Bombay High Court
Mr. Rajendra G. Kulkarni And Ors vs The State Of Maharashtra Through ... on 12 January, 2018
Bench: B.R. Gavai
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BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5363 OF 2015
1) Mr. Rajendra G. Kulkarni )
Age: 52 years, Adult, Residing at )
R/2-204, Shreeram Residency, )
Behind Panvelkar Plaza Station Rd, )
Ambernath (East) - 421501. )
)
2) Mr. I. Sircar, )
Residing at Plot No.63, Sulabh Society, )
Vadavali Section, Ambernath (East) )
-421501. )
)
3) Mr. V.Z. Rane )
Residing at C-543, Sec. 25, )
Room No.1085, Behind Venus, )
Ulhasnagar. )
)
4) Mrs. V.S. Nadagauda, )
Residing at B/404-405, Yugandhar )
Sadan, Manapada Road, )
Dombivali (East). )
)
5) Mrs A.A. Waghmare, )
Residing at L7/104 Lokkedar CHS, )
JSD Road, Cement Company, )
Mulund (West) )
)
6) Mrs B.C. Atre, )
Residing at A-1, 203, Lakecity Towers, )
Near Tip Top Plaza, Thane (West) )
)
7) Mrs Neha R. Korde, )
Residing at Flat No.103, Atlantis Tower, )
Kashish Park, LBS Road, Near Mulund )
Check Naka, Thane (West) )
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)
8) Mrs. S. R. Lachhani, )
Residing at 202, Attam Dham, )
Plot No. B-52, Chopra Court, Ulhasnagar)
)
9) Mrs. Beenarani S. Karutharan, )
Residing at Flat No.103, Atlantis Tower )
Kashish Park, LBS Road, Near Mulund )
Check Naka, Thane (West) )
)
10) Mrs. Shilpa Ingoley )
Residing at A26/1103, Happy Valley )
Manapada, Near Tikujan Wadi, )
Thane (West) )
)
11) Mr. D.K. Pawar, )
Residing at C2/402 Neeyog Apartments, )
Ghatkopar (East) - 400075 )
)
12) Mrs Sandhya S. Bhavsar, )
Residing at BK A-116/232, )
Suryadarshan, Samata Nagar -1, )
Kurla Camp, Ulhasnagar. )
)
13) Miss K.B. Choudhary, )
Residing at 101 'A' Wing, )
Sai Baug Sane Wadi, Badlapur (West) )
)
14) Mr. Deepak G. Joshi, )
Adult, Residing at 64-A Bansilal Bldg., )
2nd floor, Room No.6 Girgaum Road )
Opera House - 400004 )
)
15) Mrs Jalaja Nair, )
Residing at 21/4 Sai Deepmala, )
Dindayal Road, Dombivali (West), )
)
16) Mrs N.R. Chavan )
Residing at 260/2, Kranti Nagar )
st
1 Floor, Room No.21, )
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Mumbai 400 004. )
)
17) Mrs. J. P. Mirani, )
Residing at A-702 Arrona CHS, )
HDFC Bank Kopar Colony, )
Thane (East). )
)
18) Mrs N.P. Lalwani, )
Residing at 203, Saraswati Sagar )
Apts, Near Jhulelal Mandir, )
Ulhasnagar. )
)
19) Mrs Tanaya Matkar, )
Residing at B-205, Yugandhar, )
Sudama, Opp. Nana Nani Park, )
Manpada Road, Dombivali )
421201 )
)
20) Mr. Raju B. Sachdev, )
Residing at 201, Kailash Apts, )
O.T. Section, Ulhasnagar. )
)
21) Miss Kiran C. Chandnani, )
Residing at 102, Saraswati Sagar, )
Near Shivneri Hospital, )
Ulhasnagar. )
)
22) Mr. Gajanan V. Rane, )
Residing at Block No.1409, )
Room No. 8, Maratha Section, )
Near Aashirwad Hospital, )
Ulhasnagar. )
)
23) Mr. Lalchand R. Vishwakarma)
Residing at 302, Kasturi Apts, )
Manwle Pada Rd. Virar (East) )
24) Mr. Jokhuprasad D. Sharma )
Residing at Ayodhya Nagar, )
Nr. Bk. No.1060, O.T. Section Rd. )
Ulhasnagar. )
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)
25) Mr. Rajaram G. Batwal )
Residing at Plot No.8, )
MHADA Colony, Near Mahalaxmi )
Nagar, Behind Kailashnagar )
Ambernath (East) )
)
26) Mr. Gangaram Ramdulare, )
Residing at Ayodhya Nagar )
near Bk. No.1060, O.T. Section Rd )
Ulhasnagar. )
)
27) Mr. Sanjay N. Pawar, )
Residing at House No.1701, )
Shrikrishna Nagar, Vadawali )
Sector, Nr. Jai Shankar Building, )
Ambernath (East). )
)
28) Mr. Ramesh R. Varma, )
Residing at Ayodhya Nagar, )
Near Bk. No.1060, O.T. Section )
Rd. Ulhasnagar. )
)
29) Mr. Munshi Deshraj, )
Residing at Next to Bk. No.1132 )
Follower Lane, Imli Pada, )
Ulhasnagar. )
)
30) Mr. Jitendra Kudia, )
Residing at Bk. No.1101, )
Kawaram Colony, O.T. Section, )
Opp. Navjivan Bank, Ulhasnagar )
)
31) Mr. Ramdev Varma, )
Residing at Ayodhya Nagar, )
Near Bk. No.1060, O.T. Section )
Road, Ulhasnagar )
)
32) Mr. Manohar Chawla, )
Residing at Bk. No.1027, Room )
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No.13, Sector 23, Ulhasnagar. )
)
33) Mr. Mohan Shivalingappa )
Mahant, )
Residing at A/204, Jai Shiv )
Shambhu CHS Ltd., Shiv Shrushti )
Complex, Mohane, Kalyan-421102) .....Petitioners.
V/s
1) The State of Maharashtra )
Through the Secretary, )
Higher Technical Education and )
Employment Department, )
Mantralaya, Mumbai 400 032 )
)
2) The Director of Technical )
Education, 3, Mahapalika Marg, )
Mumbai - 400 001. )
)
3) All India Council for Technical )
Education (A.I.C.T.E.) )
Through the Member Secretary, )
Represented by the Regional )
Officer (Western Region), India )
Assurance Building, Second Floor, )
Opp. Churchgate Station, )
Mumbai - 400 020 )
)
4) Maharashtra State Board of )
Technical Education, Through its )
Director, 49, Khenwadi, Ali Awar )
Jung Marg, Bandra (East) )
Mumbai - 400 051. )
)
5) Hyderabad (Sind) National )
Collegiate Board, Through its )
President Kishinchand Chellaram )
College Bldg., Vidyasagar Principal)
K. M. Kundani Chowk, 124 )
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Dinshaw Wachha Road, )
Churchgate, Mumbai - 400020 )
)
6) Hyderabad (Sind) National )
Collegiate Board, Through its )
Director & Secretary Kishinchand )
Chellaram College Bldg., )
Vidyasagar Principal K.M. Kundani)
Chowk, 124, Dinshaw Wachha )
Road, Churchgate, Mumbai- )
400 20. )
)
10) Smt. S.H. Mansukhani )
Institute of Technology (SHMIT), )
Through its Principal )
Opp. Railway Station, Ulhasnagar, )
Thane - 421 003. ) ...... Respondents.
-----
Mr. Sureskh S. Pakale with Mr. Saurabh S. Pakale, Ms. Manisha
Devkar, Advocates for the Petitioner Nos. 1 to 8 and for Applicant in
Civil Application Nos.1633/2017, 1634/2017, 1914/2017.
Mr. T.V.K. Raman, Advocate for Petitioner No.9.
Mr. C.R. Sadashivan, Advocate for Applicant in Civil Application
No.1913 of 2017.
Mrs Rupali M. Shinde, AGP for Respondent Nos. 1 and 2.
Mr. Mihir Desai, Senior Counsel, a/w Ms. Meenal J. Chandanani i/b
Mr. J.S. Chandanani, for Respondent Nos. 6 and 7.
Mr. R.V. Govilkar with Ms. Shaba N. Khan, Advocates for Respondent
No.4.
Mr. Abhijeet A Joshi, Advocate for Respondent No. 3.
----
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CORAM: B. R. GAVAI &
SANDEEP K. SHINDE, JJ.
DATE: 12th JANUARY, 2018
ORAL JUDGMENT: (Per B. R. Gavai, J.)
1] This Petition takes exception to the communication dated
24/02/2015 addressed by Respondent No.4 - MSBTE to Respondent
No.3 - AICTE and Government Resolution dated 25/05/2015 insofar
as it applies to Respondent No.7 - Institute under the Management of
Respondent Nos. 5 and 6.
2] Facts, in brief, giving rise to the present Petition, are as under:-
3] All the Petitioners in this Petition are employed on different
posts with Respondent No.7 - Institution. Respondent No.7 is a
Polytechnic, imparting Diploma Courses in Information Technology,
Electronics and Telecommunication Engineering and Computer
Technology. It appears that since 2014, Respondent Nos. 5 and 6, on
account of certain difficulties faced by them, were intending to close
Respondent No.7 - Institute. Some of the Petitioners, apprehending
such closure, had approached this Court by way of Writ Petition
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No.2792 of 2014. It is the case of the Petitioners that, in the said
proceedings, a statement was made on behalf of Respondent Nos. 5
and 6 that services of the Petitioners would not be terminated, as
approval for closure was not granted. It further appears that, an
attempt was made on behalf of the Petitioners on one hand and
Respondent Nos. 5, 6 and 7 on the other hand to explore the
possibility of settlement. However, it appears that nothing could be
worked out. During the pendency of the Petition, Respondent No.5
made an application on 28/1/2015 to Respondent No.4, seeking its no
objection for Progressive (Phasewise) Closure of Respondent No.7 -
Institute. Respondent No.4, vide its communication dated
24/02/2015 addressed to Respondent No.3 granted its no objection
for phasewise closure of the Institute. It appears that Respondent
No.3 has granted its approval on 30/04/2015 for closure of the
Institute. Consequently, vide Government Resolution dated
25/05/2015, Respondent No.1 granted permission to Respondent Nos.
5 and 6 to close the Courses of Diploma in Computer Engineering,
Electronics, Telecommunication, and Information Technology. Being
aggrieved thereby, the present Petition.
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4] Mr. Pakale, learned Counsel appearing on behalf of the
Petitioners submits that, no objection granted by Respondent No.4 to
Respondent No.3 and permission granted by Respondent No.1 are
totally in contravention with the provisions of the Maharashtra State
Board of Technical Education Act, 1997 (For short "the said Act"). He
submits that, a detailed procedure is prescribed under the provisions
of the said Act, which undisputedly, has not been followed and
therefore the impugned orders are liable to be quashed and set aside.
Learned Counsel further submits that, Respondent No 3 - AICTE is
also required to follow certain procedure for granting its approval, as
is provided in Approval Process Hand-Book. It is submitted that, even
the said procedure is not followed.
5] Mr. Mihir Desai, learned Senior Counsel appearing on behalf of
Respondent Nos. 5 to 7 submits that, firstly, procedure as prescribed
under Section 35 of the said Act, would not be applicable to the said
Respondents. He submits that, the said procedure would be applicable
only to the Polytechnics, which are receiving grant-in-aid from the
State Government. He submits that, Respondent Nos. 5 and 6 are
minority Institutions. It is therefore submitted that, Respondent No.7
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which is run by Respondent Nos. 5 and 6, which are minority
Institutions and which are not receiving grant-in-aid, would not be
covered by the provisions of the said Act. Learned Senior Counsel
submits that, the undertaking, which was given by the said
Respondents was on the basis that they would receive permission
from AICTE for starting Community College and would receive grant-
in-aid for its functioning. It is however submitted that, since the
Government changed its decision and it was not possible to start
Community College, the undertaking would not be binding on the said
Respondents.
6] Mr. Desai, learned Senior Counsel further submits that
Respondent Nos. 5 to 7 had given cogent reasons as to why closure
was found unavoidable. It is submitted that, on account of spiral
requirements of funds for making payments of salary and increments
to be paid to the employees and the fact that revenue of Respondent
No.7 was lesser than its expenditure which was required to be
incurred, Respondent Nos. 5 and 6 had taken a considered decision to
close Respondent No.7 - Institute in a phasewise manner. Learned
Senior Counsel further submits that Section 35, insofar as it permits
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minority Institutions to be taken over either by Government or to be
transferred to some other management is concerned, would be
violative of the rights available to minority Institutions under Article
30 of the Constitution of India.
7] Mr. Desai, learned Senior Counsel, further submits that, as a
matter of fact, the Institution has been closed almost for a period of
two years and, as such, any adverse order by this Court at this stage
would have very serious consequences.
8] We find that, the present Petition requires to be decided on a
pure question of law. Facts in the present case are undisputed. It has
to be noted, that the legislature found it necessary to provide for
establishment of a State Board, to regulate matters pertaining to
Diploma Level Technical Education in the State of Maharashtra. It was
further found that, certain other matters connected therewith should
also be regulated and a Statutory Board for discharging certain
functions should be constituted. Clause (b) of Section 2 of the said
Act, defines "Board", which means, the Maharashtra State Board of
Technical Education established under section 3. Clause (f) of Section
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2, defines "Government", which means the Government of
Maharashtra. Clause (h) of Section 2, defines "Polytechnic or
Institution", which means an Institution imparting Diploma or Post-
Diploma or Post-Graduate Diploma or Advanced Diploma in
Engineering or Technology or Management Education recognized by
the Board under the said Act.
9] Chapter-II of the said Act deals with constitution of the Board. It
has to be noted that the Board consists of various Ex-officio Members,
including Director of Technical Education, Director of Maharashtra
State Board of Technical Education, other Senior Officers of the State
Government and certain nominated members are to be from the
category of Principal from Government Engineering Colleges in the
State, from the category of the Principals and Heads of Institutes from
Government or aided and unaided Polytechnics, from the category of
teachers, again from Government or aided and unaided Polytechnics,
from the professional bodies and from the associations of Industries.
10] Chapter-III of the said Act deals with powers and duties of the
Governing Council and Board. Section 23 of the said Act deals with
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duties of the Board. Perusal of Section 26 would reveal that for
opening an Institute, application has to be first made to the Board,
which is required to be scrutinized by the Board and thereafter
forwarded to the Government. Under sub-section (6) of Section 26,
there is a direct bar for entertaining an application for opening any
Institution by the Government. Section 27 of the said Act deals with
affiliation to the institution. Decision of the Board in this regard has
been given finality. The other provisions of the Act deals with
continuation of affiliation, extension of affiliation, grant of
permanent affiliation and recognition etc.
11] Section 4 of the said Act empowers the Board to contract, to
acquire, hold and dispose of property, both movable and immovable
and to do all things necessary for the purpose of the Act.
12] Perusal of Section 32 would reveal that, if Institution fails to
comply with the conditions of affiliation as provided under the statute,
the Board is empowered to issue notice to the management to show
cause as to why privileges conferred on the Institution by affiliation
should not be withdrawn. The provisions of the said section would
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reveal that, after following the principles of natural justice, the Board
is empowered to take action for withdrawal or modification of such
privileges. The Board is required to make recommendations to the
Government for action to be taken in that behalf and the Government
is mandated to proceed to implement the recommendations of the
Board.
13] It could thus be seen that, important role has been provided by
the statute to Respondent No.4 - Board and right from grant of
permission to open a new College and affiliation, Respondent No. 4-
Board plays a vital role.
14] Insofar as the contention of Mr. Desai, learned Counsel for the
Petitioners, that the said Act is not applicable to the minority
Institutions is concerned, we find that the said submission is without
substance. The provisions of clause (h) of Section 2 of the said Act,
as discussed hereinabove, would apply to all Institutions imparting
Diploma or Post-Diploma or Post-Graduate Diploma or Advanced
Diploma in Engineering or Technology or Management Education
recognized by the Board under the said Act. Undisputedly,
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Respondent No.7 is affiliated to Respondent No.4. The contention that
the said Act is not applicable to the unaided Institutions, in our view,
is also contrary to the legislative intent. Perusal of Section 5 would
reveal that, so far as nomination of members on the Board is
concerned, representation is to be granted not only to the employees
of Government or Government aided Polytechnics, but also to the
employees of unaided Polytechnics. In our considered view therefore
the legislative intent is clear that the said Act would be applicable to
all the Institutes which are affiliated to Respondent No.4, whether they
are run by Government or they are aided or unaided.
15] So far as the contention of Mr. Desai, learned Senior Counsel for
the Petitioner, that the provisions of Section 35 insofar as they are
made applicable to minority institutions being violative of Article 30
of the Constitution of India is concerned, such a challenge cannot be
heard at the behest of the Respondents in a Petition filed on behalf of
the employees. If it is the contention of Respondent Nos. 5 to 7 that,
any of the provisions of the said Act are ultra vires to any of their
rights guaranteed under the Constitution, they are not precluded from
challenging the vires of the said provisions. However, so long as the
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said provisions remain on the statute book, Respondent Nos. 5 to 7
are bound to follow the same.
16] In the light of this background, firstly, we will have to consider
the most important provisions of the said Act, which have a bearing on
the lis in the present Petition. It will be relevant to refer to Section 35
of the said Act, which reads thus:-
"35. (1) No management of an institution
shall be allowed to close down the
institution without prior permission of the
Government.
(2) The management desires of closing
down the institution shall apply to the Board
on or before the [last day of April of the
preceding year], stating fully the grounds for
closure, and pointing out the assets in the
form of building and equipments, their
original costs, the prevailing market value
and the grants so for received by it from the
Government or from public funding
agencies.
(3) On receipt of such an application,
the Board shall cause to make enquiries as it
may deem fit, to assess and determine
whether the institution be permitted to
effect the closure. The Board may, examine
whether the closure should be avoided by
providing necessary assistance or taking over
of the Institute by the Government or
transferring it to another management.
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(4) If the Board decides to recommend
the closure, it shall prepare and submit to
the Government, a report on the extent of
damages or compensation to be recovered
from the management and whether the
assets created utilising the funds provided
by the Government or other public funding
agencies, be transferred to the Government
or other management, and the payment of
compensation to the teachers and the staff
retrenched.
(5) If the Board has recommended the
closure of the affiliated Institution the
Government may issue the order for closure.
(6) If the Government decides to take
over the institution or transfer the same to
another management the procedure to be
followed shall be such as may be prescribed
by the Government.
(7) The procedure to effect the
closure shall be in phases, so as to ensure
that the students already admitted to the
institution are not affected, and that the first
year shall be closed first and no new
admissions shall be effected. The procedure
to phase out the closure shall be such as may
be prescribed by the Government."
It could thus be seen that, no management of the Institution shall be
allowed to close down the Institution without prior permission of the
Government. It could thus be clearly seen that legislative intent is very
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clear that no management can close down the Institution without
there being prior approval from the State Government.
17] Sub-section (2) of Section 35 of the said Act requires the
management, which desires to close down the Institution, to apply to
the Board on or before the last day of April of the preceding year,
stating fully the grounds for closure, and pointing out the assets in the
form of building and equipments, their original costs, the prevailing
market value and the grants so far received by it from the Government
or from public funding agencies.
18] No doubt that Respondent Nos. 5 and 6 have made an
application under the provisions of sub-section (2) of Section 35 on
28/1/2015. Respondent Nos. 5 and 6 have also pointed out
difficulties, which are found by them for running Respondent No.7 -
Institute. It could thus be seen that, so far as requirement of sub-
section (2) of Section 35 is concerned, the same has been partly
complied with by Respondent Nos. 5 and 6. However, the
requirement with regard to pointing out the assets in the form of
building and equipments, their original costs, the prevailing market
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value and grants so far received by them from the Government or from
public funding agencies, has not been complied with by Respondent
Nos. 5 and 6. It is the contention of Mr. Desai that, the said provision
is not applicable to Respondent Nos. 5 and 6. We are not inclined to
accept the said contention. If the said Respondents are not receiving
any grant-in-aid from the Government, they could very well mention
in the application that they are not receiving any grant-in-aid.
However, data regarding public funding agencies is also required to be
mentioned in the application made under sub-section (2) of Section
35, which has not been done by the said Respondents.
19] The most important section is sub-section (3) of Section 35,
which mandates that Respondent No. 4 - Board, on receipt of the
application, shall cause to make enquiries as it deems fit to assess and
determine whether the Institution be permitted to effect the closure. It
is also required to examine, whether the closure should be avoided by
providing necessary assistance by Government or taking over of the
Institute by the Government or transferring it to another management.
It could thus be seen that, the legislative intent appears to be that, as
far as possible, closure of running Institute should be avoided. Firstly,
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upon enquiry, the Board is required to go into subjective satisfaction as
to whether closure can be avoided by taking assistance from the
Government. Secondly, it is required to arrive at a subjective
satisfaction, whether Institute should be taken over by the Government
and, thirdly, it is also required to examine as to whether Institute can
be transferred to another management.
20] After complying with the procedure prescribed under sub-section
(3) of Section 35, if the Board decides to recommend the closure, it is
required to prepare and submit a report on the extent of damages or
compensation to be recovered from the management and whether the
assets created, utilising the funds provided by the Government or
other public funding agencies, be transferred to the Government or
other management, and the payment of compensation to the teachers
and the staff retrenched.
21] At the cost of repetition, we may state that the words which are
used in the statute are not restricted to the funds provided by the
Government. However, the scope is widened by using the words
"other public funding agencies". Again, the legislative intent appears
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to be that, such of the Institutions which are established by utilizing
the funds from public funding agencies, should not be permitted to
enrich themselves but their properties be utilized for productive
purposes. Respondent No.4 - Board is also mandated to assess the
payment of compensation to be made to teachers and the staff to be
retrenched. Sub-section (5) of Section 35 requires that, if the Board
has recommended the closure of the affiliated Institution, the
Government may issue the order for closure.
22] Sub-section (6) of Section 35 requires that, if the Government
decides to take over the Institution or transfer the same to another
management the procedure to be followed shall be such as may be
prescribed by the Government. Sub-section (7) of Section 35 provides
that, while permitting the closure in phasewise manner, procedure
should be such that the students already admitted to the Institution
are not affected, and that the first year shall be closed first and no new
admissions shall be effected.
23] As already discussed hereinabove, after an application for
closure is made by the Institution, an important duty is cast upon
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Respondent No. 4 - Board. The legislative intent is that, Respondent
No.4 - Board should first make an attempt to see to it as to whether
closure can be avoided by providing Government assistance. If it is
not possible, it has to apply its mind and decide as to whether the
Government can take over the Institution and, thirdly, it has to
subjectively decide as to whether the Institution can be transferred to
another management. Respondent No.4 - Board is also required to
prepare a report and point out various aspects as provided in sub-
section (4) of Section 35 of the said Act, including payment of
compensation to be made to the teachers and the staff retrenched.
Sub-section (5) of Section 35, therefore could come into play only
after the procedure prescribed under sub-sections (2) to (4) are
followed by Respondent No. 4 - Board.
24] In this background, let's examine as to what has been done by
Respondent No.4 - Board in the present matter.
"We are forwarding herewith the No
Objection Certificate for Phase wise Closure
of Institute (Institute Code - 0112)
Hyderabad Sind National Collegiate Board,
Mumbai, Smt. S. H. Mansukhani Institute of
Technology, Opposite Ulhasnagar Railway
Station, CHM Campus, Ulhasnagar - 421
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003 from the Academic year 2015-16 as per
the prescribed format provided by
A.I.C.T.E.
The undertaking submitted by the
institute mention about starting of
community college and absorption of
Permanent and Eligible teaching and non-
teaching staff of Smt. S. H. Mansukhani
Institute of Technology in this community
college managed by Hyderabad Sind
National Collegiate Board, Mumbai.
Enclosed copy of No Objection
Certificate for phase wise closure of
institute and undertaking by Hyderabad
Sing National Collegiate Board, Mumbai for
further necessary action."
25] It could thus be clearly seen that Respondent No.4 - Board,
without following the mandate as provided in sub-sections (3) and (4)
of Section 35 of the said Act, has acted as a postman of Respondent
Nos. 5 and 6, recommending closure. We have therefore no
hesitation in holding that Respondent No.4 - Board has totally
abdicated its function.
26] Likewise, we find that the impugned Government Resolution
is also unsustainable in law. While taking a decision under sub-section
(5) of Section 35, while dealing with important issue regarding closure
of the Institution, least that is expected of the State Government was
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to give brief reasons supporting its decision. Nothing of that sort has
been done. By one stroke, the impugned Government Notification
notifies various Institutions which have been granted permission to
start the process, so also the Institutions who have been permitted to
close the Courses. We have no hesitation to hold that this has been
done without application of mind and in a most mechanical manner.
27] One another aspect that needs to be taken into consideration is
that, the Petitioners, while making representation to the various
authorities, had also expressed willingness to take over management
of Respondent No.7, either through themselves or their Association viz
Teachers' Association for Non Aided Polytechnics (TAFNAP). We find
that if Respondent No.4 - Board would have followed the procedure as
prescribed under sub-sections (3) and (4) of Section 35, the said
proposal could also have been considered. If Respondent No.4 -
Board would have followed the provisions of sub-sections (3) and (4),
may be, it could have come to a subjective satisfaction that closure
was not necessary if certain Government assistance was provided or
that the Institution could be taken over by the Government or that
Institution could be transferred to other management.
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28] We may gainfully refer to the observations made by Their
Lordships of the Apex Court in the case of Central Coalfields Limited
and another vs. SLL-SML (Joint Venture Consortium) and others 1 in
paras 52 and 53, which read thus:-
"52. There is a wholesome principle that the
Courts have been following for a very long time
and which was articulated in Nazir Ahmad vs.
King Emperor [AIR 1936 PC 253] namely "Where
a power is given to do a certain thing in a certain
way the thing must be done in that way or not at
all. Other methods of performance are
necessarily forbidden." There is no valid reason
to give up this salutary principle or not to apply it
mutatis mutandis to bid documents. This
principle deserves to be applied in contractual
disputes, particularly in commercial contracts or
bids leading up to commercial contracts, where
there is stiff competition. It must follow from the
application of the principle laid down in Nazir
Ahmed that if the employer prescribes a
particular format of the bank guarantee to be
furnished, then a bidder ought to submit the
bank guarantee in that particular format only and
not in any other format. However, as mentioned
above, there is no inflexibility in this regard and
an employer could deviate from the terms of the
bid document but only within the parameters
mentioned above."
"53. Nazir Ahmed has been followed in dozens
of decisions rendered by this Court and by other
constitutional Courts in the country. The Central
1 AIR 2016 SC 3814
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Vigilance Commission has accepted this principle
in a modified form as a guiding principle in its
circular dated 31st December, 2007 wherein it is
mentioned that all organizations ought to evolve
a procedure for acceptance of bank guarantee
that is compatible with the guidelines of banks
and the Reserve Bank of India. One such
requirement is that the bank guarantee should be
in a proper prescribed format and should be
verified verbatim on receipt with the original.
Adherence to this principle of verbatim
verification would not only avoid undue
problems for the employer but would also
virtually eliminate subjectivity on the part of the
employer."
It could thus be seen that the same principle would apply aptly in the
present case viz. where statute requires a particular thing to be done in
a particular manner, it has to be done in that manner alone or not at
all. When statutory requirement, as provided under sub-sections (3)
and (4) of Section 35 require Respondent No.4 - Board to discharge
its duties in a particular manner, it was required to follow the mandate
of the said provisions and comply with the same. That having not
been done, we find that entire proceedings stand vitiated. The
impugned orders are therefore not sustainable in law.
29] In the result, Rule is made absolute in terms of prayer clause (a).
Needless to stay that all consequences shall follow.
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30] In view of disposal of the Petition, all Civil Applications taken
out therein are also disposed of.
31] At this stage, Mr. Desai, learned Senior Counsel appearing on
behalf of Respondent Nos. 5 to 7 requests for stay of the order passed
by this Court for a period of 12 weeks. Mr Pakale, learned Counsel
appearing on behalf of the Petitioners vehemently opposes the prayer.
However, taking into consideration the peculiar facts and
circumstances of the present case, we direct that status quo which was
operating during pendency of the Petition, including payments to be
made to the Petitioners shall continue to operate for a period of six
weeks from today. On the said condition, the effect and operation of
our judgment shall stand stayed for a period of six weeks from today.
(SANDEEP K. SHINDE, J. ) (B. R. GAVAI, J. )
