after collecting
information did not grant reasonable time and
opportunity to the Petitioners' institutions and passed
the impugned orders. From the record, it is apparent
that the Petitioners were heard by the Standing
Complaints Committee and the impugned orders
were passed by another Authority viz. Competent
Authority (i.e. Chairman of AICTE). Normally, the
authority who hears the parties must pass orders.
(See Rasid Javed & Ors. Vs. State of Uttar Pradesh &
Anr. and Gullapalli Nageswara Rao Vs. A.P
. SRTC )
In the present cases, prima-facie, it appears that
authorities/ bodies, invoked their respective powers
at different stages and ultimately the impugned
orders were passed against the Petitioners without
giving proper and reasonable opportunity, in breach
of the principles of natural justice as well as the
respective provisions/ procedures declared by AICTE.
These orders will cause great injustice and hardship
to the institutions, staff and the students. The
investments so made by the Petitioners also just
cannot be overlooked."
23 2010(7) SCC 781
24 AIR 1959 SC 308
dgm 34 wp-4586.2015-3.8.15.sxw
Natural Justice- No straight jacket formula:-
28 Both the learned counsel appearing for the parties have
read and referred the doctrine of natural justice. There is no issue
that the principle of natural justice is not a straight jacket formula.
We have to consider the facts and circumstances of each case. The
law so read and referred by the parties in this regard, as settled, need
no further discussion, but the basic elements of natural justice and its
principles need to be followed by all, unless there is a clear mandate
to exclude the same. [Institute of Chartered Accounts of India v. L.K.
Ratna and ors (supra), Swamy Devi Dayal Hospital and Dental College
Vs. Union of India and Ors.25]. We have also noted the same principles
recently in Writ Petition No. 5378 of 2013 - Jayshree Vijay
Mundaware vs. The Principal/Head Mistress of Ashoka Universal School
Chandsi/wadala, Nashik and ors., on 21 July 2015, which read as
under:-
"27 We have already elaborated such aspects
in similar situation (Preeti Mulji Sondarwa Vs. The
Controller of Examinations, Writ Petition No. 3776 of
2015, dated 10 July 2015 (Coram - Anoop V. Mohta
25 (2014) 13 SCC 506
dgm 35 wp-4586.2015-3.8.15.sxw
and V.L. Achliya, JJ) though by an interim order, but
considering the settled position of law revolving
around the principles of natural justice and its
elements which we want to rely upon in this matter
also while deciding this Petition finally. We are
reiterating in the present matter the following points-
"33 The basic principle of natural justice
again reiterated by the Apex Court in Anand Brothers
Private Limited Vs. Union of India & Ors. and
Gorkha Security Services Vs. Government (NCT of
Delhi) & Ors. .
ig In Gorkha Security Services (Supra)
the principle of natural justice even considered in
administrative law, including covering proper show
cause notice, purpose and reasoned orders are
elaborated though not in education matter, but
principle just cannot be denied as referred in other
connected and supreme Court Judgments in the
matter. Academician and/or expert body's decision
are bound by such principle, when it goes to taking
adverse decision and/or passing any order affecting
the legal rights of the parties. Duty to give reasons
and/or recording reasons and/or passing speaking
order, is essential not only the Court, Tribunal,
Judiciary but to all who takes decision, covering the
rights of the parties.
34 The Apex Court in Gorkha Security
Services (Supra) has further observed as under:-
29. No doubt, rules of natural justice
26 (2014) 9 SCC 212
27 (2014) 9 SCC 105
dgm 36 wp-4586.2015-3.8.15.sxw
are not embodied rules nor can they be
lifted to the position of fundamental
rights. However, their aim is to secure
justice and to prevent miscarriage of
justice. It is now well-established
proposition of law that unless a statutory
provision either specifically or by
necessary implication excludes the
application of any rules of natural justice,
in exercise of power prejudicially affecting
another must be in conformity with the
rules of natural justice.
35 The elements of "natural justice", "Show-
cause notice"/"notice", "disclosure of material",
"opportunity of all kind including of rebuttal",
"aspects of burden of proof", "oral or personal
hearing", "pre-decisional and post-decisional
hearing", "reasoned order", "decision" "speaking
order". This also includes, "Appellate Authority and
powers of applying same principles, hearing and
reasoned order." All these cannot be just read and/or
need to be a "empty formality". This is in the
background of duty to act judicially and to act fairly,
keeping in mind the elements of bias, prejudice and
influence of various kind. The effect of such elements
and/or breaches of principle of natural justice are all
interlinked and interconnected, the order of action is
null and void and unsustainable in view of settled
position of law declared by the Supreme Court
and/or various High Courts. In the present facts and
circumstances, and for the reasons so recorded above,
we are also inclined to declare so.
36 In Anand Brothers Private Limited
(Supra), the Apex Court has further dealt with the
aspect of importance of findings and conclusion and
the reasons on the facts and law and/or mixed
question of law and facts. It is also observed as
dgm 37 wp-4586.2015-3.8.15.sxw
under:-
"33. .......A statute is best interpreted
when we know why it was enacted. With
this knowledge, the statute must be read,
first as a whole and then section by
section, clause by clause, phrase by
phrase and word by word. If a statute is
looked at, in the context of its enactment,
with the glasses of the statute-maker,
provided by such context, its scheme, the
sections, clauses, phrases and words may
take colour and appear different than
when the statute is looked at without the
glasses provided by the context. With
these glasses we must look at the Act as a
whole and discover what each section,
each clause, each phrase and each word is
meant and designed to say as to fit into
the scheme of the entire Act. No part of a
statute and no word of a statute can be
construed in isolation. Statutes have to be
construed so that every word has a place
and everything is in its place."
"The elements of natural justice are still
available to/for all."
Unreasoned and non-speaking order by the Respondents.
29 In the present case, we have noted that no specific reasons
are provided by the deciding Authority before passing such order of
reduction specifically when this Court has dealt with various such
aspects of deficiencies and directed them to grant intake
dgm 38 wp-4586.2015-3.8.15.sxw
capacity/permission as prayed last year. The Respondents/Authority,
inspite of the clarification so issued by the Petitioners, apart from the
reasons, so mentioned in the judgments, if wanted to take other view
and/or contrary decision, the opportunity of hearing ought to have
been given to the Petitioners', apart from the reason in support of the
same. The speaking order is a must even for the
Respondents/Authorities to pass any adverse order. The impugned
orders, as noted, are non-speaking orders.
Earlier decisions and orders on similar issues, bind the Respondents:-
30 It is relevant to note that in Mahatma Education Society's
Pillai's Institute of Information Technology, Engineering, Media Studies &
Research (Supra), based upon the academic year 2014-15 in similar
decision of AICTE, this Court has dealt with, specifically the issue of
re-schedule of time table of the Supreme Court, in para 7. "About
1800 private/aided and non-aided institutions in Maharashtra", "not
inspected the institutions in Maharashtra since 2009 except so
referred above", "no opportunity to remove the deficiencies given" and
"overlook the justification before passing the impugned order of
withholding of extension", "nothing on record to show that all other
dgm 39 wp-4586.2015-3.8.15.sxw
1800 institutions are without any deficiencies, whether complaints
and/or no complaints. Last year also, the action was initiated based
upon the complaints against the Petitioners and other 12 Petitioners,
are dealt in para 11 and 12. The observations are clearly made of no
hearing and exclusive hearing to the complainant "Citizen Forum for
Sanctity in Educational System", no show cause notice and hearing
was given to the Petitioner before taking action of withholding the
action of approval in para 12. The aspect of discrimination and
breach of principle of natural justice, fair-play has specifically dealt
with in paragraph 16. Specific issues relate to land, play-ground,
occupation certificate, nature of occupancy, common play-ground,
sharing of premises, less area, insufficient land and/or built-up area
have been dealt with in para 17, referring to the norms prescribed in
AICTE handbook. The observation with regard to the required
interpretation and relaxation/execution are also dealt with and
considered with clear findings that "there is nothing on record to show
that any findings and/or reasons have been given by the Council,
while interpreting these regulations. No opportunity was given to
the Petitioners to put up their case. The action, therefore, was in
consonance with the various norms and regulations of AICTE. (para
dgm 40 wp-4586.2015-3.8.15.sxw
17). Depriving the Petitioners to file Appeals before the Appellate
Authority is also specifically dealt with in paragraph No.17.
Considering the scope of Writ jurisdiction and interference in the
decision of such expert body have been specifically dealt with in
paragraphs 22 and 24.
31 AICTE, therefore, before passing any order and taking any
decision, as done in the present matters, ought to have taken note of
the specific findings given and ought to have interpreted the clauses
and decided the issues separately and individually by giving hearing at
all the stages, instead of passing such order at the eleventh hour and
again denying the right of Appeal to the Petitioners, apart from non-
following the time table so fixed, which ought to have been
commenced in the month of December itself. Admittedly, initiation
therefore, definitely gives time and opportunity to the Petitioners and
such institutions to put up their case with sufficient and reasonable
time to challenge the same in Appeal also. Having overlooked and not
followed the same schedule, apart from principle of natural justice,
this is a clear breach of their own norms and the orders so passed by
the Supreme Court and in clear breach of reasoned decision given by
dgm 41 wp-4586.2015-3.8.15.sxw
this Court after hearing AICTE in Mahatma Education Society's Pillai's
Institute of Information Technology, Engineering, Media Studies &
Research (Supra). This Court, in last year, specifically dealt with the
aspect of passing order by the person one who hears.
The role and the approach of State Government/DTE only for academic
year 2015-16-
32 The DTE has no role to play in the procedure so
prescribed, when the Petitioner and/or such institution seeks
extension of approval. The DTE officers only facilitate the Centralize
Admission Process. Therefore, the role of the State and the DTE, is
restricted. The handbook so read nowhere provides any role of DTE,
except the initial stages so recorded in the schedule by the Supreme
Court in Parshvanath.
33 The role of the State Government, in view of AICTE
supremacy is limited. Once AICTE grants the approval/sanction,
university affiliation is necessary to admit student/s and/or to run the
courses. In this year, 2015-16 the State has contested and made
supportive arguments with AICTE - opposed the prayers of the
dgm 42 wp-4586.2015-3.8.15.sxw
Petitioners' Institution. Having once dealt with AICTE, all the
contentions, the submission of the State on same grounds, are not
acceptable. The contentions of State are also liable to be rejected.
The Judgments so referred by the State Counsel, so far as the settled
law is concerned, need no elaboration. The ratio needs to be
extended, subject to considering the facts and circumstances of the
respective case. We are dealing with these cases in the background so
recorded.
The cases cited by the Respondents are also distinguishable on facts and
circumstances:-
a) Shri Morvi (supra) - The submission is made that it is the
case of withdrawal of affiliation/recognition as the inspection teams
found several deficiencies, including inadequacy of space, under-
qualified teachers and institutions not having its own land and
buildings. This was a case of de-recognition of institution and
irregular/illegal admissions. We are not concerned with the situation
as admittedly, the AICTE/Respondents have been granting permission
since long and this time only reduced number of seats and/or added
new deficiencies of faculty and/or cadre ratio. The reason for
fluctuation on these deficiencies, ought to have noted, specifically
dgm 43 wp-4586.2015-3.8.15.sxw
when handbook itself provides 18 months to bring the situation stable.
These are every year problems of all the institutions in Maharashtra.
b) Order in Civil Appeal No.4349/2004 by Supreme Court
dated 18/02/2009 by R.V. Raveendran J. - All India Council for
Technical Education v. Surinder Kumar Dhawan (supra) - It is
observed that without any prior statutory and/or affiliation or
assessment, granting approval for a new course or programme by the
Court by overlooking the expert body like AICTE's function, is
unacceptable. The contentions are not in view of the earlier orders
passed by this Court and the facts and circumstances of the present
case.
c) Adarsh Shiksha Mahavidyalaya (supra) - This was a case
under AICTE Act. The observation that insistence of various
compliances of conditions in the statute cannot overlooked, need no
further elaboration as it is settled. However, facts and circumstances
and actual compliances and/or no compliances and/or nature of
objections, need to be tested and considered by the Court, if
supporting materials are on record. We are not concerned, in the
dgm 44 wp-4586.2015-3.8.15.sxw
present case, about the declaration of results of the unauthorized
institutions and/or further study.
d) Khalapur Taluka Shikshan Prasarak (supra) - This was a
gross case of inadequate faculty ratio/cadre and the appointment of
faculties were on ad hoc basis. As recorded, in the present case, apart
from earlier orders, Respondents' own defaults and/or non-application
of mind to the explanation so given and without assigning the reasons,
rejected the claim/case of the Petitioner though infrastructure and
facilities have been available. The Court, under Article 226, is
required to consider the case on its own merits.
e) G.H.R. Education Foundation Society, (supra)- This was a
case where institutions, without any affiliation, admitted the students
for un-affiliated courses, but ultimately the Court permitted the
students to appear for the examination. The facts are distinct and
distinguishable.
f) Sopan Maruti Thopte (supra) - This was a case of
demolition of unauthorized construction where debated issue was the
dgm 45 wp-4586.2015-3.8.15.sxw
scope of personal hearing. In view of Supreme Court judgment read,
referred and relied and for the reasons so recorded, in the present
case and in view of the settled principle of natural justice, this
judgment is of no assistance to the Respondents.
g) The Secretary, A.P. Social Welfare-Residential Educational
Institutions (supra )- In this case, the principle of natural justice was
discussed to the extent that the complaint of violation cannot be
sustained unless prejudice is established and further prior show cause
notice not called for terminating appointment secured on
compassionate ground by playing fraud of these principles, are not in
dispute. However, in the present matter, for the reasons already
recorded and so also the prejudice so shown and as there is no case of
any fraud, this judgment is also of no assistance to the Respondents.
h) Suresh Koshy George (supra)- This was a case of mal
practice in examinations. The issue was about show cause notice
before taking any action. The law that the Court shall quash and set
aside the order after following procedure established by law in fact
supports the case of the Petitioner.
dgm 46 wp-4586.2015-3.8.15.sxw
i) Sunil Kumar Banerjee (supra)- This was a case of taking
disciplinary action without following the requirement, unless
prejudice established. This is also of no assistance to the Respondents,
in view of settled position of law as declared by the Supreme Court in
favour judgments referring to the power and authority of such
supreme body and the requirement of hearing at every stages.
(Swamy Devi Dayal Hospital & Dental College (supra) ].
j) Pradyat Kumar Bose (supra)- This was a case, where the
question was whether the Chief Justice passed the dismissal order,
without consulting Public Service Commission even though he
deputed responsible and competent person, to prepare a report by
conducting an inquiry. The facts and circumstances are
distinguishable in view of the specific provisions of Articles 229, 311
and 320. This judgment, therefore, is of no assistance to the
Respondents to deny the relief so claimed in view of earlier judgments
passed by this Court, based upon the principle "The person who hears
must pass the order".
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DTE Report:-
34 So far as the State Government's submission through
affidavit so placed on record referring to report dated 14.03.2014
based upon a complaint, followed by the surprise inspection by the
Joint Director (Technical Education), Regional Office, Mumbai, itself.
The Respondent/State, are fully aware that the Division Bench of this
Court by judgments dated 14/07/2014 and 27/08/2014, considering
the position and/or similar objections and allowed the Petitioners
and/or such other Petitions, as were based upon the complaints so
referred, and as the AICTE refused to grant approval so prayed by the
respective Petitioners last year also. The issues with regard to the
running of college/institution in one campus, the land requirement,
no occupation certificate, lease agreement, deficiencies of 0.3 acre
land for degree and diploma engineering college, leave and licence
agreement, CIDCO approval not provided for development plan, total
built up area and occupation certificate and pendency of O.C. Issue
and it's follow up as was in progress had been noted and dealt with.
The situation/facts and the issues again mentioned and referred by
the Expert Visit Committee's (EVC) inspection 25.03.2015 and
specifically
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(i) Engineering College has occupancy certificate for 3 floors
only.
(ii) Occupancy Certificate for 4th & 5th Floor is yet to be received.
(iii) Two colleges are running on same land (Plot No.46) but in
different buildings.
(iv) There is a deviation (Balcony) in original building plan
approved by CIDCO on dt. 16/10/2007.
(v) Cadre ration with reference to professor cadre is not
maintained.
(vi) Assistant Professor cadre ration is not maintained.
35 The explanation so given on earlier occasion and on this
occasion also referring to above objections and the stated deficiencies
in the EVC report itself shows arbitrariness of Respondents and
prejudged attitude and without assigning any contra reasons,
mechanically passed the impugned orders. The submissions,
therefore, of the Petitioner that the whole action of Respondents is
unjust, contrary to the judgments so passed, apart from the provision
so prescribed and specifically by not giving reasons and not
considering the interpretation so placed on record by the Petitioner
along with the supporting documents, thereby have acted arbitrarily,
discriminatory by not applying mind to the case and record, and to
just to prejudice the matter, so that being an expert body, they can
pass any order and the Court should not interfere with the said
decision, are acceptable. This is the case where the action/decision of
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the body is contrary to law, apart from non-compliance of the
procedure so prescribed, therefore, a case is made out to interfere
with the decisions being discriminatory, arbitrary and nothing but
misuse of power. There is no point even remanding the matter for
reconsideration in view of the actions to initiate and the final
decisions so taken on last date, as recorded. The State Government's
submission, therefore, supporting the AICTE's action in the
background, for the first time, as there was no such objection raised
last year, in similarly placed circumstances also shows predetermined
attitude to pass order for consideration other than law.
36 The Supreme Court in Swamy Devi Dayal Hospital and
Dental College (Supra), though not granted reliefs in view of typical
facts, has reiterated the basic similar provisions of Medical and Dental
College for new courses, referring to Section 10-A of the Dentists Act,
1948, while granting the hearing at appropriate stages, apart from the
elements of natural justice has observed that:-
"22.2. It contemplates grant of opportunity of being
heard at two stages. First stage would be at the level of
DCI after the scheme is submitted to DCI under Sub-
section (2) of Section 10-A of the Act. Once it is found by
DCI that all the parameters for granting permission are
met, it recommends the grant of approval of the scheme
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to the Central Government. In case a Scheme is found to
be deficient, Sub-section (3) (a) of Section 10-A of the
Act casts an obligation on the part of the DCI to give a
reasonable opportunity for making a written
representation and also to rectify the deficiencies, if any,
specified by the DCI. Second stage of adherence to the
principles of natural justice is provided at the level of
Central Government at the time when it has to take final
decision, after the receipt of the recommendation sent by
DCI. This requirement of hearing is stipulated in proviso
to Sub-section (4) of Section 1--A, in the event the
Central Government is proposing to disapprove the
scheme.
22.3. The expression "opportunity of being heard"
occurring in this proviso would mean that the material
that goes against the applicant and is to be taken into
consideration, is to be supplied to the applicant within
an opportunity to make representation. For this purpose
either the report of DCI itself can be supplied or at least
the deficiencies pointed out in the report have to be
communicated by the Central Government to the
applicant with an opportunity to furnish its comments
thereupon. At that stage while giving its reply, if the
applicant claims personal hearing, such a personal
hearing should also be accorded.
23. As in the present case, since no such opportunity of
being heard, the requirement of proviso to sub-section
(4) of Section 10-A of the Act, was not afforded to the
Petitioner, the decision dated 30-3-2013 of the Central
Government warrants to be set aside on this ground
alone."
37 In the present case, there are various breaches committed
at every stage, which are against their own rules and elements of
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natural justice. However, in Swamy (Supra) no permission granted
for the academic year 2013-14 for new courses, as session already
started on 15 July 2013. The necessary admissions were already
given in colleges. The decision was given on 27 August 2013 by the
Supreme Court. These are institutions, which are providing technical
education since many years. Strikingly, the requisite approval has
been granted also, but reduced the seats, the reduction is illegal and
arbitrary. In the present case, apart from earlier judgments and the
explanation given, the old deficiencies are treated again as new and
reduced the seats/intake capacity. We have by interim order, already
listed the colleges on the website. The students must have acted
accordingly. The last counseling is over on 27 July 2015, pending the
Petition. Therefore, as case is made out for the reasons so recorded,
we are inclined to grant the final order, as prayed, but subject to
additional conditions.
38 Furthermore, in the case in hand, inspite of earlier
judgments, the Respondents not acted promptly, timely and
overlooked the specific observations about the deficiencies and the
Petitioners explanation, but as noted, granted approval also but only
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reduced the seat illegally, contrary to their rules and guidelines, apart
from breach of natural justice. Therefore, the major deficiencies itself,
are not in existence. The explanation for deficiencies about cadre and
faculties so given, need to be dealt with, as there are removable
deficiencies. The whole action of the Respondents in this case is
arbitrary, discriminatory, in violation of own rules/guidelines, apart
from the principles of natural justice, therefore, liable to be quashed
and set aside, being illegal and bad in law. The consequential order,
therefore is to allow the Petition as prayed, however, on certain
conditions, in the interest of all. The case of no deficiencies of major
nature, as made out, the illegal rejection/reduction therefore, we are
inclined to pass order as prayed.
Faculty-qualified Staff-Deficiencies in Students/Teacher ratio-Cadre
39 After going through the impugned order and the
respective deficiencies and the explanation so provided, we are also of
the view that there is no shortage of any faculty. There is no
deficiency in student/teacher ratio. The Petitioners have maintained
the cadre ratio as required by the University. The Petitioners have
sufficient and qualified staff. The procedure of recruitment has
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already initiated in order to appoint qualified staff. The draft
advertisement has been approved by the University and various other
paper advertisements have been published. The Committee has been
constituted for the interview and the interview are already scheduled
on respective dates. The same is supported by additional affidavit
dated 15.07.2015. The statement is also made that the Petitioners are
paying salaries as per Sixth Pay Commission.
After hearing the learned counsel appearing for the
parties, including the learned counsel for the University and after
going through the provisions referring to appointment of faculty and
the qualified staff, there are various consistent and regular problems
for retaining the same qualified staff and/or faculty permanently. This
ratio also always changes because of various circumstances as the staff
and/or faculty themselves resign and/or leave the job. The
Government reservation policy and the requisite advertisement and to
maintain the reservation is every year problem of the area. The
Petitioners and/or such institutions are required to maintain and
follow the reservation policy, as well as, the University Rules/
Regulations for appointment of qualified staff. The submission is
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made by the Senior counsel referring to other Government run
Engineering Colleges that faculty, as well as, staff ratio is quite low
and not upto the mark. That may not be the reason for the Petitioners
not to provide adequate and requisite staff and/or faculties, but that
is definitely a point which required to be noted from the point of view
of AICTE and/or from the point of view of State Government, one who
insists for such compliances from the Petitioners and/or such other
institutions. They have even passed the impugned order by
overlooking the practical difficulties and without considering the
reason for shortage of faculty and qualified staff, when they inspected
the premises/institution. The Respondents, have acted mechanically
and passed the unreasoned orders by overlooking the earlier orders by
this Court and the explanation/clarification so issued by the
Petitioners referring to individual deficiencies so referred above.
Land area deficiencies
41 The deficiencies with regard to the land area requirement
was also the issue of last year. The statement is made and as recorded
that there is sufficient land earmarked for the Petitioners' Engineering
College i.e. 2.5 acres of land. So far as the Lease Deed execution is
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concerned, a Registered Lease Deed has been furnished. The same is
part of additional affidavit dated 6.7.2015 filed by the Petitioners in
the matter.
Rain Water Harvesting:-
42 The rain water harvesting deficiency has been raised for
the first time by the Competent Authority of Respondent No.1. EVC
and/or SCC, at no earlier point of time pointed out the said deficiency.
The statement is made that necessary and requisite steps will be
taken, but the fact that this deficiency raised for the first time by the
Authority also cannot be overlooked.
43 The issues, even if so raised for the first time, revolving
around the cadre and faculties, ought to have been considered in view
of their own provisions of the Handbook by giving opportunity and
hearing. These are every year recurring and fluctuating issues. There
was "no zero deficiency" on the date of passing of impugned order, is
also the submission. When it is a mass problem of the area and as it
requires certain formalities to be completed even by the Universities
and/or authorities, after taking due timely steps by the Petitioners or
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institutions, and specifically when rule itself provides reasonable time
to complete the procedure and remove deficiencies, these actions were
uncalled for. The issue of non-fulfillment of faculty, student ratio,
qualification, pay-scales, if any, need to be considered from the point
of view of the respective years requirement. The 18 months period so
prescribed to fulfill the vacancies, or to remove the deficiencies, just
cannot be overlooked by the Respondents. In view of above, these
deficiencies ought not to have been the foundation to deny the
approval so claimed by the Petitioners without giving timely hearing
and the reasons for this year also. This, in no way, read and mean
that the Petitioners should not remove the deficiencies in respect of
cadre and/or facilities and/or related aspects. Therefore, we are
inclined to direct the Petitioners to take steps even with regard to the
deficiencies, if any, about the cadre and/or faculties and/or related
aspects, as early as, possible and the concerned authorities and the
Respondents to deal with the same by giving the opportunity of
hearing and by passing reasoned order within the prescribed period,
so that the students should not suffer. The impugned action of
reduction of seats, therefore, on this ground, apart from the
institutions, is nothing but depriving the students, who have opted
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and/or desire to have college of their locality and of their choice,
specifically when the institution has been imparting the technical
education since so many years.
44 Taking overall view of the matter as the Respondents
themselves failed to comply with the guideline, dates and their own
rules and deliberately passed the unreasoned order on last cut-off date
of grant of extension of approval, we are inclined to pass the final
order as done by this Court in the last year and as passed by the
various Courts including Hon'ble Supreme Court, specifically in view
of casual and arbitrary manner in which by overlooking the
Judgments and not decided the issues with reasons, the Respondents
have taken unsustainable decisions.
45 Therefore, in view of above reasons, this is not the case
where the matter required to be remanded for re-consideration before
the same authority, who have in prejudice mind and by pre-judging
the issue, by overlooking the judgments so passed by this Court,
passed the same order, this year also. The order/action therefore, is
illegal, impermissible and liable to be quashed and set aside, that
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would result into granting the permission. In the present facts and
circumstances and in view of the earlier orders which we have passed,
we are inclined to grant reliefs in this year also as prayed by the
Petitioners.
Conclusion-
46 In view of the discussion made in the foregoing paras, we
record our conclusion as to the issues raised in the petition as under:-
(i)
Considering the over all facts of the case, rival contentions
and decision taken by AICTE to reduce the intake capacity of
petitioner-Institution, is not sustainable in law for the reason that the
decision is not based upon the on application of mind, overall
assessment and nature of deficiencies and same is found to be
perverse and arbitrary.
(ii) We are of the view that, under the facts and circumstances
of the case such decision could not have been reasonably taken by
body of experts as that of AICTE in exercise of its discretion as over all
deficiencies were not of substantial in nature and have no correlation
with over all impact over standard of education and main objective to
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be achieved by AICTE in exercise of its powers as a regulating
authority.
(iii) The exercise of powers u/s 226 of Constitution of India, as
against the decision as that of AICTE, the High Court is not expected
normally to interfere unless the decision of such expert body is found
to be arbitrary, perverse and based upon extraneous circumstances or
consideration and such decision could not have been reasonably taken
by such body of experts in exercise of its discretion.
(iv) In the instant case, we are of the view that the decision
taken by AICTE i.e. the expert body, is without application of mind
and could not have been taken looking to the nature of deficiencies,
which according to us, otherwise curable in nature and not affect the
high standard of education to be maintained.
(v) So far as the contention raised in the petition about the
principle of natural justice has not been followed and hearing is
expected at all stages of decision making by AICTE, we are of the view
that, in this regard no straitjacket formula can be laid down. The
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aspect of adherence of principles of natural justice needs to be
examined depending upon the facts and circumstances of each case.
In absence of the mandatory requirement laid down in the procedure
prescribed making it obligatory on the part of the decision making
authority to strictly adhere the principles of natural justice, the
observance of such principle depends upon facts and circumstances of
individual case. However, we are of the view that, in the process of
decision making, if any, order to be passed against the interest of any
individual or institution, then before passing such order normally such
persons or the institution must be given an opportunity to explain its
stand as to the accusation made or adverse material to be relied
against them. The adherence of principles of natural justice not
always to be inferred in the sense that, a personal hearing must be
given by an authority concerned to a person against whom the order
to be passed. Opportunity to put up written submissions and the
documents, if any, in support of contention/defence of the person to
dispel those allegations or material normally to be treated as sufficient
compliance of the adherence of the principles of natural justice. So
also, the over all prejudice caused to the person on account of decision
in absence of hearing to such person also to be taken into
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consideration in case based on non-adherence of principles of natural
justice. In case serious miscarriage of justice has resulted due to non-
adherence of such principle, then only, such action of the authority
may be interfered in exercise of writ jurisdiction.
(vi) When a decision making authority as that of body of
expert takes the decision then such decision must be supported with
some reasons though not in detail.
(vii) In the process of grant of permissions to start technical and
professional course or to increase, reduce the intake capacity,
extension of approval, cancellation of approval and all other related
issues, the powers of decision making authority solely vest with AICTE
and the State Government has no role to play in such matters except
to communicate its view or referring the complaints or outcome of any
enquiry/investigation conducted by the State Government or its
technical department to the authorities of the AICTE for taking
appropriate decision in the matter at their level. The State
Government have no independent power either to sanction, grant
permission to technical course, increase or decrease the intake
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capacity and all such incidental matters.
(viii) So far as the submissions advanced that the person who
has personally heard the matter must decide the same, we are of the
view that in ordinary course such principle to be observed but,
observance of such principle depends upon the facts and
circumstances of each case and cannot be treated to be observed in
each and every case.
47 In view of above, the following order:-
ORDER
a) Writ Petition is allowed in terms of prayer clause
(a).
b) Interim order passed by this Court on 6 May 2015,
is confirmed.
c) The Respondents are directed to consider the
representation/case of the Petitioners, specifically
on the issue of cadre and faculty and related aspects
by giving opportunity and hearing and pass the
reasoned order, at the earliest.
d) The Respondent-University is directed that in order
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to avoid the delay in appointments of teaching
faculty in the institution like the Petitioners, the
proposals received for approval of draft
advertisement, roaster, nomination of the subject
experts, nomination of nominee of the Vice
Chancellor and approval of the candidates selected
through duly constituted Selection Committee, such
proposals be decided in expeditious and time bound
manner so as to avoid deficiencies in respect of the
same being shown by AICTE in the proposals of
such institution for extension of approval.
e) The Petitioners to take steps to remove the
deficiencies, even if any, as early as possible.
f) Writ Petition is accordingly allowed.
g) Rule made absolute accordingly.
h) There shall be no order as to costs.
(V.L. Achliya, J.) ( Anoop V. Mohta, J.)
