Guru Premsukh Memorial College Of ... vs All India Council For Technical ...
2014 Latest Caselaw 5524 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: 7th November, 2014.

+             LPA No.665/2014 & CM No.16288/2014 (for stay)

       GURU PREMSUKH MEMORIAL COLLEGE
       OF ENGINEERING & ANR.                     ..... Appellants
                   Through: Mr. Jatan Singh, Mr. Soayib Qureshi
                             & Mr. Mudit Gupta, Advs.

                               Versus

    ALL INDIA COUNCIL FOR TECHNICAL
    EDUCATION & ORS.                            ..... Respondents
                  Through: Mr. Amitesh Kumar & Ms. Mamta
                           Tiwari, Advs. for R-1.
                           Mr. Mukul Talwar with Mr.
                           Sradhananda Mohapatra & Mr. Vipin
                           Singh, Advs. for GGSIPU.
                           Ms. Bandana Shukla for Ms. Ruchi
                           Sindhwani, Adv. for R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 15 th September,

2014 of the learned Single Judge of dismissal of W.P.(C) No.4007/2014

preferred by the appellants.

2. This appeal came up before this Court first on 29th September, 2014,

when the counsels for the respondents having appeared on advance notice,

we, with consent, heard the appeal finally and reserved judgment.

3. The writ petition from which this appeal arises was filed impugning

the order dated 24th June, 2014 of the respondent No.1 All India Council for

Technical Education (AICTE) placing the appellant No.1 Guru Premsukh

Memorial College of Engineering, established by the appellant No.2

Bhagwan Mahavir Education Society (Registered), under "withdrawal of

approval status" for the academic year 2014-2015 and seeking a direction to

the respondent No.1 AICTE to grant approval to the appellants for extension

of affiliation for the academic year 2014-2015 for engineering courses,

pleading:

(i) that the appellant No.1 College was granted affiliation by the

respondent No.2 Guru Gobind Singh Indraprastha University

(GGSIPU) from academic session 2000-2001 and had been

functioning since then i.e. for the past 13 years;

(ii) that the appellant No.1 College from its inception has been

functioning from a temporary site and though had taken all reasonable

steps to shift to a permanent location but for the reasons not

attributable to the appellants, has not been able to do so;

(iii) that in the National Capital Territory (NCT) of Delhi,

institutional land was under the control of Delhi Development

Authority (DDA) and to establish an institution, land was required to

be procured from the DDA;

(iv) that the appellants on 13th March, 2000 applied to the DDA for

five acres of land for construction of a college building as per the

respondent No.1 AICTE‟s norms;

(v) that the application aforesaid of the appellants was sponsored /

recommended by the Govt. of NCT of Delhi (GNCTD) (respondent

No.3);

(vi) that in the meeting of Institutional Allotment Committee of the

DDA held on 13th February, 2003, allotment of three acres of land in

PSP Area No.2 in between Sectors 21 & 23, Rohini, Delhi to the

appellants was approved;

(vii) that however due to change of Union Government, all

allotments made during the period of previous government came to be

scrutinized and a committee was constituted for the said purpose;

(viii) that on the basis of the report of the said committee, the

allotment approved in favour of the appellants was cancelled;

(ix) that due to the aforesaid cancellation, the respondent No.1

AICTE started threatening the appellants with the withdrawal of

affiliation;

(x) that the appellants filed W.P.(C) No.2459/2005 seeking a

direction to the DDA to give effect to the recommendation dated 13th

February, 2003, of allotment of land aforesaid to the appellants and

also seeking a direction to the respondent No.1 AICTE to not withhold

the approval to the appellants for running the Engineering Degree

College for the academic session 2005-2006; vide interim order dated

5th February, 2005 in the said writ petition, DDA was restrained from

disposing of the plot earlier allotted to the appellants and it was also

observed that the respondent No.1 AICTE could not unreasonably

withhold the approval on appellants‟ application for Engineering

Courses for the academic year 2005-2006, only on the ground that the

appellants did not possess the permanent site;

(xi) that due to the pendency of the aforesaid writ petition, the

appellants were not able to procure the permanent site and were on the

contrary threatened by the respondent No.1 AICTE before the start of

each academic session with cancellation of approval, compelling the

appellants to approach the Court for grant of approval before the start

of every academic year and the interim order dated 5 th February, 2005

was continued for the academic years 2006-2007, 2007-2008, 2009-

2010 and 2010-2011;

(xii) that W.P.(C) No.2459/2005 was vide order dated 25th March,

2011 disposed of owing to the respondent No.1 AICTE vide its order

dated 18th February, 2011 having extended the approval in favour of

the appellants for academic years 2011-2012 as well as 2012-2013; it

may be mentioned that the respondent No.3 GNCTD also issued

Policy Circular dated 6th May, 2011 to the effect that the institutions

being run on rented premises be allowed to run for two academic years

i.e. 2011-2012 and 2012-2013;

(xiii) that the appellants acquired 16.7 acres of land at Moorthal,

Sonepat, Haryana and constructed the required building and

infrastructure thereon and applied to the respondent No.2 University

for grant of affiliation at the said address; however the respondent

No.2 University did not agree, taking a stand that its affiliation could

not extend beyond the borders of NCT of Delhi;

(xiv) that the appellants filed W.P.(C) No.1566/2012 challenging the

said decision of the respondent No.2 but which could not succeed;

(xv) that the appellants thus, in or about the year 2014 disposed of

the Moorthal campus;

(xvi) that the appellants are still in search of suitable land for the

purpose of running the appellant No.1 College;

(xvii) that the respondent No.1 AICTE in the year 2012, without any

basis, on its website showed the status of the appellant No.1 College

as "CBI"; the appellants immediately protested but without avail;

(xviii) that the respondent No.1 AICTE issued a show cause notice

dated 14th June, 2013 to the appellants and to which a reply dated 27 th

June, 2013 was given; the respondent No.1 AICTE vide letter dated

11th July, 2013 called the appellants for a hearing;

(xix) that the respondent No.1 AICTE thereafter vide letter dated 16th

/ 22nd July, 2013 informed the appellants of its decision to conduct

inspection by Expert Visiting Committee (EVC) to ascertain the

infrastructural requirement as per norms;

(xx) that the respondent No.1 AICTE thereafter served the appellants

with another notice dated 24th September, 2013, asking the appellants

to show cause as to why they should not be proceeded against for

failure to disclose factual information and / or for having suppressed /

misrepresented information and be held to be in violation of terms and

conditions contained in the letter of approval;

(xxi) that a reply dated 4th October, 2013 was given to the aforesaid

show cause notice and a hearing was held on 21st October, 2013;

(xxii) that the respondent No.1 AICTE vide letter dated 30th October,

2013 informed the appellants of its decision to place the appellant

No.1 College under "No Extension of Approval 2013-2014" Status,

even though the respondent No.1 AICTE had vide its earlier letter

dated 13th April, 2013 extended the approval for affiliation for the

academic year 2013-2014;

(xxiii) that no further action was taken by the respondent No.1 AICTE

and the students already admitted by the appellants for the academic

year 2013-2014 continued with the course;

(xxiv) that the appellants on 15th May, 2014 applied for approval for

the academic year 2014-2015 and were intimated of the inspection

proposed of their premises on 23rd May, 2014;

(xxv) that on 23rd May, 2014, the appellant No.1 College was closed

due to vacation;

(xxvi) that the respondent No.1 AICTE vide letter dated 2nd June,

2014 called the appellants for hearing before the Standing Appellate /

Complaint Committee on 5th June, 2014; and,

(xxviii) that the appellants attended the hearing of 5th June, 2014 but

the same was held with a pre-determined mind and the reply tendered

by the appellants was also not taken / considered and without any

hearing, the impugned order dated 24th June, 2014 (supra) was passed.

4. The petition was entertained and a counter affidavit filed by the

respondent No.1 AICTE and whereafter the appellants as well as respondent

no.2 University filed an additional affidavit. The learned Single Judge, vide

the impugned judgment dated 15th September, 2014, dismissed the writ

petition, finding / observing / holding:

(a) that W.P.(C) No.2459/2005 (supra) filed by the appellants had

been dismissed vide a detailed judgment dated 25 th March, 2011;

however extension of approval for two academic years i.e. 2011-2012

and 2012-2013 was granted to the appellants;

(b) that in the meanwhile, on 29th January, 2010, Central Bureau of

Investigation (CBI) vide its letter informed the Chief Vigilance

Officer, AICTE that from 1999, the appellants had been continuing to

operate from temporary accommodation despite significant shortage of

area and marginal shortage in built-up area and paucity of students

cadre ratio, computer, internet etc.; that in pursuance thereto, the

respondent No.1 AICTE issued the show cause notice dated 14 th June,

2014 to the appellants and to which the reply dated 27th June, 2014

(supra) had been given by the appellants and after hearing the

representatives of the appellants, the Standing Complaint Committee

of the respondent No.1 AICTE had furnished its report dated 12 th July,

2013 recommending that the appellants be directed to shift to a

permanent campus and an EVC be sent to ascertain the infrastructural

requirement;

(c) that after the report dated 29th July, 2013 of the EVC, the show

cause notice dated 24th September, 2013 (supra) had been issued to the

appellants and to which reply dated 4th October, 2013 had been given;

a detailed hearing was given to the appellants before the order dated

30th October, 2013 (supra);

(d) that the said order dated 30th October, 2013 of the respondent

No.1 AICTE was not challenged by the appellants and had attained

finality;

(e) that inspite of the aforesaid, the appellants filed application for

extension of approval for the academic year 2014-2015;

(f) that the said application of the appellants was accordingly

considered as per the procedure prescribed for the "restoration against

punitive action";

(g) that the EVC by its inspection on 23rd May, 2014 also had

reported, (I) that the building from which the appellant No.1 College

was functioning, appeared to have been constructed for a hotel;

therefore the room sizes are not as per norms; (II) that the

infrastructure and neatness needs to be improved; (III) that the faculty-

cadre ratio is to be maintained and more Doctorates in Domain areas

are required; and, (IV) that the college to be shifted to own building;

(h) that in accordance with the aforesaid report another show cause

notice dated 2nd June, 2014 (supra) was issued and to which reply was

given and hearing held on 5th June, 2014 as per record of which the

appellants did not produce any explanation for the deficiencies and

accordingly the impugned order dated 24th June, 2014 (supra) was

passed;

(i) that this Court in exercise of the power of judicial review was

not to examine the correctness of the decision dated 24th June, 2014

but only the decision making process;

(j) that the argument of the appellants that the decision dated 24 th

June, 2014 had been taken without affording any hearing to the

appellants is contrary to facts; the said decision was taken after

following a very elaborate procedure;

(k) that the Standing Appellate / Complaint Committee of the

respondent no.1 AICTE which had given hearing to the appellants

comprises a retired High Court Judge, a Principal and a Professor and

does not include any serving officer or employee of AICTE; no

allegation of bias or malice has been levelled against any member of

the Standing Appellate / Complaint Committee; consequently the

contention of the appellants that their reply or documents were not

taken on record could not be accepted;

(l) the contention of the appellants that they were unaware of the

CBI report prior to the issuance of the decision dated 24th June, 2014

was also incorrect; the said CBI report was extensively referred to in

Show Cause Notices dated 14th June, 2013, 24th September, 2013 and

in AICTE's order dated 30th October, 2013.

(m) in any case, CBI's report dated 29th January, 2010 was only a

starting point of inquiry and the decision dated 24th June, 2014 was

based on deficiencies pointed out by the AICTE's EVC‟s report dated

23rd May, 2014;

(n) that the principles of natural justice have been complied before

taking the decision dated 24th June, 2014;

(o) the contention of the appellants that the report of the EVC dated

23rd May, 2014 points out only minor deficiencies, also cannot be

accepted in as much as EVC had reported deficiencies like shortfall in

building area and qualified faculty as well as cadre ratio, boys‟

common room, girls‟ common room, cafeteria, classrooms, tutorial

rooms, computer centre, libraries, seminar halls etc. The said

deficiencies are major in nature.

(p) reliance by the appellants on respondent no.2 University‟s

Inspection Report dated 16th June, 2014 was misplaced as the

respondent no.1 AICTE had taken the decision dated 24th June, 2014

in accordance with the procedure prescribed in its regulations and

which procedure did not provide for inspection by the affiliating

University;

(q) the respondent no.2 University also in its affidavit had admitted

that its inspection was purely an annual exercise to evaluate academic

standards and teaching methods and not for evaluating the

infrastructure and other physical parameters; thus the respondent no.2

University's inspection report cannot be taken into account;

(r) the contention of the appellants, of Amity School of

Engineering and Technology also inspite of similar deficiencies

having been granted approval was also of no avail as Amity College

was granted permission on self assessment basis while the appellants‟

application for approval was rejected after EVC inspected the

appellants‟ premises in accordance with procedure prescribed under

Clause 11 of Chapter IV of AICTE Approval Process Handbook; there

could also be no negative equality; and,

(s) that the appellants‟ institute thus suffers from deficiencies

which had not been cured.

5. We have perused the records and considered the rival contentions.

Besides the reasoning given by the learned Single Judge, what immediately

struck us about the matter was that the appellant no.1 College since the year

2000 and till the year 2013-14 has been functioning from a premises from

which it was temporarily allowed to commence functioning in the year 2000

on the condition that it will make arrangements for a permanent location as

per the prescribed norms within two years therefrom.

6. Though the said time of two years expired in the year 2002 but it

appears that the appellants, on the basis of their plea that the allotment of

land for permanent site applied for to the DDA was under process, were

allowed till the year 2005 to so function from the said temporary site.

However the respondent no.1 AICTE in the year 2005 refused to allow the

appellants any further from functioning from the temporary site and

withdrew the approval and which led to W.P.(C) No.2459/2005. The

appellants thereafter continued to function from the said temporary site

under the interim orders aforesaid in W.P.(C) No.2459/2005. The said writ

petition also however stands dismissed on 25th March, 2011 and which order

has attained finality. Though the interim orders in the writ petition came to

an end on dismissal of the writ petition but the appellants continued to

function till the end of the Academic Year 2013-14 owing to the policy

decision taken by the respondent no.3 GNCTD to allow such institutions to

function from temporary site till 31st December, 2014. The appellants now,

by filing this appeal, want this Court to perpetuate the functioning of the

appellant no.1 College from the premises from which the appellant no.1

College was allowed to function temporarily and which premises does not

fulfil the norms prescribed and from which the appellants, under the interim

orders of the Court in W.P.(C) No.2459/2005, continued to function till the

end of the Academic Year 2013-14.

7. The appellants thereby want to make the accommodation, which was

„temporary‟, „permanent‟. We thus straightaway enquired from the counsel

for the appellants as to how the same can be permitted.

8. The counsel for the appellants first took a strange argument that the

appellants having been so allowed to function for the last 13 years, should be

continued to be allowed to function. The said argument has to be recorded,

only to be rejected. The appellants forget that the respondent no.1 AICTE

had pulled the strings on the appellants as far back as in the year 2005. The

continued functioning of the appellants thereafter was under the interim

order in W.P.(C) No.2459/2005 and which stands dismissed and the order of

dismissal whereof the appellants have not even placed before the Court.

9. We have further enquired from the counsel for the appellants whether

these proceedings do not amount to re-litigation. Though the appellants have

not placed copy of W.P.(C) No.2459/2005 also before us but from the

narrative it can safely be assumed that the claim of the appellants in the said

earlier writ petition which stands dismissed was the same as in this

proceeding. Once the order of dismissal in the earlier proceeding has attained

finality, the appellants cannot be permitted to re-agitate the same issues

contending that the approval sought is for a subsequent academic year. The

decision in a proceeding for a previous academic year for the reason of the

appellants being not entitled to continue functioning from a site /

accommodation from which they were temporarily so allowed would be

binding for the subsequent academic years also till the appellants shift to a

proper premises. We may further notice that though at the time of filing of

W.P.(C) No.2459/2005, the cancellation by the DDA of allotment of land

earlier approved in favour of the appellants was also in issue and perhaps for

which reason interim orders were granted in favour of the appellants, the said

issue has also been now finally decided against the appellants. Today, there

is no possibility of the appellants being allotted any land by the DDA. The

DDA in or about the year 2004 changed its policy qua institutional land and

the same is now disposed of only by auction. It is not the case of the

appellants that they have participated in any auction or taken any steps for

acquiring land for shifting to a permanent site as they were required to even

as a condition of grant of the initial approval.

10. When the matter is seen in this light, all arguments raised by the

appellants, of non-compliance of the principles of natural justice, bias, wrong

procedure having been followed by the respondent no.1 AICTE in reaching

the decision dated 24th June, 2014, pale into insignificance. The hard reality

is that the appellant no.1 for the last 13 academic years has been functioning

from a premises not fit for functioning of such an institution and obviously to

the detriment of the students who owing to an extreme paucity of educational

institutions are compelled to take admission therein. However the norms

prescribed qua the accommodation, infrastructure etc., required to be

satisfied to be entitled to approval for running such an institution, and to

which there is no challenge and which the appellants admittedly do not

satisfy are not to be reduced to an empty formality. The Supreme Court in

State of Maharashtra v. Vikas Sahebrao Roundale (1992) 4 SCC 435

noticed the mushroom growth of ill-equipped and under staffed educational

institutions, at times in complicity with the statutory authorities who fail to

effectively enforce the provisions of the statutes, all as a result of least

capital outlay by the government for education. The Supreme Court recently

in Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College

v. National Council for Teacher Education (2012) 2 SCC 16 also held that

inadequacy of space and staff is something which disqualifies any institution

from seeking recognition. The Supreme Court further expressed surprise as

to how the institution could have reported compliance with the requirements

of the Regulations and complete removal of the deficiencies when the

institution had neither the land standing in its name nor the building

constructed in which it could conduct the courses and that the said fact was

sufficient to justify withdrawal of recognition.

11. In any case the appellants having obtained initial approval in the year

2000 on the promise and condition to, within two years therefrom, shift to its

permanent site, cannot now be heard to contend that the said temporary site

fulfils the requirements. These proceedings, after the dismissal of earlier

proceeding being W.P.(C) No.2459/2005 and after the decision dated 30th

October, 2013 of the respondent no.1 AICTE of refusal of approval for the

year 2013-14 (but inspite of which the appellants were allowed to complete

the academic session which had by then begun) having remained

unchallenged, are clearly an abuse of process of the Court.

12. We accordingly in accordance with the above and which is in addition

to the reasons given by the learned Single Judge, dismiss this appeal with

costs of Rs.20,000/- payable by the appellants to the respondent no.1 AICTE.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE

NOVEMBER 7, 2014 bs/pp