Bombay High Court
Shri Vile Parle Kelvani Mandal ... vs The State Of Maharashtra And ... on 21 June, 2017
Bench: Anoop V. Mohta
WP 6259/17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6259/2017
Shri Vile Parle Kelvani Mandal,
a Society registered under the
Societies Registration Act, 1860 and
also a Public Charitable Trust
registered under the Bombay Public
Trust Act, 1950 having its office
at Shri Bhaidas Maganlal Sabhagriha
Building, North South Road No.1,
Juhu Scheme, Vile Parle (West),
Mumbai - 400056, through its
Constituted Attorney
Mr.Rajgopal Bhandari.
...Petitioner..
Versus
1] The State of Maharashtra,
through Principal Secretary,
Higher & Technical Education
Department, 4th Floor, Mantralaya Annex,
Madam Cama Road, Nariman Point,
Mumbai-400032.
2] Directorate of Technical Education,
Maharashtra State, having its office at
Samangaon Road, Nashik.
3] All India Council for Technical
Education, through its Western
Regional Office at 2nd Floor,
Industrial Assurance Building,
Veer Nariman Road, Opp.Churchgate
Railway Station, Mumbai - 400020.
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4] North Maharashtra University
incorporated under the Maharashtra
University Act, 1994 having its
office at Umavi Nagar,
Jalgaon - 425001.
Through its Registrar.
5]
Dr.Babasaheb Ambedkar Technological
University, incorporated under the
Maharashtra Vidyavihar, Lonera,
Dist.Raigad - 401403.
Through its Registrar.
...Respondents...
.....
Shri P.M. Shah, Senior Advocate i/b Shri S.R. Vakil and
Smt.Manoramam Mohanty, Advocates for petitioner.
Shri A.V. Deshmukh, AGP for respondent nos.1 & 2.
Shri S.V. Advant, Advocate for respondent no.3.
Shri Y.B. Bolkar, Advocate for respondent no.4.
Shri A.R. Borulkar, Advocate for respondent no.5.
.....
CORAM: ANOOP V. MOHTA &
SUNIL K. KOTWAL, JJ.
DATE: 21.06.2017
ORAL JUDGMENT (Per Anoop V. Mohta, J.) :
1] Heard learned counsel appearing for parties.
Rule made returnable forthwith. With the consent,
petition is taken for final hearing and disposal.
2] Petitioner is an unaided linguistic minority
educational institution running various new
institutions / colleges at different places since long.
It applied to start a pharmacy college at Dhule for
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academic year 2017-18 on 31.10.2016 under then existing
provision of Section 81 of the Maharashtra University
Act, 1994. Respondent no.4, however, was not considering
the case and as there was delay in starting new college,
it made an application to respondent no.5 on 25.1.2017 to
start degree course in pharmacy for the same year.
Respondent no.5, Dr.Babasaheb Ambedkar Technological
University (the University), is constituted under the
provisions of Dr.Babasaheb Ambedkar Technological
University Act, 2014 (the Act). This Act is applicable
to the Districts so prescribed in Schedule II of Section
4(5), which includes petitioner's place. The importance
of affiliation is recognized for all the purposes. To
start any institution and/or college, a requisite
affiliation / recognition from the concerned authorities
including the State and the concerned University, is the
mandatory requirement. The University, with whom the
application was filed in January, 2017, failed to take
any steps and not yet granted the affiliation.
3] As required, petitioner on 4.2.2017 filed an
application with supporting documents, to All India
Council for Technical Education (AICTE) for starting a
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new degree course in pharmacy. It is governed under All
India Technical Education Act, 1987 (for short AICTE
Act). This is the prime body to control the norms and
standards of common development of "technical education"
and related aspects at all levels throughout the country.
It also requires to regulate and ensure proper
maintenance of norms and standards in technical education
system. The AICTE Act itself provides for the procedure
to grant approval for starting new technical institutions
and for introduction of new courses including variation
in intake capacity in consultation with the agencies
concerned.
4] The dominance of AICTE and its related agencies
has been recognized by the Supreme Court in State of
Tamilnadu & another v. Adhiyaman Educational & Research
Institute & others (JT 1995 (3) SC 136); Parshvanath
Charitable Trust v. All India Council For Technical
Education (2013) 3 SCC 385. The judgment of Division
Bench of this Court in Dr.D.Y. Patil Pratishthan's
Padmashree Dr.D.Y. Patil Polytechnic, Kolhapur v.
Directorate of Technical Education, Mumbai & others (2014
(5) Mh.L.J., 590), in which one of us (Anoop V. Mohta,
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J.) is a party, has reiterated the same. In Dr.D.Y.
Patil (supra) the observations are based upon the
judgments of the Supreme Court, in following paragraph
nos.14, 15 and 21 as under:-
"14. A Division Bench of this Court (Nagpur
Bench) in Shri Shivaji Education Society,
Amravati & Anr. vs. Maharashtra University of
Health Sciences & Ors. (2012(1) Mh.L.J.799) after
taking note of various Supreme Court Judgments
including Jaya Gokul Education Trust vs.
Commissioner & Secretary to Government Higher
Education Deptt., Thiruvananthapuram and Another
(AIR (2000) 5 SC 231) held that "once the
permission has been granted by Indian Medical
Council to start the particular post graduate
course, the further resolution by the State
Government as well as the affiliation by the
University would be a mere formality."
15. Here in the present case, AICTE is the
final authority who has granted the permission to
open the new colleges and to start the technical
new colleges/courses with given intake capacity.
21. ..... ..... ..... ..... There is nothing on
record to show that the State Government at any
point of time had challenged even the
decision/approval given by the AICTE to the
Petitioner's new colleges and/or new courses in
question. The AICTE approval, therefore, in our
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view, binds even the Respondent State so far as
permission to start new colleges/new courses.
This in no way means that the State Government
has no control and/or supervisory power over such
Institution in the State of Maharashtra. All
parties, in our view, are bound by the
decision/sanction so granted by the AICTE unless
challenged and/or set aside. The Respondent
State, in our view, just cannot withhold their
permission to the Petitioner to start the
institution/course/increase intake capacity as
approved by AICTE. They have no choice but to
issue appropriate Government Resolution to grant
permission to the institutions accordingly
forthwith, in view of the time constraints."
5] In Shri Shivaji Education Society, Amravati &
another v. Maharashtra University of Health Sciences &
others in Writ Petition No.3888/2011 decided on 4.10.2011
at Nagpur Bench of this Court, it is observed in
paragraph no.13 as under:-
"13. In view of decision of the Supreme Court in
case of Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Educational
and Charitable Trust, V/s. State of Tamil Nadu
and others (supra) the provisions of section 10A
of the Indian Medical Council Act override the
provisions of section 64 and 65 to the extent
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they are contrary. As has been held in Sant
Dnyaneshwar V/s. State of Maharashtra 2006 (9)
S.C.1, the provisions of sections 64 and 65 will
have to be held as not applicable in the present
case. That means, once the permission has been
granted by Indian Medical Council to start the
particular post graduate course, the further
resolution by the State Government as well as the
affiliation by the University would be a mere
formality and would not debar the college in
admitting the students." (emphasis added)
6] Learned counsel appearing for AICTE points out
that the issue of supremacy of Pharmacy Council and/or of
the AICTE is pending in Supreme Court, but without
prejudice to this, it is further pointed out by learned
counsel appearing for AICTE that the Apex Court in Orissa
Technical Colleges Association v. AICTE & others, in
Civil Appeal No.6938/2015, on 6.1.2016 has observed as
under:-
"We see no reason to decline that prayer. It is
evident from the orders earlier made that this
Court has permitted AICTE to process all
applications of technical institutions for
extension of approval, variation of intake, start
of new courses, establishment of new technical
institutions etc. in accordance with the AICTE
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Approval Process Handbook published by the AICTE
from year to year. That being so, AICTE can in
our opinion be left free to continue publishing
the Approval Process Handbook from year to year
in future also till orders to the contrary are
passed by this Court. We accordingly allow this
application and direct that AICTE shall be free
to publish for the Session 2016-2017 and the
academic sessions following thereafter the
requisite AICTE Approval Process Handbook as in
the past and regulate the subject matter relating
to technical institutions as mentioned above
including MBA/management courses in accordance
with the said hand-book." (emphasis added)
7] In a Full Bench decision of this Court in
Mahatma Gandhi Missions Institute, Aurangabad v. State of
Maharashtra & others (2008(5) Mh.L.J., 913, it is held
that opinion of AICTE is of utmost importance and shall
take precedence over the views of the State as well as
that of the University.
8] Similar application was also filed by the
petitioner to Joint Director of Technical Education for
imparting degree course in engineering. On 11.2.2017,
reminder was sent to respondent - University to grant
affiliation so also on 13.3.2017, but in vain.
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Respondent no.2 - Director of Technical Education on
16.2.2017 forwarded no deficiency report to its regional
office and thereby granted approval for starting new
college to petitioner.
9] As there was no response from respondent nos.4 &
5 at the relevant time, therefore, a writ petition was
filed on 4.5.2017 for seeking direction for affiliation
on or before 4.6.2017. Petitioner, therefore, again made
a representation pursuant to order passed by this Court
on 8.5.2017. Respondent no.2 mentioned petitioner's name
in the list of new institutions approved by AICTE at
Sr.No.2079 subject to certain conditions which petitioner
- institution is required to follow, however, put certain
restrictions referring to the perspective plan for two /
three courses only. Petitioner's prayer / application is
always based upon foundation of approval / sanction
granted by AICTE dated 30.4.2017. There is nothing on
record to suggest any major deficiencies, which go to the
root to refuse and/or withhold any such requisite
affiliation / permission required from the State and/or
by University.
10] Petitioner having complied with all the
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requisite formalities apart from placing AICTE approval
and the completion of all the formalities including
deposit of amount so required. Yet as there was no
action from the University, therefore, it was required to
move the High Court for interim order to avoid the
complications to start in time new college for academic
year 2017-18.
11] This Court, after considering above judgments
and undisputed position on record, directed by order
dated 6.6.2017 as under:
"[i] The following names of colleges, approved
courses and approved intake capacity on the
website i.e. www.dte.org.in of the Directorate of
Technical Education, Mumbai, shall be displayed
immediately by the respondents-
W.P.No. Name of college Approved course Approved intake capacity
6259/17 Shri Vile Parle
Institute of
Pharmacy, Dhule.
6281/17 Shri Vile Parle a] Computer
Institute of b] Information
c] Electrical
d] Mechanical
Engineering
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[ii] This is without prejudice to the rights
and contentions of the parties. There is no
question of claiming any equity and the same will
be subject to further orders.
[iii] It is made clear that while listing on
the website, the concerned respondents to mention
against the names of the respective institutions
that the listing of their names is subject to
further orders in pending writ petitions.
[iv] The petitioner in both these petitions
undertake to make necessary payment to the
concerned respondents within 48 hours, if not
already paid.
[v] Respondent no.2 shall take steps so that
the name of the petitioner - institution be added
at the earliest enabling the students / parents to
apply for the respective seats within the
prescribed period.
[vi] Respondent nos.4 and 5 shall decide the
representation / application so filed by the
petitioner seeking affiliation as early as
possible in view of the order already passed on
4.5.2017 and even otherwise before 17.6.2017.
[vii] The respondents to file affidavit in
reply, if not already filed, within two weeks.
[viii] S.O. to 19.6.2017 for final disposal."
12] It is informed by the learned counsel for
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parties that above interim order is complied with only by
the State and again not by the University. We are,
therefore, proceeding further to pass final order.
13] Respondent - State and respondent no.5 and
respondent no.4, filed their respective reply. We are
not dealing with reply of respondent no.4 as the basic
affiliation is now sought from respondent no.5. The only
fact is required to be noted is that petitioner did apply
to respondent no.4 in October, 2016, as required for the
affiliation. However, in view of the provisions of the
Act of 2014, respondent no.5 is the concerned University,
we are dealing with their reply for deciding the prayers
so made.
14] In the affidavit in reply filed by respondent
no.5 for the first time, though represented from time to
time since January, 2017, never communicated in writing
any adverse order to petitioner. Strikingly, for the
first time it is stated that affiliation even, if any,
would be and required to be read for the academic year
2018-19 thereby rejected the affiliation so sought since
January, 2017. This approach, in our view, is
unacceptable and contrary to the basic provisions and
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obligations which are required to be complied with and/or
to be followed by the University while dealing with such
applications as per provisions of University Act and
specifically Sections 4 and 110 and Schedule to the Act.
The submission that petitioner ought to have applied
before October, 2016, in the present facts and
circumstances, is not acceptable as respondent in the
Court only for the first time expressed views by
overlooking the judgments in Tamilnadu & another v.
Adhiyaman Educational & Research Institute & others
(supra); Parshvanath Charitable Trust v. All India
Council For Technical Education (supra) and Dr.D.Y.
Patil Pratishthan's Padmashree Dr.D.Y. Patil Polytechnic,
Kolhapur v. Directorate of Technical Education, Mumbai &
others (supra), so referred above, whereby it is
reiterated that after the AICTE approval, the affiliation
and/or approval and/or sanction from the University
and/or such concerned authority is merely a formality.
The timely action in education matters is a must. The
delayed action takes away and/or affects the rights not
only of petitioner - institution, who wants to establish
the college at or within the area, but also of the
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interested students / parents. Therefore, it is in the
interest of public at large that the timely action should
have been initiated by the University.
15] Having once obtained the requisite permission
from the AICTE and applied in time by taking all
necessary steps and as there are no defects and/or major
deficiencies, we see no reason for the University to
delay the proceedings and not to grant affiliation so
sought for. The rejection so communicated for the first
time through reply, in our view, is, therefore,
unsustainable and not in accordance with law so laid down
by the Court from time to time in this regard.
16] We are in no way accepting the case of
respondent nos.2 and 4 that they have authority over the
decision / approval granted by AICTE to start such
college with requisite intake approved for the year 2017-
18. All the concerned respondents are always at liberty
to have inspection and verification to see that the
institutions have infrastructure and complied with all
the formalities and facilities for imparting the
technical education to the concerned students. We also
permit the respondents to take inspection, if necessary,
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with immediate effect after giving due notice to all
concerned parties.
17] The aspect of the State perspective plan and/or
related objection including the objection that AICTE
permission / approval itself was dependent upon the
requisite affiliation from the University should not
be the reason to overlook the judgments passed by the
Supreme Court and the High Courts giving importance to
AICTE authority and its approval.
18] The issue so raised of perspective plan and the
so called endorsement made by the State Government in
view of the judgments, so referred and quoted above, is
unsustainable. The submission that as the University has
not granted affiliation, therefore, petitioner should not
be permitted to start new college, as prayed, in this
academic year 2017-18, is also unacceptable. The AICTE
approval / sanction, in our view, requires to be accepted
by the respondent - State as well as by the University
unless major defects / deficiencies, after due inspection
and enquiry, noted and which petitioner could not and/or
is unable to remove. The respondents are permitted to
take inspection within 10 days and do the needful
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accordingly.
19] Therefore, taking over all view of the matter,
a case is made out by petitioner to issue direction to
grant the affiliation for the academic year 2017-18 to
start from June / July, 2017. We are, therefore,
inclined to allow this writ petition only to the
following extent.
O R D E R
a] Respondent nos.2 and 5 are directed to grant
affiliation / permission to petitioner to start college
for the academic year 2017-18, as approved / sanctioned
by the AICTE by order dated 30.4.2017, forthwith.
b] Interim order passed by this Court dated
6.6.2017 is confirmed.
c] It is made clear that petitioner needs to comply
with all the formalities, including payment of fees as
early as possible.
d] Respondent no.5 University to have complete
inspection within 10 days. Deficiencies, if any, need
to be removed at the earliest before commencement of
session of this year by the petitioner institution.
e] Above order is made subject to final order of
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the Supreme Court as it is stated that the issue of
supremacy of AICTE over Pharmacy Council and/or Council
of Architecture, is pending.
f] As the judgment / order is dictated in open
Court in presence of all parties / learned counsel, the
concerned respondents need not wait for the certified
copy of judgment / order. They should act forthwith, as
ordered.
g] Rule is made absolute accordingly. No costs.
(SUNIL K. KOTWAL, J.) (ANOOP V. MOHTA, J.)
ndk/c216173.doc
