Bombay High Court
Shri Sant Tukaram Shikshan ... vs State Of Maharashtra And Ors on 21 December, 2021
Bench: R.D. Dhanuka, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6544 OF 2021
Sant Tukaram Shikshan Sanstha .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
---
Mr.V.P. Sawant, Senior Advocate a/w Mr.Nitin S.Dhumal for the
petitioner.
Mrs.P.N. Diwan, AGP for the respondent nos.1 to 3-State.
Mr.Ajit Anekar a/w Ms.Urvi Vaidya i/by Auris Legal for the respondent
no.7.
Mr.Prathamesh Bhargude a/w Mr.Sumit Sonare for the respondent no.8.
Mr.Nagesh Chavan for the respondent no.9.
Mr.Prasad R. Shinde, under Secretary, Higher & Technical Education
Department, Mantralaya.
---
CORAM : R.D. DHANUKA AND
R.N.LADDHA, JJ.
DATE : 21st December 2021
P.C.:-
. Mr.Sawant, learned senior counsel for the petitioner seeks
permission to delete the name of the respondent nos.4 & 5 from the
cause title of the petition.
2. Leave to amend is granted to the petitioner to add additional
prayer in view of the statement made by the contesting respondents that
the application of the petitioner for starting new degree college is rejected
by the State Government by the same order which was passed on 15 th
March 2018. Amendment to be carried out forthwith. Re-verification is
dispensed with. Amendment also to be carried out in the copies supplied
to the respondents.
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3. Rule. Learned AGP waives service for the respondent nos.1
to 3-State. Mr.Anekar, learned counsel waives service for the respondent
no.7. Mr.Bhargude, learned counsel waives service for the respondent
no.8. Mr.Chavan, learned counsel waives service for the respondent no.9.
The respondent no.6 is absent in this proceedings and also before this
Court in Writ Petition No.4805 of 2018. By consent of parties, petition is
heard finally.
4. By this petition filed under Article 226 of the Constitution of
India, the petitioner has impugned the Government Resolution dated
28th February 2018 to the extent of granting its permission/letter of intent
(LOI) to start new colleges to the respondent nos.5, 6 & 7 from the
academic year 2018-19 as illegal, arbitrary and unconstitutional. The
petitioner seeks further direction to reconsider the proposals for starting
new degree college at Taluka Haveli (excluding Municipal Corporation
limits) from the academic year 2018-19 of the petitioner society as well
as the respondent nos.5, 6 & 7.
5. The petitioner had applied for starting new Degree College
(Arts, Commerce and Science) at Wade Bolhai, Taluka Haveli from the
academic year 2016-17. State Government however, has not granted its
permission by issuing LOA in favour of the petitioner. Pursuant to the
modified public notification dated 6 th December 2017 issued by the
University, the petitioner society has submitted a detailed proposal to
the respondent no.4 University. The respondent no.4 University has
recommended the name of the petitioner on 4 th January 2018 and
submitted a report. According to the petitioner, the name of the petitioner
was recommended by the University to the respondent State Government
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on 18th January 2018 at Serial No.4.
6. Application of the petitioner was also considered along with
the application of the respondent nos.4 to 9 by the State Government.
On 28th February 2018, the State Government passed an order granting
LOI in favour of the respondent nos.5 to 7. Applications filed by the
Jagruti Foundation, Pune and Sanjay Modak Education Society who
are the respondent nos.8 and 9 also came to be rejected on the ground
that LOI was already granted in favour of the respondent nos.5 to 7.
The respondent nos.8 & 9 herein accordingly filed Writ Petition Nos.4805
of 2018 and 4059 of 2018 respectively.
7. During the pendency of these two petitions, the Division
bench of this Court passed an order on 31 st March 2021 thereby
deferring the hearing of these petitions so that the Joint Director/
Secretary of Higher and Technical Education, Mantralaya can inform the
Court as to when fresh hearing would be given to the rival contenders
and an order after assessing comparative merit would be passed and in
that regard, the fresh scrutiny would be restricted. This Court observed
that those who have been disqualified per se, and have accepted the
disqualification, would not be eligible for reconsideration. This Court
further directed that those colleges/institutions, whose applications
have been not considered with the reasoning that these private
respondents had already been given Letter of Intent, would be the ones
to whom the scrutiny could be restricted. However, this Court requested
the Joint Director/Secretary to inform this Court on this aspect.
8. It appears that despite the said order dated 31 st March 2021.
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the Joint Director proposed to hear all the parties who had applied for
various permissions including the respondent nos.5 to 9 and also the
petitioner.
9. The petitioner was issued a notice by the Directorate of
Education on 10th June 2021 directing the petitioner to remain present
on 14th June 2021 with all requisite documents. By another notice
dated 14th June 2021, the Directorate of Education postponed the
scheduled meeting due to some technical problems.
10. It is the case of the petitioner that the petitioner did not
receive any further notice from the Directorate of Education. On 21 st
September 2021, the petitioner filed this writ petition for quashing and
setting aside the Government Resolution dated 28 th February 2018 and
for an order and direction to reconsider the proposals for starting new
degree college at Taluka Haveli.
11. In the meanwhile, the Writ Petition Nos.4805 of 2018 and
4059 of 2018 filed by the respondent nos.8 & 9 respectively came to
be heard by this Court. The Writ Petition No.6544 of 2021 filed by the
petitioner herein though was filed on 30th August 2021 however was not
on board. None of the parties pointed out that this petition is pending.
12. By a judgment dated 2nd December 2021, this Court
quashed and set aside the order dated 15 th March 2018 refusing to grant
Letter of Intent in favour of the petitioner for starting new college and
granting Letter of Intent in favour of the respondent nos.5 to 7 for the
roster point of Haveli and restored their applications before the State
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Government. This Court directed to reconsider the applications of the
the respondent nos.5 to 9 herein afresh in accordance with the law and
after following the provisions of the Maharashtra Public Universities
Act, 2016 shall pass a fresh order within four weeks from the date of
communication of the said order without being influenced by the
impugned order/communication dated 15th March 2018 which is
quashed and set aside by recording reasons. In so far as the respondent
no.6 is concerned, the respondent no.6 was absent though served.
13. Mr.Sawant, learned senior counsel for the petitioner submits
that the application filed by his client also was rejected by the State
Government on the same ground. He, on instructions, states that his client
was not aware of the pending Writ Petition Nos.4805 of 2018 and 4059
of 2018. He submits that his client came to know about the penency of
these two writ petitions and interim order dated 17th April 2018 passed
by the Division Bench of this Court only when the notice dated 10 th June
2021 came to be served upon the petitioner with a request to remain
present before the Directorate of Education.
14. Learned counsel for the contesting respondents pointed out
that the application of the petitioner was also rejected by the State
Government on the similar ground that LOI was already issued in
favour of the respondent nos.5 to 7. Learned senior counsel submits that
the petitioner is similarly situated to the case of the respondent nos.8 and
9 in whose favour, this Court quashed and set aside the impugned order
and remanding back the matter for reconsideration on its own merits.
15. This petition is vehemently opposed by the learned counsel
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for the respondent nos.7, 8 and 9 on the ground that the petitioner was
fully aware of the proceedings filed by the respondent nos.8 and 9.
16. It is submitted that the petitioner has filed this proceeding
only after waiting for the outcome of the order that would have been
passed in furtherance of the order dated 31 st March 2021 passed by this
Court.
17. Learned counsel submitted that there is gross unexplained
delay on the part of the petitioner in filing this petition. Thus no
opportunity should be granted to the petitioner for reconsideration of its
case along with the application of the respondent nos.5 to 7 and 8 to
9 before the State Government.
18. It is submitted that if the case of the petitioner is directed to
be considered along with the case of the respondent nos.5 to 9, at this
stage, their interest would be seriously prejudiced.
19. It is not in dispute that the petitioner was also one of the
applicants for seeking permission to start new college based on the
recommendation made by the University. The application of the petitioner
was also considered by the State Government along with the application
of the respondent nos.5 to 9. The reasons recorded by the State
Government while rejecting the application of the petitioner and the
respondent nos.8 and 9 and while issuing LOI in favour of the
respondent nos.5 to 7 are identical. When this Court finally disposed
of these two writ petitions by judgment dated 2 nd December 2021, this
writ petition which was already filed by the petitioners was pending.
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20. We are inclined to accept the statement of Mr.Sawant,
learned senior counsel for the petitioner that the petitioner came to know
for the first time about the pendency of these two petitions only after the
notice dated 10th June 2021 came to be served upon the petitioner by
the Directorate of Education with a request to remain present before the
Directorate of Education.
21. Be that as it may, the rights of the petitioner also are restored
for reconsideration by virtue of the final order passed by this Court on 2 nd
December 2021. Even at the earlier stage, when this Court passed
interim order, this Court has proposed to disqualify only those
applications who had accepted those disqualification.
22. The petitioner filed this petition only upon receipt of the
notice from the Directorate of Education. In our view, there is thus no
delay in filing the writ petition. Since the petitioner is similarly situated
to the respondent nos.8 and 9 and also to the respondent nos.5 to 7
whose applications are restored to file before the State Government, no
prejudice would be caused to the respondents.
23. We are of the view that the petitioner shall also be given an
opportunity to participate while reconsidering the application filed by the
respondent nos.5 to 9.
24. Ms.Diwan, learned AGP for State, on instructions, states that
they leave it to the discretion of the Court to pass an appropriate order in
the facts and circumstances of this case. Statement is accepted. Learned
AGP further, on instructions, states that no final order has been passed
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till date pursuant to the said order dated 2nd December 2021 passed by
this Court directing the State Government to reconsider the applications
of the petitioner and the respondent nos.5 to 9. Statement is accepted.
25. We accordingly pass the following order:-
(i) The impugned order dated 15th March 2018 refusing to permit the
petitioner to start new degree college (Arts, Commerce and Science) at
Wade Bolhai, Taluka Haveli is quashed and set aside.
(ii) Application of the petitioner is also restored to file before the State
Government and to be considered along with the applications of the
respondent nos.5 to 9 on its own merits and in accordance with law after
following provisions of the Maharashtra Public Universities Act, 2016
without being influenced by the impugned order/communication dated
15th March 2018.
(iii) The order shall be passed by the State Government on or before
10th January 2022.
(iv) The prayer clause (a) of the petition is allowed on the basis of
which the impugned order dated 15th March 2018 came be passed.
(v) The order that would be passed by the State Government shall be
communicated to the petitioner within one week from the date of
passing such order.
(vi) The State Government shall not issue LOI in favour of the
successful parties for a period of two weeks from the date of
communication of the order.
(vii) The State Government shall pass a reasoned order while
considering the application of the petitioner also.
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26. Writ petition is allowed in aforesaid terms. Rule is made
absolute. No order as to costs. Parties to act on the authenticated copy of
this order.
R.N.LADDHA, J R.D. DHANUKA, J.
