Bombay High Court
Nanasaheb Babasaheb Dharbale And ... vs The State Of Maharashtra And ... on 23 August, 2023
Bench: Mangesh S. Patil, Abhay S. Waghwase
2023:BHC-AUG:18063-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4978 OF 2022
1) Nanasaheb Babasaheb Dharbale,
Age 35 years, Occ. Service,
R/o. C/o. Dattatray More,
Plot No. 43-44, House No. 15,
Sarvodaya Housing Society,
N-6, CIDCO, Aurangabad.
2) Dr. Aquil Ur Rahim Siddiqui,
Age 56 years, Occ. Service,
R/o. Plot No. 15, Shabistan Housing
Society, Near Ikon Hospital, VIP Road,
Rashidpura, Aurangabad.
3) Ganesh Kaduba Gajare,
Age 40 years, Occ. Service,
R/o. Pushpak Garden,
In front of New Civil Hospital,
Jalna Road, Chikalthana (Airport)
Aurangabad.
4) Ms. Vijayalaxmi Appasaheb Chavan,
Age 35 years, Occ. Service,
R/o. Plot No. 117, Sainagar,
N-6, CIDCO, Aurangabad.
5) Gajanan Nandlal Parikh,
Age 37 years, Occ. Service,
R/o. Gendai, 113/1, Labh Park,
Gurusahani Nagar, CIDCO N-4,
Aurangabad.
6) Mahesh Tanaji Gaikwad,
Age 40 years, Occ. Service,
R/o. C/o. Pawar, Behind Kalpana
Provision Stores, Opp.SBI ATM,
D-Mart Road, Vivekanand Nagar,
N-12, CIDCO, T.V. Centre, Aurangabad.
7) Ashwini Uday Patil,
Age 31 years, Occ. Service,
R/o. "Samarth' 216-A, Bhaktinagar,
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N-1, CIDCO, Aurangabad.
8) Sandeep Subhashchandra Lahoti,
Age 32 years, Occ. Service,
R/o.Flat No. E-404, Kasliwal Marval
(West), Near AGP Public School,
Beed Byepass, Aurangabad.
9) Miss. Snehal Nursing Pawar,
Age 32 years, Occ. Service,
R/o. Flat No. G-62, Sukhada Niwas,
Near Powerhouse N-4, CIDCO,
Aurangabad.
10) Vinayak Laxmanrao Gadhekar,
Age 45 years, Occ. Service,
R/o. Plot No. D-75, Renuka Nagar,
Garkheda Parisar, Aurangabad.
11) Santosh Pandurang Katore,
Age 45 years, Occ. Service,
R/o C-38, Police Colony,
N-7, CIDCO, Aurangabad.
12) Amol Balkrishna Joshi,
Age 35 years, Occ. Service,
R/o. C-60/6, Shivaji Nagar,
Garkheda Parisar, Aurangabad.
13) Abhijeet Sudhakar Pashan
Age 31 years, Occ. Service,
R/o. E-20/11, Sambhaji Colony,
N-6, CIDCO, Aurangabad.
14) Gahininath Vitthalrao Wagh,
Age 41 years, Occ. Service,
R/o. Plot No. 31, Chaudhari Colony,
Chikalthana, Aurangabad.
15) Nita Bharat Daund,
Age 30 years, Occ. Service,
R/o. House No. 5-8-1655,
Chaudhari Colony, Lane No. 3,
Chikalthana, Aurangabad.
16) Hiraman Bhausaheb Kalunke,
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Age 34 years, Occ. Service,
R/o. Plot No. 4/38/55,
Vishranti Nagar, Galli No. 1,
Mukundwadi, Aurangabad.
17) Rushinder Hiraman Wagh,
Age 34 years, Occ. Service,
R/o. Plot No. 111, Survey No.72/2,
Rajnagar, Mukundwai, Aurangabad.
18) Dnyaneshwar Namdeo Aglawe,
Age 29 years, Occ. Service,
R/o. At Post Georai Bk,
Tq. Paithan, Dist. Aurangabad.
19) Raju Bhagaji Pathre,
Age 31 years, Occ. Service,
House No. C-5/3, Jalgaon Road,
N-13, HUDCO, Bharat Nagar,
Aurangabad.
20) Pradip Kaduba Mokasare,
Age 28 years, Occ. Service,
R/o. House No. 51/62, Survey No. 02,
Galli No. 12, Jai Bhawani Nagar,
Aurangabad.
21) Jayram Arjun Borkar,
Age 28 years, Occ. Service,
R/o. C/o. Dahale Subhash
M-2-6-3, N-6, Sinhgad Colony,
Aurangabad. ... Petitioners.
VERSUS
1) The State of Maharashtra,
Through the Principal Secretary
of Technical and Higher Education
Department, Govt. of Maharashtra,
Mantralaya, Annex Building,
Mumbai-400 032.
2) All India Council for Technical Education,
Nelson Mandela Marg, Vasant Kunj,
New Delhi- 110 070,
Through its Chairman/Secretary.
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WP 4978 22.odt
2A) Pharmacy Council of India,
NBCC Centre, 3rd Floor, Plot No. 2,
Community Centre, Maa Anandmai Marg,
Okhla Phase-I (Near Hotel Crown Plaza),
New Delhi-110 020.
3) The Director of Technical Education 3,
Mahapalika Marg, Mumbai.
3A) The Joint Director of Technical Education
Near Polytechnic College, Osmanpura,
Aurangabad.
4) Dr. Babasaheb Ambedkar Marathwada University,
University Campus, Aurangabad,
Through its Registrar.
5) Bhagwqan Shikshan Prasarak Mandal,
Dr. Y.S. Khedkar Marg, N-6, CIDCO,
Aurangabad,
Through its Secretary.
6) Shri. Bhagwan College of Pharmacy,
Dr. Y.S. Khedkar Marg, N-6, CIDCO,
Aurangabad, Through Secretary,
Bhagwan Shikshan Prasarak Mandal. ... Respondents.
...
Advocate for the Petitioners : Mr. Pushkar S. Shendurnikar.
Additional G.P. for the Respondent Nos. 1, 3, 3A : Mrs. M.A. Deshpande.
Advocate for Respondent No. 2 : Mr. C.V. Dharurkar
Advocate for Respondent No. 4 : Mr. K M. Suryawanshi
Advocate for Respondent Nos. 5 & 6 : Mr. Atul M. Karad
Advocate for Resp0ondent No. 2A : Mr. S.B. Deshpande
CORAM : MANGESH S. PATIL &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 19.04.2023
PRONOUNCED ON : 23.08.2023
JUDGMENT : (PER : MANGESH S. PATIL, J.)
Heard. Rule. Rule is made returnable forthwith. At the joint request of
the parties, the matter is heard finally at the stage of admission.
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2. In this petition under Article 226 of the Constitution of India, the
petitioners who are some of the members of the teaching and non-teaching
staff of the respondent No. 6-College of Pharmacy being run by the
respondent No. 5-management (hereinafter management) are challenging
the order passed by the respondent No. 3 who is the Director of Technical
Education (hereinafter DTE) refusing to take over the management of the
respondent No. 6-college under the provisions of Section 3 of the
Maharashtra Educational Institutions (Management) Act, 1976 ( hereinafter
Educational Institutions Act), dated 10.02.2022.
3. Before we proceed to examine the sustainability and legality of the
order under challenge it would be appropriate to narrate the history.
(a) The management is a Trust registered under the Maharashtra Public
Trust Act, 1950 and Societies Registration Act, 1860 which has been running
the respondent No. 6- College of Pharmacy for last around two and half
decades. The petitioner Nos. 1 to 4 and few others filed Writ Petition No.
5150/2013 in this Court seeking benefit of the 6 th Pay Commission. The
writ petition was allowed by this Court on 15.01.2018. The management
challenged that order before the Supreme Court in Special Leave to Appeal
No. 10537/2018. It was dismissed on 09.05.2018. However, a liberty was
granted to the management to seek review of the order in Writ Petition No.
5150/2013. Accordingly Review Application (Stamp) No. 28198/2018 was
filed but it was withdrawn on 06.02.2020. Those petitioners are now
claiming arrears which according to them are Rs. 4,83,22,894.18.
(b) Like the above petitioners, the petitioner Nos. 10 to 19 filed Writ
Petition No. 11259/2017 and petitioner Nos. 5 to 7 and 20 and 21 filed Writ
Petition No. 11343/2019, thereby claiming benefit of the 6 th Pay
Commission. Both these petitions were allowed on 28.08.2019 and
30.01.2020 respectively and the decisions reached finality since the
management did not challenge those orders. According to those petitioners
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the arrears of the pay to which they are entitled to are 2,58,41,722/- and
Rs. 1,17,69,756/- respectively. The management failed to pay these arrears.
(c) On 14.09.2018, the respondent No. 2-All India Council for Technical
Education (hereinafter AICTE) withdrew its approval granted to the
respondent No. 6-College on account of persistent default committed by the
respondent No. 5-college to remove the deficiencies pointed out by the
Expert Visiting Committee which had concluded that the managing society-
institute was not interested in improving the conditions that were prevalent.
The management did not challenge this order.
(d) Some of the staff members preferred Writ Petition No. 12095/2018 and
even some students filed Writ Petition No. 11064/2018 against the AICTE
and the management and at their instance the AICTE was pleased to
withdraw the order whereby it had revoked approval. The standing
appellate committee of the AICTE found that the management had not
bothered to respond to it and recommended on 15.05.2019 to place the
college under 'No Admission' category for the academic year 2019-2020.
(e) Finding that the management was apparently not interested in running
the college, the petitioners filed Writ Petition No. 13358/2019 and prayed
for transfer of the management or to direct the Director of the DTE to
appoint an administrator over the management and the college and for
direction to the authorities to take steps for closure of the college under
Section 121 of the Maharashtra Public Universities Act, 2016 by paying
retrenchment compensation of Rs. 2 Crores to the members of the teaching
staff and Rs. 1 Crore each to the non-teaching staff and to pay regular salary.
(f) Since some of the petitioners were relieved by the management during
pendency of that writ petition, a prayer for quashing of those relieving
orders/letters was also added.
(g) By the order dated 26.11.2021 in above writ petition, this Court
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in detail pointed out the chequered history, the deficiencies and even
commented upon the sorry state of affairs in running the college by the
management and made several observations as to how there existed
circumstances for the DTE to invoke the powers under Section 3 of the
Educational Institutions Act. Pertinently, these observations were made in
the light of the stand that was being taken by the DTE in its affidavit in reply
filed in that petition.
(h) In the light of such observations and the directions of this Court, the
DTE issued show cause notice dated 07.01.2022 to the management and the
Principal of the college calling upon them to show cause why steps under
Section 3(1) of the Educational Institutions Act be not taken. The
management and the college filed their reply. Even the petitioners were
allowed to participate. By the order under challenge the respondent-DTE has
refused to exercise the powers under Section 3 of the Educational
Institutions Act. Hence this petition.
4. The learned advocate Mr. Shendurnikar would narrate us the
aforementioned chequered history and particularly the observations made
by this Court in the order passed while disposing Writ Petition No.
13358/2019. He would point out that after considering the stand of all the
parties and noting the deficiencies and the shortcomings in the matter of
management of the college, this Court had demonstrated as to how it was
imperative for the DTE to exercise the powers under Section 3 of the
Educational Institutions Act. The observations were drastic and were in fact
a fait accompli as far as the existence of the circumstances which are
sufficient for invoking those powers. He would, therefore, submit that the
DTE has blatantly overlooked the observations and has passed the impugned
order. Once this Court had minutely examined the scope and ambit of
Section 3 in the context of the fact situation, the DTE could not have arrived
at a diagonally opposite conclusion. He would submit that if the
aforementioned circumstances are not sufficient enough to exercise the
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power, it would be a dead letter. The whole purpose of providing for such a
measure for taking over the management is inability of the management to
run the educational institution in the public interest. Therefore, the
impugned order refusing to invoke Section 3 is clearly perverse, arbitrary
and capricious and is liable to be quashed and set aside. He would,
therefore, submit that question of applicability of Section 3 was not open to
be decided by the DTE in view of the observations of this Court.
5. The learned A.G.P. would support the order by submitting that when
the college was put in 'No Admission' category by the AICTE, Section 3 of
the Educational Institutions Act could not have been invoked.
6. The learned A.G.P. would further submit that since the college was
placed under 'No Admission' category since the year 2018-2019 only those
students who were admitted prior thereto were allowed to continue for the
subsequent academic years to enable them to conclude the course. However,
there were no fresh admissions after 2018-2019. In the circumstances, the
college was practically closed down. She would submit that unless
appropriate steps are taken by the management and the college for
extension/restoration of approval to the college under the All India Council
For Technical Education Act, 1987 (hereinafter AICTE Act) or the
Maharashtra Public Universities Act, 2016, the college cannot run. She
would then submit that in view of the provision of appeal contemplated
under sub section 4 of Section 3 of the Educational Institutions Act, the
petition is not maintainable. She would, lastly, submit that the whole
purpose and object of taking over management under Section 3 is to run an
educational institution. When for whatever reason it has completely closed
down for all practicable purposes, the provision cannot be invoked.
7. The learned advocate Mr. Karad for the management and the college
would at the outset oppose the petition on the ground that since it is a
matter of running the Pharmacy College under the provisions of the AICTE
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Act and the Pharmacy Act, 1948, which are the Central legislations passed
under entry 66 of list I in the Seventh Schedule of the Constitution of India,
the provisions of Section 3 of the Educational Institutions Act which is a
State legislation will not be applicable. When these central status provide in
detail and make provisions for running inter alia a pharmacy college,
Section 3 of the Educational Institutions Act cannot operate in view of
Article 254 of the Constitution of India. To buttress his submission he would
place reliance on the decisions in the matters of State of Tamil Nadu & Anr.
Etc. Vs. Adhiyaman Educational & Research Institute & Ors; (1995) 4
Supreme Court Cases 104, Rungta Engineering College, Bhilai and another
Vs. Chhattisgarh Swami Vivekanand Technical University and Another;
(2015) 11 Supreme Court Cases 291, and State of Maharashtra Vs. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.; 2006 AIR SCW 2048.
8. Mr. Karad would then advert our attention to the decision of the
Supreme Court in the matter of The Pharmacy Council of India Vs. Dr. S.K.
Toshniwal Educational Trusts Vidarbha Institute of Pharmacy and Ors.;
(2021) 10 SCC 657. He would submit that it has been held that the norms
and regulations set by the Pharmacy Council of India (hereinafter PCI) and
other specified 46 authorities under the Pharmacy Act would have to be
followed by the concerned institutions imparting education in pharmacy,
including norms and regulations in respect of increase or decrease in intake
capacity. He would, therefore, submit that the PCI has been subsequently
added as a respondent No. 2A. Therefore, even the stand of the PCI is
relevant to be considered.
9. Mr. Karad would lastly submit that the AICTE had already withdrawn
approval and only on the request of the staff and students to enable them to
complete studies that the approval was restored by the order of this Court,
but the college was put under 'No Admission' category and therefore the
educational activities have been completely nonexistent. The management
and college does not have permission to run the course either of PCI or
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AICTE after 2018-2019. In spite of strenuous efforts, the management could
not revive the college and the DTE was satisfied that in the circumstances,
powers under Section 3 of the Educational Institutions Act could not have
been invoked.
10. The respondent No. 2A (PCI) has also filed affidavit in reply. It has
referred to the provisions of the Pharmacy Act and demonstrate as to how
the PCI is empowered to regulate the pharmacy education. It mentions that
the college was granted approval for the academic year 2013-2014 for 40
seats of B Pharmacy Course. A surprise inspection report of July 2016 was
placed before 276th Executive Committee which decided to call the Principal
to appear for hearing but no one appeared. After granting one more
opportunity at the request of the college, the executive committee in June
2017 passed following resolution :
"It was noted that institution did not appear before PHC of
PCI. In view of it, it was decided to seek explanation as to
why action should not be initiated against it for considering
the issuance of notice for withdrawal of approval under
Section 13 of the Pharmacy Act, 1948."
It is lastly submitted that the management and the college never ever
responded to the PCI for further extension of approval at any time
thereafter.
11. We have carefully considered the rival submissions and perused the
papers.
12. We would first take up the preliminary objection on behalf of the
DTE regarding maintainability of the writ petition in the light of availability
of provision of appeal under sub Section 4 of Section 3. Since scope and
ambit of Section 3 of the Educational Institutions Act is even under
consideration of this Court, it would be appropriate to reproduce it.
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"3. (1) Whenever the Director is satisfied that the
Management of any educational institution has neglected
to perform any of the duties imposed on it by or under any
law for the time being in force, or the memorandum of
association, or any instrument (including any rules,
regulations or by-laws) which regulates its administration
or is being managed in a manner detrimental to public
interest, and that it is expedient in the public interest, and
in particular, in the interest of education imparted in such
institution to take over the management of such institution
in so far as its activity relates to imparting education, he
may, notwithstanding anything contained in any law for
the time being in force, after giving the management of
such institution, a reasonable opportunity of showing cause
against the proposed action, by an order take over the
management of such institution in so far as its activity
relates to imparting education specified in the order for a
limited period not exceeding three years :
Provided that, where the management of an institution
has been taken over for a period of three years, the
Director may, if he is of opinion that in order to secure
proper management of the institution, it is expedient that
such management should continue to be in force after the
expiry of the said limited period, he may from time to time,
by an order issue directions for the continuance of such
management for such period not exceeding one year at a
time as he may think fit, so however,that the total period
for which such management is taken over shall not, in any
case, exceed five years :
Provided further that, no such show cause notice shall be
necessary where the Director is satisfied that the
Management or a majority of persons in control thereof are
members of an organisation which is or whose members or
persons in control there of are or have been indulging in
activities which are prejudicial to the internal security, the
public safety and the maintenance of public order in the
State and such activities are reflected in the course of
management and administration of the institution.
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(2) Whenever the management of any institution is taken
over under sub-section (1), every person in-charge of the
management of such institution immediately before the
appointed date shall deliver possession of the property of
the institution to the Director or any officer authorised by
him in this behalf (being property which in the opinion of
the Director is essential or necessary for the management
of the institution).
(3) After taking over the management of any institution
under this section, the Director may, with a view to
maintaining continuity of education imparted in such
institution, and in the interests of the students attending it,
arrange to manage the institution through one or more
Administrators appointed under section 4.
(4) Any Management, which is aggrieved by the order cf
a Director under sub- section (1), may make an appeal to
the State Government within a period of 15 days from the
date of receipt of the order of the Director. The State
Government may, after considering the representation
made by the Management and the order of the Director
pass such orders, including an order for the restoration of
the Management or for the reduction of the period during
which the management of such institution shall remain
vested in the-Administrator as it may deem fit.
(5) The decision of the Director, subject to the decision of
the State Government in the appeal, and the decision of the
State Government in the appeal, shall be final and shall not
be called in question in any court.
(6) Where the management of an institution has been
taken over under this section, the Administrator shall pay
such rent as may be payable for the building of the
institution to the person entitled to receive it as was being
paid by the Management immediately before the appointed
date. If the rent is payable to the Management, then such
rent shall not be paid to the Management, but it shall
remain at the disposal of the Administrator for the
management, maintenance and administration of the
institution.
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(7) During such period as any institution remains under
the management of an Administrator,--
(a) the service conditions, as approved by the Director, of
the employees shall not be varied to their disadvantage;
(b) such educational facilities as may be approved by the
Director and which the institution had been affording
immediately before the appointed date shall continue to be
afforded;
(c) all fees, all grants and all other receipts of the
institution (being fees, grants or receipts as relate to its
activity of imparting education therein)shall continue to be
available to the Administrator for being spent for the
purposes of the institution;
(d) no resolution passed at any meeting of the
Management of such institution shall be given effect to
unless approved by the Director; and
(e) it shall be lawful for the Administrator to terminate
the services of any employee who in his opinion is acting in
any manner detrimental to the interest of the institution or
education imparted therein after giving the employee a
reasonable opportunity of showing cause against the
proposed action;
(f) the employee who is aggrieved by any order of the
Administrator may, within 21 days of receipt of the order
terminating his services, appeal to the Director whose
decision in the matter shall be final and conclusive and
shall not be called in question in any court."
13. As can be noticed the provision contemplates an action by the
director of taking over management and apparently it would be an issue
between the two of them. There is no role for the staff members or the
students for participation in the enquiry to be undertaken by the director.
We are merely pointing this out to demonstrate that the only aggrieved party
by the order under sub section 1 of Section 3 could be management. It has
been provided remedy of a statutory appeal under sub Section 4. This is
conspicuous by the use of the word 'any Management' at the beginning of
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that sub section. For whatever reasons, the petitioners who are the teaching
and non-teaching staff members of the college were allowed and had
participated in the enquiry which ultimately resulted in passing of the
impugned order. Right to appeal has to be provided by a statute. When the
petitioners do not represent the management which alone has been
conferred with such a right under sub section 4 of Section 3, it would not
operate as a bar for the petitioners to approach this Court under Article 226.
Therefore, this objection is not sustainable in law and is accordingly
discarded.
14. Now, turning to the issue as to the vires of section 3 of the
Educational Institutions Act, in the light of the challenge being put up by the
learned advocate Mr. Karad in the light of the decision in the matter of
Adhiyaman Educational & research Institute (supra), though the submission
is attractive at the first blush, in our considered view, the vires of the
Educational Institutions Act has not been subjected to any challenge. It is a
petition by the staff members questioning the order passed by the DTE
under Section 3 of the Educational Institutions Act. As is observed above,
the management and the college were heard while deciding Writ Petition
No. 13358/2019 and for the reasons mentioned in the order passed therein
as to how it was a matter to be considered under that provision that this
Court had directed the DTE to undertake an enquiry for taking steps
thereunder. That order was never challenged by the management or the
college. On the contrary, it responded to the show cause notice issued by the
DTE, participated in the hearing without demur and thereafter the
impugned order was passed. We are merely pointing out these
circumstances to indicate that in this petition at the behest of the staff
members challenging the order passed by the DTE under Section 3 of the
Educational Institutions Act, the management and the college cannot be
permitted to resort to an argument putting up a challenge to the vires,
legislative competence of the State legislature in passing the Educational
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Institutions Act more so when the issue was raised for the first time in the
arguments without there being any whisper about it in the affidavit in reply.
The submissions of Mr. Karad on that line referring to various decisions on
the subject (supra) cannot be considered.
15. This brings us to the ambit and scope of the powers under Section 3
of the Educational Institutions Act in the context of the fact situation
narrated herein above. It does appear from the order passed by this Court in
Writ Petition No. 13358/2019 that several drastic observations were made
to demonstrate as to how it was a matter to be considered by the DTE for
invoking the powers under Section 3 of the Educational Institutions Act.
Following are some such observations :
"1) Since the year 2018-2019, the institution is in no
admission category. Except belated filing writ petition no
further steps seem to have been taken by the management
by representing before the AICTE or the Institute of
Pharmacy of the steps undertaken and a request to bring
the institute in admission category. It would appear that,
the management of the respondent No. 6/college has
neglected to perform the duties imposed on it. In such a
scenario, it was utterly inappropriate for the Director to file
an affidavit that as the management is not imparting
education to the students and that students were also
transferred to other institution, the respondent Nos. 1 and
3 do not find it expedient to invoke the provisions of
Section 3 of the Act of 1976. It was also insensitive and
irresponsible statement on the part of the Incharge Joint
Director of Technical Education, Aurangabad Region on
affidavit that not obtaining approval of the apex body to
run a course may not be treated as negligence to perform
any of the duties imposed on the management under any
law or the memorandum of association of that society as
mentioned in Section 3(1) of the Act of 1976 or that it
cannot be said that institution is being managed in a
manner detrimental to public interest.
2) We fail to understand that if the following acts (1)
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members of the teaching and non teaching staff have to
come to the Court for redressal of grievance for non
payment of applicable pay scale, the Court requiring to
issue positive directions against the management to make
the payment after coming to the conclusion that
management has failed to make the payment as per the
applicable pay scale. The SLP filed by the management is
dismissed. (2) The respondent No. 6/college being placed
in no admission category. (3) Subsequently, the affiliation
is withdrawn by the AICTE. In the writ petition filed by the
students a statement was required to be made by the
AICTE that keeping interest of the students order of
withdrawing affiliation has been withdrawn. (4) No
student has been admitted after 2018-2019, if are not
detrimental to the public interest and interest of education,
as per the affidavit filed by the Incharge Joint Director of
Education then is required to explain according to him,
what would constitute act of negligence or managing the
institution in a manner detrimental to the public interest
and detrimental to the education. The Director of Technical
Education is a responsible person. He is to be sensitive to
the issue and cannot in a casual manner file an affidavit
shirking the responsibility imposed upon him U/Sec. 3 of
the Act of 1976".
16. With respect, we are in complete agreement with the above
observations which even according to us addressed the fact situation and
indicated the utter disregard of the management in running the college.
17. However, according to us, sheer lack of the management in
performing the duties in the peculiar state of affairs in the matter in hand
cannot be the only consideration for invoking the powers. As can be
appreciated from the provision reproduced herein above, the whole purpose
and object in providing for taking over of a management of an educational
institution is in the public interest and is exercisable only for a limited
period of three years albeit it is extendable from time to time not exceeding
one year at a time but the total period cannot exceed five years. We are
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precisely pointing this to appreciate the reasoning assigned by the DTE in
refusing to exercise that power.
18. The sum and substance of the reasons assigned in the impugned
order can be summarized as under :
"The college has been put under 'No admission category'
since the year 2018-2019. No fresh students are admitted
from that year onwards. The college was allowed to be run
only for the students who were already admitted till the
academic year 2020-2021. No students were left in the
college. The college is non -functional since 2020-2021. A
non-functional institution cannot be taken over in exercise
of that power."
19. As can be appreciated, existence of the facts which could have
otherwise enabled the DTE to invoke the powers under Section 3 cannot be
disputed in the light of the observations of this Court made while deciding
Writ Petition No. 13358/2019. However, if the college for all practicable
purposes is non-functional in any respect for last more than three years, in
our considered view the stand being taken by the DTE in the impugned
order that there is absolutely nothing, except perhaps, the property and the
liabilities which can now be taken over, his refusal to take over the
management cannot be said to be wholly illegal. It is to be noted that it is a
matter of running of a college. If it has already been shut, may not be in the
legal sense inasmuch it has not been closed down by resorting to the
relevant provisions either under the AICTE Act or the Maharashtra Public
Universities Act, expecting the DTE to take over the management would
tantamount to reviving the college for all practicable purposes, when it has
already been practically shut down for number of years.
20. We appreciate the fact that it seems to be entirely the fault of the
management in not running the college efficiently since it had failed to even
WP 4978 22.odt
satisfy the orders of this Court whereby it was directed to pay the staff
members scale according to 6 th Pay Commission which admittedly have
crossed to Rs. 6 to 7 Crores. It is also apparent from the stand being taken
by the PCI in its affidavit in reply that the management had even not
bothered to appear before it for extension of approval since last four to five
years. In our considered view, therefore, even if the management is to be
blamed, one cannot overlook the circumstances discussed herein above
which practically makes it impossible for the DTE to exercise the powers
under Section 3 of the Educational Institutions Act.
21. We have limitations in exercising the powers under Article 226 of the
Constitution. The DTE has been conferred with the powers under Section 3
of the Educational Institutions Act. We cannot sit in appeal and can only
ascertain if there is any gross error and illegality in the process and the
manner in which the decision has been taken. When the DTE has formed an
opinion and to his subjective satisfaction the circumstances discussed herein
above are not sufficient to invoke that power we cannot substitute our view
by reversing that decision.
22. In the circumstances, with all sympathies with the petitioners, the
writ petition cannot be allowed.
23. The Writ Petition is dismissed.
24. Rule is discharged.
(ABHAY S. WAGHWASE, J. ) (MANGESH S. PATIL, J.)
mkd/-
