Delhi High Court
Chanderprabhu Jain College Of ... vs Directorate Of Higher Education & ... on 13 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8163/2019
Judgment reserved on : 29.07.2019
Date of decision : 13.08.2019
CHANDERPRABHU JAIN COLLEGE OF HIGHER EDUCATION
& SCHOOL OF LAW & ANR. .... Petitioners
Through: Mr. Sameer Rohatgi, Mr.
Akshit Pradhan, Mr. Kunal
Kumar, Mr. Dipender Chauhan
& Mr. Soumya Sarin,
Advocates.
versus
DIRECTORATE OF HIGHER EDUCATION & ORS
..... Respondents
Through: Mr. Gautam Narayan, Advocate
with Mr. Anuj Aggarwal,
Advocate for R-1.
Mr. Preetpal Singh, Advocate
for BCI.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner No.1 Chanderprabhu Jain College of Higher
Education & School of Law was founded under the aegis of the
Petitioner No.2 the Rishi Aurobindo Educational Society at Plot No.
OCF Sector A-8, Narela, Delhi- 110040, in the year 2007 and in the
year 2012 and 2013, the respondent No.1, i.e, the Directorate of
Higher Education granted a 'No Objection Certificate' to the
petitioner's college for the intake of 140 students in BA LLB course
for the academic session 2012-2013 in terms of the approval granted
by Respondent No.3, i.e., the Bar Council of India, for intake of 140
students. The petitioner No.1 thereafter is stated to have started the
BBA LLB course for the academic year 2014-15 with an intake of 120
seats for the first time and a 'No Objection Certificate' dated
31.7.2014 was issued by the respondent No.1, i.e., the Directorate of
Higher Education, for the same. In the year 2015 to 2017, the
respondent No.1 i.e, the Directorate of Higher Education, issued an
NOC to the petitioner No.1's college for an intake of 120 students for
the BBA LLB course. The petitioner No.1 is indicated to have applied
to the respondent No.1 for an increase in the intake by 60, thereby
increasing the total seats to 180 for their BBA LLB course for the
academic year 2017-18, and an NOC was duly granted by the
respondent No.1 without any protest vide its letter dated 16.06.2107.
The petitioner No.1 is stated to have applied to the respondent No.3,
i.e, the Bar Council of India, seeking extension of approval for 180
seats in BBA LLB course for the academic year 2017-18, which was
also granted vide its letter dated 23.06.2017. The petitioner No.1
submits that in the year 2018 it applied to the respondent No.2, i.e., the
Guru Gobind Singh Indraprastha University, for the grant of NOC for
BBA LLB course for an intake of 180 students for the academic year
2018-19, which was duly granted vide letter dated 5.6.2018.
2. Inter alia, it has been submitted that the respondent No.3, i.e,
the Bar Council of India, vide their letter dated 03.04.2018 granted
extension of approval to the Petitioner College for continuing the BBA
LLB course with 180 seats for the academic year 2018-19. It has been
submitted on behalf of the petitioner that on 27.4.2018 the Joint
Assessment Committee comprising of members from both the
respondent No.1 i.e. the Directorate of Higher Education and
respondent No.2, i.e., the Guru Gobind Singh Indraprastha University,
visited the premises of the Petitioner College for conducting an
inspection and thereafter granted the approval for intake of 180
students in the BBA LLB course for the academic session 2019-2020
and the respondent No.1 i.e, the Directorate of Higher Education, on
23.5.2018 issued the impugned letter dated 23.5.2018 whereby it had
not granted the NOC to the Petitioner College for conducting the
BBA LLB course in the academic year 2018-19 and that the
petitioner college vide its letter dated 28.5.2018 wrote to respondent
No.2, i.e., the Guru Gobind Singh Indraprastha University to
approach the respondent No.1 i.e, the Directorate of Higher
Education, for granting NOC for the BBA LLB course for the
academic year 2018-19 and the respondent No.2, i.e., the Guru
Gobind Singh Indraprastha University, vide its letter to the
respondent No.1 i.e, the Directorate of Higher Education, dated
5.6.2018 requested the respondent No.1 i.e, the Directorate of
Higher Education, to re-consider the grant of NOC to the petitioner
college for the BBA LLB course for the academic year 2018-19 but
it was to no avail which thus constrained the petitioner to file a Writ
Petition bearing no. 6698/2018 titled as 'Chanderprabhu Jain
College of Higher Education & School of law v. Directorate of
Higher Education & Anr' against the non-grant of NOC by
Respondent No.1 for conducting BBA LLB course for academic
session 2018- 2019.
3. It is further submitted on behalf of the petitioner that vide order
dated 25.06.2018 in the said Writ Petition No.6698/2018, the
petitioner is stated to have been allowed to continue the BBA LLB
course with 180 seats for the academic session 2018-2019, subject to
an undertaking by the Petitioner College to construct additional area of
810 sq. mtrs. by the academic year 2019-2020, which would be
required for the academic session of 2019-20.
4. The petitioner further submits that it was constrained to file
another Writ Petition bearing no. 9405/2018 titled as 'Rishi
Aurobindo Educational Society V. DDA & Ors. when the Petitioner
College was unable to abide by the said undertaking to construct
additional area due to non-sanction of building plans by the DDA.
The said Writ Petition is stated to be pending before this Court. The
Writ Petition (C) No. 6698/2018 is also pending before this Court.
5. The petitioner has submitted that the respondent No.2, i.e.,
the Guru Gobind Singh Indraprastha University, has granted
provisional affiliation to the Petitioner College towards conducting
the BBA LLB course with 180 seats for the academic year 2019-20
and that on an application made by the petitioner College to the
respondent No.3, i.e, the Bar Council of India on 24.12.2018 for
extension of approval for the BBA LLB course for the academic
session 2019-20 with an intake of 180 students, Respondent No.3
conducted an inspection on 23.02.2019. The petitioner submits that
on 9.5.2019 during the pendency of the Writ Petition (C) no. 6698
of 2018, the petitioner filed an application bearing C.M. no.
22825/2019 and the petitioner sought grant of interim direction to
grant status quo as on date for conducting BBA LLB course for the
academic year 2019-20. The said CM APPL.22825/2019 was
dismissed as withdrawn vide order dated 05.08.2019 in WP (C)
6698/2018.
6. The petitioner further submitted that the respondent No.3, i.e,
the Bar Council of India, granted affiliation to the Petitioner College
for conducting BBA LLB Course with an intake of 180 students for
the academic session 2019-2020 vide its letter dated 25.5.2019.
7. According to the petitioner on 8.7.2019 during the pendency of
the W.P.(C) No. 6698/2018, the petitioner herein filed an application
CM No. 30124/2019 vide which the petitioner sought direction to the
respondent No.1 i.e, the Directorate of Higher Education, to issue
NOC to the Petitioner College, for intake of 180 students for BA LLB
and BBA LLB courses for the academic year 2019-20, in accordance
with the approval letter issued by the respondent No.3, i.e, the Bar
Council of India, dated 25.05.2019 which however has also since
been dismissed as withdrawn as prayed by the petitioner herein on
5.8.2019 The respondent No.1 is stated to have further issued the NOC
to the petitioner's college granting approval for 120 seats for BBA
LLB course for the academic session 2019-2020.
8. Vide the impugned letter dated 19.7.2019 of the respondent
No.1 i.e, the Directorate of Higher Education, addressed to the
respondent No.2, i.e., the Guru Gobind Singh Indraprastha University,
it was mentioned to the effect:
" The JAC report in respect of the above said institute has been
perused and it has been noticed that Part-I of the JAC report is
more relevant in respect of land issues and statutory
compliances of the institute and remaining Part-II &III of JAC
report is related to academic matters including -infrastructure
pertaining to GGSIP University. Since no documents has been
attached/enclosed along with copy of JAC report forwarded by
GGSIPU, hence it is presumed that the JAC headed, by Retd.
Senior Officers, other subject experts and representative, of
University as members/has seen and examined all the relevant
documents/statutory clearances as. per policy guidelines during
the, inspection and recommendations has been made in
accordance with policy guidelines. Further the GGSIPU vide,
its letter dated 27.06.2019 informed that the Board of Affiliation
of University has decided that the-recommendation of the JAC
should also be considered as the recommendation of the
University.
Therefore, considering the facts above and based on the
recommendation of JAC and GGSIP University the provisional
NOC for course with intake for (1) BBA-75/3 Yrs & BBA [2nd
shift]-75/3 Yrs.(2) BBA (CAM) -30/3 Yrs. & BBA (CAM) (2nd
Shift)-30/3 Yrs. (3) BCA-30/3 Yrs. (5) BA,LL.B.-180/5 Yrs (2)
BBA, LL.B.-120/5 Yrs is granted subject to following
conditions:-
The Society/institute shall abide by all the rules and
regulations in force in Delhi by the Government, Local
authorities and the affiliating University.
a. The Society/Institute shall abide by all the rules and
regulations in force in Delhi by the Government, Local
authorities and the affiliating University.
b. The Society/ Institute shall follow the fee structure
prescribed by the University/Govt. of NCT of Delhi
c. If it comes to the knowledge of Govt. of NCT of Delhi that
the NOC has obtained by giving any false or misleading
information or by concealing or suppressing any material
facts or information, the NOC granted shall be
withdrawn/cancelled.
d. The University shall monitor compliance of the terms &
conditions on a quarterly basis. If it is found during the
course of monitoring of the compliance of the terms &
conditions of grant-of NOC that the institute has not
complied with these terms & conditions, the
e. University may take penal action against the institute after
following proper legal procedure.
f. The University may ensure the space norms prescribed by
the Statutory Authorities/University/AICTE/UGC etc are
complied with.
g. The Institute/University shall strictly follow the policy
guidelines prescribed by Directorate of Higher Education,
GNCT of Delhi vide letters dated 12.01.2016 & 03.02.2017
in letter and spirit.
h. All the statutory compliances' and removal of all; other
deficiencies/ shortcomings/suggestions noticed in the JAC
report must be complied with by the concerned institute
latest by 30th September, 2019. It is emphasized that the
required precaution be taken immediately and all
deficiencies removed in the given time frame failing Which
appropriate action as per guidelines/policy should be taken
by GGSIPU, under Intimation to the Department. The
GGSIP University must ensure the compliance of the same
within stipulated time period and get the institute again
inspected by the JAC and submit the compliance report to
this department by October, 2019 in respect of all the
deficiencies shortcomings/suggestions given in the JAC
report forwarded by GGSIP University vide letter dated
27.06.2019 referred above.",
with it having further been observed in para 'h' of the same to the
effect:
"All the statutory compliances' and removal of all;
other deficiencies/ shortcomings/suggestions noticed
in the JAC report must be complied with by the
concerned institute latest by 30th September, 2019. It
is emphasized that the required precaution be taken
immediately and all deficiencies removed in the given
time frame failing Which appropriate action as per
guidelines/policy should be taken by GGSIPU, under
Intimation to the Department. The GGSIP University
must ensure the compliance of the same within
stipulated time period and get the institute again
inspected by the JAC and submit the compliance report
to this department by October, 2019 in respect of all
the deficiencies shortcomings/suggestions given in the
JAC report forwarded by GGSIP University vide letter
dated 27.06.2019 referred above."
(emphasis supplied)
9. The petitioner is aggrieved by the letter dated 19.7.2019 of the
respondent No.1 i.e, the Directorate of Higher Education, to the extent
that it fails to grant NOC to the Petitioner College for the continuance
of the BBA LLB course for the academic year 2019-20 with an
additional intake of 60 students and further seeks that the respondent
No.1 be directed to issue NOC to the petitioner college for continuing
of the BBA LLB course for the academic year 2019-20 with an intake of
180 students.
10. It has been submitted by the petitioner that the illegal and
arbitrary action of the respondent No. 1 for the non-grant of NOC to
the petitioner college for the academic year 2019-20 of the BA. LLB.
course for an intake of 180 students is in violation of the policy
guidelines dated to 12.01.2016 and the approval granted by the
respondent No. 3 vide letter dated 25.05.2019. It has further been
submitted by the petitioner that the respondent No. 1 cannot take a
contrary stand in as much as for the year 2012- 2013 they granted the
approval granted by the respondent No. 3 and in complete disregard
thereof had now failed to follow the same.
11. Inter alia, the petitioner submits that it has adequate number of
classrooms, infrastructure, faculty area and other facilities as are
necessary to continue the BA. LL.B. course with an intake of 180
students for the academic session 2019-20. The petitioner submits that
the sanction granted by the Bar Council of India to the petitioner
college to admit 180 students for the BBA LL.B. course for the
academic year 2019-20 is sacrosanct, it being a statutory body
governing the field of legal education. The petitioner further submits
that the Bar Council of India had undertaken a thorough and detailed
inspection of the premises of the petitioner's College qua the requisite
infrastructure as is evident from the inspection report of the Bar
Council of India dated 23.02.2019. The petitioner further submits that
it is settled law that in the case of a possible conflict between the rules
and regulations for granting approval, prescribed by the apex body of
the statutory body governing the said discipline, and rules and
regulations as stipulated by the State government, the rules and
regulations for granting approval prescribed by the apex of the
statutory body must prevail.
12. The petitioner has further submitted that the Bar Council of
India, Rules of Legal Education, 2008 is a special enactment traceable
to the 66th Entry in the List 1 of the 7th schedule of the Constitution of
India, 1950, which covers and occupies the entire field of legal
education as well as coordination and determination of standards in
institutions for higher education. The petitioner submits that the
Advocates Act, 1961, read with the Rules of Legal Education, 2008
has precedence over any other law including the policy guidelines of
the respondent No. 1 dated 12.01.2016 and the Guru Gobind Singh
Indraprastha University Act, 1998.
13. The petitioner further submits that it is settled law that if the
provisions of the Central Statute and a State Statute are inconsistent
and repugnant to each other, the Central Statute has to prevail over the
State Statute and denial of affiliation by the State University on the
grounds that are inconsistent with those enumerated in the Central
Statute have to be inoperative. The petitioner has further submitted
that the respondent No. 1 is precluded from imposing any condition
for grant of NOC to the petitioner college which is inconsistent with
the provisions made under the Advocates Act, 1961 read with the
Rules of Legal Education 2008.
14. The petitioner has further submitted that the impugned action of
the respondent No. 1 by the non-grant of the NOC for conducting the
BBA LL.B. course with an intake of 180 students is contrary to the
provisional affiliation granted by the respondent No. 2 university to
the petitioner college, wherein it has been categorically
mentioned/stated that seat intake admissions will only be allowed on
the basis of recommendations of JAC, NOC of the concerned State
government (wherever applicable) and Bar Council of India and
submission of the same in the affiliation branch, GGSIP University,
for the concerned academic session 2019-2020.
15. The petitioner submits that there are inherent contradictions in
the said policy guidelines dated 12.01.2016 as observed by the
respondent No. 1 in its notice dated 09.07.2012 where it has been
recorded:
"Under the existing guidelines, it is stated that wherever
the approval is required from any statutory body, the
norms prescribed. If available precisely, from that body
for that program would have to be adopted mutalis
mutandis.
The Bar Council of India in its communication dated 01-
08-2009 extended its approval for 80 students along with
01 additional section of 60 students from the academic
session 2009-10. However, the college at that time
requested for admission of 120 students in place of 140
students. Now it has applied for 180 seats from the
academic year 2012-13 with sanctioned intake of 140
students and additional intake of 40. Since this figure of
140 has already been approved by Bar Council of India,
we may issue NOC on the strength of the approval of the
Bar Council of India for 140 seats. If it is not necessary
to review the existing guidelines, the exercise may be
carried out"
16. Inter alia the petitioner submits that the inspection committee of
the respondent No. 3 consists of experts and there cannot be any
challenge made to the recommendation granted by it and inter alia
submits that the members of the inspection committee of the
respondent No. 3 were:
a) Hon'ble Mr. Justice Bhanwar Singh, Former Judge,
Allahabad High Court;
b) Mr. Vijay Bhatt, Advocate, M.T. Bar Council of Trust;
c) Mr. Sunil Gupta, Member, Respondent no. 3;
d) Mr. Kumar Mukesh, (Special Invitee), member, State
Respondent no.3;
e) Mr. Sanjay Rathi, STBC, Delhi (Special invitee). Member
State Bar Council of Delhi;
f) Dr. K.K. Mittal (For Law), Dean, CCS University, Meerut
g) Dr. Harphool Singh (For Eco &Management)
17. Inter alia the petitioner submits that it undertakes to comply
with the order dated 25.06.2018 and the undertaking given pursuant
thereto as soon as the Writ Petition (C) No.9405 of 2018, seeking
direction to the Delhi Development Authority to sanction the building
plans of the petitioner college, is decided.
18. The respondent No. 1 that is the Directorate of Higher
Education submits that the petitioner college is not entitled to an
intake of 180 students in the BBA LL.B. course as sought by it, for the
reason that it does not satisfy the minimum space requirement as
stipulated in the applicable policy guidelines issued by the respondent
No. 1 on 12.01.2016 which mandates a minimum built-up area of 4.5
sqm, as per standard clause 1 (1.1) (iii) (a), which reads to the effect:
"a. For the programmes within the purview of GGSIP
University such as BBA, BCA, B.Com &. BJMC, the
Institute would be required to have built-up space in the
ratio of 4,25 sqm. (all inclusive per student). For LLB, the
built-up space in the ratio of 4.5 sqm. (all inclusive per
student) till specific space factor is defined by Bar Council
of India. For B.Voc, the built up space in the ratio of 5.0
sqm. (all inclusive per student)"
19. The respondent No. 1 submits that the plain reading of clause 1
(1.1) (iii) (d) of the policy guidelines contemplates a situation wherein
the norms, if available precisely laid down by statutory body, for a
program would be made applicable in the matter of consideration of
the grant of NOC and the respondent No. 1, i.e., Directorate of Higher
Education and submits that the Bar Council of India has not laid down
any norms with regard to the space requirements for the conduct of the
BBA LL.B. course and on the contrary the Bar Council of India has
under the Rules of Legal Education, 2008 governing inter alia
inspection of universities for recognizing degrees in law, laid down
under section 7(1)(h) and 7(1)(i), 24(1)©(iii), 49(ag), 49(ad) of the
Advocates Act, 1961 in Para 3 of Schedule III, expressly provided as
under:
"What is the adequate space for the said purpose shall be
decided by the respective authority of the University under
the regulation as guided by the UGC",
(emphasis supplied)
The respondent No. 1 has thus submitted that it is therefore
apparent beyond any iota of doubt that the minimum space
required for conducting a course would be prescribed by the
policy guidelines of 12.01.2016 No.DHE-4(60)/Policy/ggsipu/2014-
15/5890-5904 and in any event as has been submitted on behalf of
the respondent No. 3 during the hearing on 29.07.2019, any
prescription by the Bar Council of India with respect to space is
only, the minimum requirement and the institution concerned will
be required to adhere to the space requirements laid down by the
University of the State government. The respondent No. 1 has
further submitted that the inspection report of the Bar Council of
India dated 25.05.2019 itself reveals that the petitioner has
insufficient classrooms namely 27 as against the requirement of 29
and the shortage is made up by utilizing spaces such as the
committee halls and the auditorium and that the said report of the
Bar Council of India further records the assurance given by the
Director of the College that it would be constructing additional
classrooms in a short while to make up the paucity of space.
20. The respondent No. 1 has further submitted that despite the
undertaking given by the petitioner at the time of grant of the ad
interim order on 25.06.2018 in Writ Petition (C) No. 6698 of 2018
when the petitioner was permitted an intake of 180 students for
counselling in the BBA LL.B. course, the petitioner has failed to
comply with that undertaking and the shortfall continues till today.
The respondent No. 1 further submits that owing to the inability of the
petitioner to comply with the undertaking the admission of 60
additional students of the petitioner is illegal and that the said
admissions are liable to be cancelled and that it is unfortunate that the
petitioner seeks to imperil the future and careers of students, by
making admissions beyond the permissible optimum capacity, in order
to maximize its commercial gains.
21. Inter alia the respondent No. 1 has submitted that the petitioner
contrary to the undertaking given by the petitioner to the Court on
25.06.2018 in W.P. (C) 6698/ 2018 now seeks to contend that it be
granted an intake of 180 students for the BBA LL.B. course based on
the letter of the respondent No. 3 dated 23.05.2019 and that such
conduct of the petitioner disentitles it to the grant of any relief. The
respondent No. 1 has reiterated that the respondent No. 3 only
assesses and lays down the minimum space requirement and the
prescription by the respondent No. 1 will be binding, with regard
to the minimum requirement of space.
22. The respondent No. 1 has further submitted that the reliance
placed by the petitioner on Jaya Gokul Educational Trust v.
Secretary Government of Higher Education & Ors (2005) 5 SCC 231
is entirely misplaced and has no application to the facts of the case and
that in the said judgment there was an interpretation of the provisions
of the All India Council for Technical Education Act,1987 and it was
laid down that, once an approval has been granted by the AICTE
under the said Act and Regulations framed thereunder, no further
approval of the State Government was necessary.
23. The respondent No. 1 submits that in the facts of the present
case however, it is apparent from a reading of the Rules of Legal
Education, 2008 framed under the Advocates Act, 1961 as referred to
herein above, that the primacy in the matter of assessment of space, is
given to the norms laid down by the University. The respondent No. 1
has further submitted that clause 3(i)(b) of Statute 24 of the
respondent University which is framed in exercise of the power under
section 26 (2) of the Guru Gobind Singh Indraprastha University Act,
1998 itself prescribes the grant of NOC by the State Government as a
mandatory pre-condition of affiliation to any desirous college and
institution. The respondent No. 1 has the submitted that the
petitioner's contention is misconceived both in fact and law and
therefore merits dismissal.
24. The respondent No. 2 the Guru Gobind Singh Indraprastha
University submits that the impugned order dated 19.7.2019 issued by
the respondent No. 1 that is the Directorate of Higher Education
suffers from no illegality or infirmity in as much as the petitioner
college does not have the adequate space to accommodate the
additional intake of 60 students for the BBA LL.B. course. The
respondent No. 2 further submits that it is an admitted fact that the
petitioner does not have the adequate space to accommodate the
additional intake of 60 students and the additional intake of 60
students made as an interim measure through its undertaking dated
25.06.2018 has till date not been fulfilled by the petitioner and has
been duly considered by the JAC in its report dated 19.06.2019 and by
the Scrutiny Committee in its decision dated 14.05.2019.
25. The respondent No. 2 has submitted that the Scrutiny
Committee and JAC report for the year 2019-20 were deliberately not
annexed with the petition by the petitioner and had been handed over
during the proceedings by the petitioner on the Court query and that
the petitioner had the suppressed the minutes of the meeting of the
Scrutiny Committee held on 14.05.2019 at 11 AM to scrutinize the
proposal submitted by the institutes including the petitioner for grant
of professional admission for the act affiliation for the academic year
2019-20 have been placed on record by the respondent No. 2 which
indicates that for the BBA LL.B. integrated 5 year course the intake
for the academic year was 2018-19 was 180 and the intake applied for
2019-20 was 180 and that the recommendations of the Scrutiny
Committee were to the effect:
"
which indicates that for the year 2019-20 the recommendations for
intake by the Scrutiny Committee for the petitioner was only 120 with
it having been specified to the effect that the institute in the last
academic year had given an undertaking to increase, construct
additional space for accommodating 180 students of the BBA LL.B. to
make up the shortfall of mandatory space required for strength of 180
students of the BBA LL.B. and that this Court had allowed the intake
of 180 students for that year provisionally and that since no additional
space has been provided to accommodate the strength of 180 students
the Committee was constrained to recommend only an intake of 120
students in the area available with the institute.
26. During the course of submissions made on behalf of the
respondent No. 3, that is the Bar Council of India, it was
contended that with respect to space the prescription by the Bar
Council of India was only the minimum requirement and that the
institution concerned has to adhere to the space requirements laid
down by the University of the State Government.
27. The Bar Council report indicates that as per requirement of the
number of students only 27 rooms were available as of now and that
the shortage is done up in relation to the requirement of 29 classrooms
as per the number of students by making arrangements of the classes
in accommodation like committee hall and auditoriums and that the
director had also informed the representatives of the Bar Council of
India that the institute was going for construction of more classrooms
and would be able to accomplish the requirement in a short while. The
report of the Bar Council of India reads to the effect:
" The library has good space and large number of books.
It must keep it up large number of periodicals including
online journals. In all, it's a rich library. As per
requirement of the number of students 29 class rooms are
required but there are only 27 rooms available as of now.
The shortage is done up by making arrangements of the
classes in accommodation like committee hall and
auditoriums. Also the Director informed us that they are
going for construction of more class rooms and will be
able to accomplish the requirement in a short while."
28. The contention that is raised on behalf of the petitioner is to the
effect that the legal aspect which requires determination is whether in
a case of conflict between the recommendation of the approval for an
intake of students by a statutory body that is the respondent No. 3 that
is the Bar Council of India as in the instant case and recommendation
of approval by the State government that is the respondent No. 1
through its Directorate of Higher Education and the University that is
the respondent No. 2 Guru Gobind Singh of Indraprastha University in
this case, which of the recommendations/approval would have an
overriding effect and would prevail.
29. The JAC report in relation to the institution reads to the effect:
30. On behalf of the respondent No. 3 that is the Bar Council of
India it has been submitted that in terms of section 49(1)(d) the
Advocates Act, 1961 the Bar Council of India is empowered to make
rules with regard to laying down standards of legal education to be
mandatorily observed by law colleges in India as well as for the
inspection of the Law Colleges for the same. Inter alia the Bar
Council of India submits that it is solely responsible to promote legal
education and lays down standards of such education in consultation
with the universities in India imparting legal education and the State
bar Council and that in relation thereto the Rules of 2008 (Part IV of
BCI Rules) were framed for the entire country under section 7(1)(h)
and (i), (m), 24(1)(c)(iii) and 3(a), 49(1)(af),(ag) and (d) of the
Advocates Act, 1961,
The Bar Council of India, Part IV Rules of Legal Education
Chaper-II standards of professional legal education prescribes
to the effect:
"11. Minimum infrastructure
Any institution conducting legal education by running
either of the law degree courses or both leading to
conferment of graduate degree in law on successful
completion of the course shall have minimum standard
infrastructure facility stipulated by the Bar Council of India
specified in Schedule III of these Rules.
The University shall ensure that all its Centres of Legal
Education under the University maintain the standard
infrastructure and other facilities for the students to
suitably impart professional legal studies."
31. Reliance was placed on behalf of the respondent No. 2 on the
verdict of the Hon'ble High Court of Delhi in Rahul Dhaka Vikas
Society & Anr v. Guru Gobind Singh Indraprastha University & Ors
2001(58)DRJ290(DB) with the specific reference to observations
therein to the effect:
11. At this stage, for the purpose of answering the
aforesaid question, one may point out that the
University or the examining bodies may have their
own rules for grant of affiliation. In the instant case
itself the University which is also a creature of Statute
namely the Indraprastha Vishwavidyalaya Act, 1998
is regulated by the provisions of the said Act. It has its
own provisions for grant of affiliation. We may note
the provisions of this Act relevant to this context.
Preamble to the Act reads to say that the Act is
enacted to establish and incorporate an affiliating
and teaching University at Delhi to facilitate and
promote studies, research and extension work in
emerging areas of higher education with focus on
professional education, for example engineering,
technology, management studies, medicine,
pharmacy, nursing, education, law, etc., and also to
achieve excellence in these and connected fields and
other matters connected therewith or Incidental
thereto. University is defined in Section 2(za) to mean
the Indraprastha Vishwavidyalaya as incorporated
under this Act. Section 4(2) stipulates that no college
or Institution situated within the jurisdiction of the
University shall compulsorily be affiliated to the
University, and affiliation shall be granted by the
University only to such college or institution as may
agree to accept the Statues and the Ordinances. Thus
grant of affiliation to an institution is the discretion of
the University, Section 5 lays down powers of the
University and Sub-section 33 thereof provides that
University and Sub-section 33 thereof provides that
University has the power to prescribe the code of
conduct for managements of affiliated colleges and
institutions. Section 21 of the Act provides for the
Board of Affiliation which shall be responsible for
admitting colleges of and institutions to the privileges
of the University. Section 25 of the Act enumerates the
matters which Statutes may provide and Section 26
prescribes the procedure as to how Statutes are to be
made. Section 27 deals with Ordinances and Section
28 deals with Regulations. Thus before an institution
is granted affiliation, the Board of Affiliation is to be
satisfied that such institution would conform to the
provisions of Act, Statutes, Regulations which, inter
alia, provide for standards of teaching, examinations
and output characteristics of its graduates. The
affiliation is not compulsory or automatic and it is
within the discretion of the Board of Affiliation or for
that matter the University. University as an examining
body issues the degrees to the successful students in
the exams who belong to affiliated institutions. Thus
any institution which is affiliated to the University, its
students are given the degrees of the University on
passing the concerned exams. Therefore, it is the right
of the University to ensure the concerned institution
conforms to all standards set by its Act. Statutes,
Ordinances and Regulations because ultimately the
students of such a institution would get the degrees/
certificates of the University.
12. It is, keeping in view the provisions of the
Indraprastha Vishwavidyalaya Act, 1998 that
provisions of Section 16 of the NCTE Act are to be
given an interpretation. If the interpretation as
suggested by Institute is given, following would be the
consequences :
a) Grant of recognition would mean grant of automatic
affiliation with any University.
b) Depriving the University of its power to give
affiliation or refuse affiliation.
c) Possessed with the order of recognition and
institution can go to any University for affiliation. In
other words, it would be the sole prerogative of the
institution to decide the University with which it
wants to be affiliated and such University has no
choice but to grant affiliation.
d) University will have to grant affiliation even if the
particular institution does not conform to the
standards or meets the requirements of the Act,
Statutes, Ordinances and Regulations of that
University.
13. Naturally, such an interpretation as suggested by
the institute which leads to the aforesaid appalling
and blighting consequences and may have effect of
destroying the very autonomy of an University and
may give license to an institution to violate the
provisions of the Acts, Statutes, Ordinance etc. of the
University with impunity, cannot be accepted. Merely
because the NCTE Act is a Central Statute, does not
mean that it has to be interpreted in a manner which
destroys the very fabric and edifice of the University.
Therefore need is to interpret the provisions of the
two Acts, one Central and other State, harmoniously
so that both are able to survive in their respective
fields and also able to achieve their respective
objectives. It is only when the provisions of the State
Act are repugnant to that of Central Act that the
provisions of State Act have to give way to the
provisions of Central Act. Article 254 of the
Constitution of India deals with the situation where
there is inconsistence between laws made by the
Parliament and laws made by the legislatures of
States interpreting the principle of repugnancy
contained in this Article, following principles can be
culled out from various judgments :
1. The State law does not become void as soon as the
Union Parliament legislates with respect to the same
subject. There is nothing to prevent the State
legislature to legislate with respect to a Concurrent
subject merely because there is a Union law relating
to the same subject, Article 254(2) is attracted only if
the State law is 'repugnant' to the Union Act, which
means that the two cannot stand together. The
doctrine of 'occupied field' has no application in the
interpretation of the present Article.
2. There is no question of applying Article 254, unless
the State law is, in its 'pith and substance' a law
relating to the Concurrent List. If it is covered by an
Entry in the State List, but only touches the
Concurrent List incidentally, there is no application
of Article 254.
3. The onus of showing the 'repugnancy' and the extent
thereof is on the party who attacks the validity of the
State law."
ANALYSIS
32. On a consideration of the entire available record and
submissions addressed on behalf of either side, the Court is of the
considered view that the prayer made by the petitioner cannot be
granted in as much as it has been brought forth through the
contentions that have been made on behalf of either side that the Bar
Council of India, i.e., the respondent No. 3, through its rules provides
for minimum standards of legal education and the grant of temporary
extension of approval of affiliation to the petitioner Institute for
running the 5 year BA LLB Hons and BBA LLB Hons. course with an
intake of 3 sections of 60 students in each section in each course for
the academic year 2019-20 was and is subject to the conditions as
communicated to the petitioner by the letter of the Bar Council of
India dated 25.05.2019. The said letter clearly provided to the effect
that :
"The University/ College is directed to also fulfill the other
conditions stipulated as per Legal Education Rules 2008 and by
the Committee Failure of which may lead to subsequent
necessary and proper action being taken in this regard."
33. The policy guidelines for the issuance of the NOC to the new
and existing institutions situated in confirming/nonconforming areas
and allied matters related to self-financed institutions affiliated to the
respondent No. 2 as communicated by letter dated 12.01.2016 by the
Directorate of Higher Education to the respondent No. 2 itself
provides vide clause 1(1.1)(iii) to the effect that the covered area of
the building in which the courses proposed to be as follows:
"For the programmes within the purview of GGSIP University
such as BBA, BCA, B.Com & BJMC, the Institute would be
required to have built-up space in the ratio of 4.25 sqm. (ail
inclusive per student). For LLB, the built-up space in the ratio of
4.25 som. fall inclusive per student) till specific space factor is
defined by Bar Council of India. For B.Voc, the built up spare in
the ratio of 5.0 sqm. (all inclusive per student)." ,
and vide clause 1(1.1)(iii) it was provided to the effect:
"d. Wherever the approval is required from any statutory body,
the norms prescribed. If available precisely, from that body for that
program would have to be adopted mutalis mutandis",
34. Further vide clause h, it is provided to the effect:
"The built-up area as assessed and verified by the JAC during
their visit to an institute in conforming area and mentioned in their
report may be considered for granting the course(s)/ intake to that
Institute, subject to the maximum limit as prescribed. Considering
the fact that any building in use may have common operational
areas like Basement, stairs etc., JAC may be advised not to take
covered area strictly as built up area, Instead, the built up area as
certified by the local body/ architect may be taken as final." ,
35. Further clause 11 provides to the effect:
"11. Other clearances
11.1. All the Institutions should also submit Completion Certificate,
Structural Safety Certificate, Earthquake Resistance Certificate
and Fire Safety Certificate from the relevant authorities/
departments, along with the report of the JAC duly recommended
by the University, as per the provisions contained in the GGSIP
Act, 1998. The University may ensure that they comply with the
U.GC. Regulation 2009 notified on 20.02.2010 and amendments
thereof notified on 26.03.2012.",
36. Clause 4.2 which provides for the validation of NOC in
nonconforming area reads to the effect:
"The revalidation of NOC for the courses running in Institutes
located in non-conforming areas like Lai Dora /Extended Lal Dora
will be given on annual basis till notification of MPD 2021 subject
to the condition that they are under consideration of DDA for
regularization in MPD 2021. However, till that time no addition
and alteration shall be allowed in the existing infrastructure as on
date which is annexed as per the annexure-I (as per academic year
2014-15). Addition of new courses, additional intake will be
allowed within the existing infrastructure only on the
recommendation of the JAC. Space norms will be applicable as
mentioned in section l.l(ill)(a) to l.l(iii)(d). This will further be
subject to the condition that the Institutions would procure a
communication from DDA clarifying that the institute is located
either in the conforming area or area proposed for inclusion as
institutional land or area proposed for regularization as per policy
of DDA. Further documentary -proof of legal possession of the
premises will be provided."
(emphasis supplied)
37. Further the letter dated 19/07/2019 issued by the, respondent
No.1, i.e. Directorate of Higher Education, to the respondent No. 2
vide clause h categorically state stipulates to the effect:
"All the statutory compliances' and removal of all; other
deficiencies/ shortcomings/suggestions noticed in the JAC report
must be complied with by the concerned institute latest by 30 th
September, 2019. It is emphasized that the required precaution
be taken immediately and all deficiencies removed in the given
time frame failing Which appropriate action as per
guidelines/policy should be taken by GGSIPU, under Intimation
to the Department. The GGSIP University must ensure the
compliance of the same within stipulated time period and get the
institute again inspected by the JAC and submit the compliance
report to this department by October, 2019 in respect of all the
deficiencies shortcomings/suggestions given in the JAC report
forwarded by GGSIP University vide letter dated 27.06.2019
referred above."
and categorically grants an intake of 120 students for the 5 years BBA
LLB course for the academic year 2019-20. The Rules of Legal
Education, 2008 made by the Bar Council of India in consultation with
universities and State Bar Councils categorically provide vide
Schedule III qua minimum infrastructural furniture required in a
Centre for legal education for applying permission to run a law course
with affiliation from GGSIP University, and vide Clause 3 thereof
stipulates freehold and leasehold property as under:
"3. Freehold or Leasehold Property; Each Centre of Legal
Education providing education in law either in the Department
of law of a University or its constituent or affiliated college
must have either on freehold or on long leasehold land adequate
to provide academic buildings, library, indoor and outdoor
sports facilities, halls of residences for male and female students
separately, as the case may be, in the name of the Centre of
Legal Education or organization running the Centre of Legal
Education. However, lease in the name of the Centre of Legal
Education shall be for a period of not less than ten years. What
is the adequate space for the said purpose shall be decided by
the respective authority of the University under its affiliation
regulation and as guided by the UGC.
Provided that sufficient land and adequate floor space area
completely and exclusively devoted for a Centre of Legal
Education, based on the size of its student population, faculty
requirement infrastructure facilities. Library space requirement,
indoor and outdoor games facilities and other requirements can
be considered sufficient accommodation in compliance with this
clause, for the purpose in a multi-faculty Institution on land
possessed by the Management of a Society/ Trust/ Non Profit
Company running multi-faculty institutions in a metropolitan or
in a class 1 city." (emphasis supplied)
thus stating categorically that what is the adequate space for the said
purpose that is the imparting of law courses shall be decided by the
respective authority of the University under the regulation as guided
by the U.G.C.
38. In the instant case the JAC report which is not refuted by the
petitioner as well as the inspection report conducted by the Bar
Council of India brings forth that there is inadequate space for
conducting of two classes. The reliance placed on behalf of the
petitioner on clause 1.iii (d) of the policy guidelines dated 12.06.2019
of the respondent no.1 have to be read in harmony with the policy
guidelines of the respondent no.1 for issuance of NOCs to the
new/existing institutions situated in conforming/non-conforming areas
and allied matters related to self-finance institutions affiliated to
GGSIP University for the year 2016-17 and onwards and thus to
contend that the norms prescribed by the Bar Council of India
apply mutatis mutandis and when the approval had been accorded by
the Bar Council of India the same ought to suffice and hold sway even
for the space requirement of a course, cannot be accepted.
39. Further, the said rules of the Bar Council of India itself stipulate
that the space requirements have to be in accordance with the
regulations as guided by the respective authority of the University
under the regulations guided by the UGC and the Rules of 2008 of the
Bar Council of India which in the instant case bring forth that there
has been a non-conformity of the space guidelines and criteria for
conducting of the BBA LL.B. course for an intake of 180 students.
Furthermore, it cannot be overlooked that the undertaking given by the
petitioner dated 26.05.2018 in W.P.(C) No. 6698/2018 is yet to be
complied with by the petitioner.
40. The contention of the petitioner that it shall comply with the
said order dated 25.06.2018 as soon as W.P.(C) No.9405/2018 seeking
direction to the DDA to sanction the building plans of the petitioner
college is decided does not aid the petitioner in any manner in as much
as the records of the said petition bring forth that the said petition
which is sub judice as brought forth vide proceedings dated
05.08.2019 indicates that even the necessary party the concerned
Municipal Corporation of Delhi which the DDA sought to contend is
the body that could look into the aspect of sanction of increase in the
construction area was not even made a party by the petitioner and has
been directed to be arrayed vide order dated 05.08.2019 as a necessary
party to the lis.
41. Reliance that has thus been placed on behalf of the petitioner on
the verdicts relied upon i.e. State of Tamil Nadu v. Adhiyaman
Educational and Research Institute; [1995 (4) SCC 104], Jaya Gokul
Educational Trust V. Commissioner & Secretary to Government of
Higher Education Department; [ 2005 (5) SCC 231] and Maa
Vashno Devi Mahila Mahavidyala v. State of Uttar Pradesh and
Ors; [ (2013) 2 SCC 617] is wholly misplaced in the facts and
circumstances of the instant case in as much as the Bar Council of
India Rules of Legal Education Part IV and the Policy Guidelines of
the respondent no.1 Directorate of Higher Education have to be read in
harmony and are not in conflict with each other for as per the letter
dated 25.05.2019 of the Bar Council of India granted temporary
extension of approval of affiliation for running five years BA, LL.B
(Hons) course and five year BBA LL.B (Hons.) course with intake of
three sections of 60 students in each section in each course for the
academic year 2019-20, and the University/College has been directed
to also fulfil the other conditions stipulated as per Legal Education
Rules 2008.
CONCLUSION
42. The petition and accompanying applications are thus declined.
43. Nothing stated hereinabove shall however amount to any
expression on the merits or demerits of WP (C) 6698/2018 & WP (C)
9405/2018.
ANU MALHOTRA, J.
th
AUGUST 13 , 2019/ sv
