Jammu & Kashmir High Court
Amrit Ett Institute vs Ut Of Jammu And Kashmir And Ors on 19 March, 2021
Sr. No. 110
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
WP(C) 1961/2020
CM No. 7424/2020
Reserved on:- 09.03.2021.
Pronounced on:- 19.03.2021.
Amrit ETT Institute ..... Petitioner (s)
Through :- Mr. Sudershan Sharma, Advocate
V/s
UT of Jammu and Kashmir and ors .....Respondent(s)
Through :- Mr. B.S.Bali Advocate
Ms. Palvi Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Per:- Sanjay Dhar-J
1. Through the medium of instant petition, the petitioner-Institute has
challenged order dated 07.08.2020 passed by respondent No.4 whereby a
decision has been taken to consider the case of the petitioner-Institute for grant
of affiliation for the next session i.e. 2020-22 subject to the production of fresh
NOC from the Government. A direction, asking the respondents to grant
affiliation to the petitioner-Institute for running the Diploma in Elementary
Education course during the Session 2019-21 or, in the alternative to pay the
compensation to the tune of Rs.50.00 lacs to the petitioner-Institute, has also
been sought.
2 WP(C )1961/2020
2. It is the case of the petitioner that it is an Institute established in
accordance with law for imparting Elementary Teachers Training Course
which is now called as „Diploma in Elementary Education‟. It is averred that
after fulfilling the requisite norms and guidelines, the petitioner-Institute was
granted NOC by the Government which was valid for one academic session,
whereafter the same came to be extended from time to time on deposition of
requisite fee. It is the case of the petitioner-Institute that it has been granted
NOC by the Government for the session 2019-21 as well, whereafter it
approached the respondent-Board i.e., J&K Board of School Education for
grant of affiliation for the session 2019-21. It is alleged that the respondents
did not conduct any inspection of the petitioner-Institute for more than one
month and after conducting the inspection, certain deficiencies were pointed
out which were immediately rectified by the petitioner-Institute. It is further
averred that the petitioner-Institute was permitted to participate in the
counseling process provisionally along with other nine Institutes in terms of the
communication dated 20.12.2019 issued by respondent No.4.
3. The Affiliation Committee is stated to have considered the matter
pertaining to the petitioner-Institute on 10.02.2020 and it was observed that the
inspection team had recommended that the affiliation be granted to the
petitioner-Institute for the session 2019-21 with a condition that it will remove
all the deficiencies pointed out by the Inspection Committee within a period of
two months and, accordingly, an inspection team was also constituted to verify
status regarding removal of the deficiencies. The Affiliation Committee
deferred the conditional recommendations of the inspection team so as to get
the matter regarding removal of deficiencies verified through a team of
3 WP(C )1961/2020
officers, to be appointed by the Chairman. It is averred by the petitioner-
Institute that it kept on approaching the respondents a number of times as the
career of 120 candidates, who were allocated to the petitioner-Institute, was at
stake, but no action was taken by the respondents compelling the petitioner-
Institute to file a writ petition bearing WP(C) No.1080/2020, wherein it was
pleaded that the petitioner-Institute had removed the deficiencies.
4. Vide order dated 16.07.2020 passed by this Court in the aforesaid
writ petition, the respondents were directed to determine the eligibility of the
petitioner-Institute for grant of affiliation for the session 2019-21 within a
period of two weeks. It is alleged that in spite of this order, the matter was not
considered by the respondents and ultimately, the impugned order came to be
passed whereby it was provided that the case of affiliation of petitioner-
Institute will be considered for the session 2020-22 and not for the session
2019-21.
5. The aforesaid decision of the respondents has been challenged by
the petitioner on the grounds that the impugned order is actuated with mala fide
as so many other similarly situated Institutes have been granted affiliation by
the respondents; that despite the petitioner-Institute making good all the
deficiencies, the respondents did not constitute an inspection team and did not
undertake the requisite inspection which they were duty bound to do which
resulted in deferring of petitioner‟s case in the meeting of the Affiliation
Committee held on 10.02.2020; that the Inspection Committee was deputed by
the respondents only after a period of five months and it was reported by the
said Committee that the deficiencies have been removed, but still then, the
respondents did not grant the affiliation in favour of the petitioner-Institute for
4 WP(C )1961/2020
the session 2019-2021; that the petitioner-Institute has invested huge amount of
money and in case the affiliation is not granted in favour of the
petitioner-Institute for the session 2019-21, it will incur huge losses and even
career of the students, who have been allocated to the petitioner-Institute,
would be put to risk as these students continue to receive training from the
petitioner-Institute despite the order of withdrawal of students having been
made by the respondents.
6. Respondents No. 2 to 4 have resisted the writ petition by filing
objections thereto. In their objections, they have contended that despite having
availed the repeated opportunities, the petitioner-Institute failed to remove the
deficiencies pointed out by the members of the inspection team of the Board
before the cut-off date fixed for removing of such deficiencies, i.e., 27.12.2019,
as a result of which, the petitioner-Institute was not granted the affiliation by
the Board for the session 2019-21. It has been further averred that the
counseling process for the session 2019-21 was closed on 27.12.2019 and
thereafter the class work for the said session had started from 27.01.2020.
Thus, keeping in view the academic career of those students, who had opted for
the petitioner-Institute, they were directed to be shifted to the other affiliated
Institutes based on their second and third choice. This was done on the basis of
decision by the Affiliation Committee of the Board and, accordingly, vide
Notification dated 14.02.2020, the students allocated to the
petitioner-Institute were shifted to the other affiliated Institutes.
7. It is further case of the respondents that when the petitioner-
Institute applied for grant of affiliation for the session 2019-20, an inspection
team was deputed to visit the spot. The petitioner-Institute was inspected on
5 WP(C )1961/2020
08.05.2019 and certain deficiencies were found which were directed to be
removed within a period of two months. The Affiliation Committee again met
on 25th October, 2019 to consider the cases of ETT Institutes including the case
of the petitioner-Institute. However, even by that date, the deficiencies pointed
out by the inspection team were not removed by the petitioner and a further
time of 15 days‟ was given to the Institutes including the petitioner-Institute to
remove the deficiencies. The last date for admission and counseling was
extended up to 27.12.2019 and the petitioner-Institute along with other
Institutes, who were having deficiencies were provisionally allowed to
participate in the counseling process subject to grant of affiliation by the
Affiliation Committee of the Board. It is further contended by the respondents
that the Committee again held a meeting on 10.02.2020, but, by that time, the
petitioner-Institute had not removed the deficiencies as pointed out by the
inspection team. Accordingly, the case of the petitioner-Institute was deferred
and it was further resolved that since the class work for the session 2019-21
had already started on 27.01.2020, therefore, the students, who had opted for
the petitioner-Institute during counseling be shifted and allotted to the other
Institutes.
8. We have heard learned counsel for the parties and perused the
material on record.
9. Certain facts, which have not been disputed by the parties, are
required to be noticed. The petitioner-Institute was granted NOC by the
Government for the academic session 2019-21, whereafter it applied for
affiliation to the respondents. It is not in dispute that on 08.05.2019, certain
deficiencies were pointed out by the Inspection Team with regard to the
6 WP(C )1961/2020
petitioner-Institute, which it was asked to remove within two months. It is also
not in dispute that the respondents granted provisional permission to the
petitioner-Institute to participate in the counseling process vide its notice dated
20.12.2019. This was subject to grant of affiliation by the State Affiliation
Committee of the Board. The aforesaid provisional allotment of candidates was
withdrawn by the Board vide its Notification dated 14.02.2020. It is not
disputed that the case of affiliation pertaining to the petitioner-Institute was
considered by the State Affiliation Committee in its meeting held on
10.02.2020 in which it was resolved to defer the case of the petitioner-Institute
so as to get the status regarding removal of deficiencies verified through a team
of officers. A further decision was taken that the students, who have opted for
the said Institute, would be shifted to other Institutes as per their second and
third choice. It appears that the Notification dated 14.02.2020 (supra) has been
issued by the respondents in pursuance of a decision taken in the Committee‟s
meeting held on 10.02.2020.
10. The contention that has been raised by the petitioner-Institute is
that it had removed the deficiencies well in time and, therefore, it was
obligatory on the part of the respondents to subject the petitioner-Institute to
another inspection and thereafter consider its case and if, at all, any delay has
occasioned in this regard, it is attributable to the respondents
11. In order to determine the merits of this contention of the
petitioner-Institute, we need to take note of the relevant provisions of the J&K
School Education Rules, 2010. Clauses (a) and (b) of Rule 4 of the said Rules
are relevant to the context and the extracts of same are reproduced as under:
7 WP(C )1961/2020
"a) After receipt of the application, the competent authority or any
official/s authorized by him for the purpose shall, within 15 days from
the receipt of the application refer the matter for spot inspection of the
said institution, or for examination of the project/proposal (as the
case may be) vis-a-vis the norms of infrastructure, equipment, staff
and other requirements, as laid down under rules 5, 6 and 11 of these
rules, to the committees comprising following officers/officials;
namely:
1 In case of ETT/NIT a) Joint Director
Institutions b) Chief Education
Officer
c) Jt. Secretary/Deputy
Secretary/Assistant
Secretary, JKBOSE
2 In case of High and a) Principal of a
Higher Secondary Government Higher
Schools Secondary, School
b) Assistant Secretary,
JKBOSE
3 In case of Middle Schools a) Zonal Education
running upto 8th Standard Officer
b) Headmaster of
Government High
School
(b) Inspection procedure: The following procedure shall be followed
for inspection of the Institutes; namely:
a) Application for affiliation/recognition as per devised
proforma, complete in all respects shall be submitted
online on JKBOSE, website.
b) JKBOSE shall constitute an inspection committee within
10 days of receipt of application".
(c) in case of any deficiency, JKBOSE shall communicate
the same to the applicant within 7 days, otherwise it shall
be presumed fit for inspection.
(d) As and when applicant informs the fulfillment of
deficiency, the inspection team shall be constituted within
10 days for conduct of inspection.
(e) The inspection committee shall submit its report within
a period of 15 days from the date of appointment.
(f) The competent authority shall examine the report so
received and take final decision thereon within 30 days
and convey the same to the educational agency.
(g) The total time involved would be a maximum of 75
days.
8 WP(C )1961/2020
(h) Affiliation/Recognition committee shall meet every 3rd
Monday of the month. In case, the earmarked day is a
holiday, the meeting shall be held on next working day.
(i) All cases for affiliation/recognition shall be submitted
in respect of both Kashmir/Jammu province three months
prior to the commencement of sessions.
(j) No provisional approvals shall be granted.
(k)...........................
(l)..............................
(m)..............................
(n)..............................."
12. From a perusal of the aforesaid Rules, it is clear that once an
application for affiliation is made, the matter is to be referred by the
respondents for spot inspection of the Institute within 15 days from the date of
receipt of such application and an inspection team is to be constituted within 10
days. The Rules further provide that in case of any deficiency, the same has to
be communicated to the applicant within 7 days. Sub-clause (d) of Clause (b)
of Rule 4 of aforesaid Rules provides that when the deficiencies are pointed
out, the applicant has to inform the fulfillment of the deficiency, whereafter the
inspection team is to be constituted by the respondents within 10 days for
conduct of the inspection.
13. It is the admitted case of parties that certain deficiencies were
pointed out in the case of petitioner-Institute. The question arises whether the
petitioner-Institute, after removal of the said deficiencies, gave any intimation
about the same to the respondents. Sub-clause (d) of Clause (b) of the Rules
casts an obligation upon an applicant to inform the Board as and when
deficiencies are made good so that the Board constitutes a team for undertaking
the inspection. It has been vehemently contended by learned counsel for the
9 WP(C )1961/2020
petitioner-Institute that it approached the respondents immediately after
removal of the defects. However, no communication or document in this
regard has been placed on record by the petitioner-Institute to show that it did
approach the respondents informing them about the removal of deficiencies. In
fact petitioner-institute vide its supplementary affidavit has placed on record a
copy of the abstract of decision of Sub Committee of State Affiliation
Committee dated 24.10.2019, according to which certain deficiencies are
shown outstanding against the name of petitioner-institute, which means that
even on said date, the deficiencies were not removed by the petitioner.
14. As per stand of the respondents, the Affiliation Committee of the
Board in its meeting held on 25.10.2019 granted provisional permission to
petitioner-Institute to participate in the counseling process, subject to grant of
affiliation by the Affiliation Committee of the Board and a further time of 15
days was given for removal of deficiencies. This position is not disputed by the
petitioner-Institute. Having been accorded the provisional permission subject to
removal of deficiencies, it was all the more incumbent upon the petitioner to
inform the respondents about the removal of deficiencies, which as
per the material on record, it has not done. Therefore, there was no
corresponding duty cast upon the respondents to undertake the inspection of
petitioner-institution.
15. From a perusal of the documents placed on record by the parties
with their pleadings, it transpires that it is only when the State Affiliation
Committee met on 10.02.2020, it was brought to the notice of the said
Committee that the petitioner-Institute had removed the deficiencies. The
Committee immediately recommended the constitution of inspection team and
10 WP(C )1961/2020
having regard to the fact that classes had already started on 27.01.2020, the
Committee further resolved that keeping in view the academic career of the
students allocated to the petitioner-Institute, they may be shifted to some other
affiliated Institutes. The record further shows that the Inspection Committee
was constituted vide communication dated 06.03.2020, but due to outbreak of
COVID-19 pandemic, the Committee could not inspect the petitioner-Institute
until 13th July, 2020.
16. Keeping in view the aforesaid position, which has emerged from
the pleadings of the parties and the documents on record, it becomes clear that
the petitioner-institute had not removed the deficiencies until the
commencement of the academic session 2019-21. It had failed to do the
needful within the stipulated period of two months afforded to it pursuant to
inspection dated 08.05.2020 and even after availing further period of 15 days in
terms of Resolution dated 25.10.2019 of the State Affiliation Committee, the
needful was not done. Thus, petitioner-institute has nobody else, but itself to
blame for the delay in removal of deficiencies and consequent loss of chance of
getting itself affiliated for the session 2019-2021.
17. A perusal of Rules governing the field of granting affiliations
makes it manifest that, without removal of deficiencies, there cannot be any
approval to affiliation. Therefore, the respondents were well within their rights
to refuse affiliation to the petitioner-institute for the session 2019-21 as it had
failed to remove the deficiencies before the beginning of academic session.
18. Defending its decision of not according affiliation to the petitioner
for the session 2019-21, the learned counsel for the respondents has submitted
that academic calendar has to be strictly adhered to and when the petitioner
11 WP(C )1961/2020
could not remove the deficiencies before the commencement of class, i.e.,
before 27.01.2020, the respondents were left with no other option, but to
decline the affiliation to the petitioner-institute for the session 2019-21. The
respondents have placed on record copy of the Academic Calendar, which
reads as under:-
S. No. Activities/Events Jammu & Kashmir Divisions.
1 Application for Affiliation/Renewal, 1st Jan to 31st March every year
complete in all respects, on the
prescribed form alongwith fee etc.
2 Admission Notification 1st week of June every year
3 Last date of Receipt of Applications 31st August
for Admission
4 Centralized Admission/Counseling 20th September, to 20th October.
5 Management Seats 31st August
6 Class works and Teacher practice 1st week of Nov. to ending April
7 Preparatory Holidays 1st May to 14th May
8 Exams and Final Teaching Practice 15th May to 14th May
Exam
9 Holidays/summer/winter break 15th June to 31st July.
10 Result Up to 25th August
19. From a perusal of the aforesaid academic calendar, it is clear that
class work has to take place in the first week of November, thus, granting
affiliation to the petitioner-institute after first week of November, would have
resulted in delay in academic session and consequent non-adherence to
academic calendar. Although in the instant case, class work has started on
27.01.2020, yet even by that date also, the deficiencies were not removed by
the petitioner-institute. Any further relaxation on the part of the respondents in
the matter of grant of affiliation to the petitioner-institute would have resulted
in further delay in commencement of academic session.
20. The sanctity of adherence to academic schedule in the matter of
professional and educational courses has been repeatedly emphasized by the
12 WP(C )1961/2020
Supreme Court in a number of cases. In "Chandigarh Administration and
another vs. Jasmine Kaur and ors, (2014) 10 SCC 521", the Supreme Court
has held that there cannot be any compromise with the rule of merit or
principle of strict adherence to time schedule. The aforesaid ratio has been
relied upon and followed by the Supreme Court in a later judgment rendered in
the case of "S. Krishna Sradha vs. The State of Andhra Pradesh, 2019
SCC Online SC 1609."
21. In "Unni Krishnan, JP and ors vs. State of Andhra Pradesh
and ors, (1993) 1 SCC 645", the Supreme Court has unequivocally held that
right to establish an educational institution does not carry within it right to
recognition or right to affiliation. Grant of recognition or affiliation is neither a
matter of course, nor is it a formality. The affiliation has to be as per the
prescribed statutory conditions and their strict adherence by all the concerned.
The conditions of recognition and duly notified directions controlling the
admission process are to be construed and applied strictly. This cannot be
varied from case to case. Time schedule is one such condition specifically
prescribed for admission to Colleges. The Supreme Court in Rajan Purohit &
ors vs Rajasthan University of Health Science and ors, (2012) 10 SCC 770
and Medical Council of India vs Madhu Singh and ors, (2002) 7 SCC 258,
has held that adherence to admission schedule is a subject which requires strict
conformity by all the concerned, without exception. Thus, it is the requirement
of law that there should be strict adherence to the time schedule not only for
the admissions, but even for grant of approval.
22. In the instant case, the petitioner-Institute failed to comply with
the requirements for grant of affiliation within the time schedule, i.e, before the
13 WP(C )1961/2020
beginning of admission process, therefore, it has no right to seek a direction
against the respondents to grant affiliation to it in respect of a course which is
already more than half way through.
23. Learned counsel for the petitioner has made a feeble attempt to
challenge the impugned order on the ground that some other similarly situated
institutes have been granted affiliation by the respondents. The contention has
been denied by the respondents. The petitioner has not backed its contention
with any document. Even otherwise, we have already observed that without
removal of deficiencies prior to commencement of academic session, no
affiliation can be granted. Therefore, even if respondents have granted
affiliation in breach of aforesaid legal position, the same does not give a right
to petitioner to ask for perpetuation of illegality. One wrong does not justify
another wrong. Therefore, the contention of the petitioner is bound to fail.
24. There is yet another aspect of the matter which is required to be
noticed. Rules of 2010, which governs the field of establishment of ETT
Institutes, provide that the affiliation/recognition is to be submitted three
months prior to commencement of session. Sub-clause (i) of Clause (b) of Rule
4 as quoted above is very clear about it. Sub Clause (j) further provides that no
provisional approvals shall be granted. As per the academic calendar produced
by the respondents, applications for affiliation/renewal are to be received from
1st January to 31st March every year and the admission notification is to be
issued in the first week of June every year. In the instant case, as per the case
of the parties, the matter regarding affiliation was considered by the
respondents-Board and the inspection of petitioner-institute was conducted for
the first time on 08.05.2019. Certain deficiencies were pointed out and the
14 WP(C )1961/2020
petitioner was asked to remove them within two months. The Centralized
admission/counseling as per the aforesaid calendar was to be held from
20th September to 20th October. Beyond this period, there was no scope for the
respondents to entertain any request with regard to removal of deficiencies.
Instead of doing so, the respondents went ahead and in its meeting held on
25th October, 2019, it decided to grant provisional permission to the petitioner-
institute and allowed it to participate in the counseling.
25. As already noted, Sub-clause (j) of Clause (b) of Rule 4 clearly
provides that no provisional approvals are to be granted. The respondents by
granting provisional approval to the petitioner-Institute has observed the
aforesaid rule in breach thereby raising false hopes in the mind of the
petitioner-Institute as well as putting at risk the career of a number of students,
who had opted for the petitioner-Institute. This approach of the respondents
was absolutely unwarranted and had no sanction of law. Respondent-Board is
well advised to avoid grant of provisional approvals in future.
26. For the foregoing reasons, we do not find any merit in this writ
petition. The same along with connected CMs is dismissed, accordingly.
(SANJAY DHAR) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
19.03.2021
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable: Yes
RAM KRISHAN
2021.03.23 13:51
I attest to the accuracy and
integrity of this document
