Punjab-Haryana High Court
Shri Ganpati Polytechnic College vs Usha Rani Sharma on 13 March, 2012
Author: Surya Kant
Bench: Surya Kant
HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
****
COCP NO.30 OF 2012 (O&M) Date of Decision: 13.03.2012 **** Shri Ganpati Polytechnic College . . . . Petitioner versus Usha Rani Sharma, IAS, Commissioner, Punjab State Board of Technical Education & Anr. . . . . Respondents **** CORAM: HON'BLE MR. JUSTICE SURYA KANT ****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
**** Present: Mr. Arjun Pratap Atma Ram, Advocate for petitioner Mr. MC Berry, Addl. AG Punjab Mr. Ashok Aggarwal, Senior Advocate with Mr. Mukul Aggarwal, Advocate and Mr. Balwinder Singh, Advocate for respondent No.2 **** SURYA KANT, J {1} This contempt petition alleges willful and deliberate disobedience of the order dated 28th November, 2011 passed in CWP No.21730 of 2010 (Shri Ganpati Polytechnic College v. All India Council for Technical Education & Ors.).
{2} The above-stated writ petition was filed by the petitioner-Institute challenging an order dated 23rd November, 2010 (Annexure P1) passed by the All India Council for Technical Education (AICTE), COCP No.30 of 2012.doc -2- declining admissions in the Diploma programmes at the petitioner- Institute for the year 2010-2011. A direction was prayed to grant approval for the above-stated Academic session and register the students already admitted by the petitioner-College. The writ petition was disposed of vide order dated 28th November, 2011 in the following terms:-
"Counsel for the AICTE states that in view of the fact that the petitioner has applied for regularization of admissions granted in the academic session 2010-11 vide an application dated 21.11.2011, appropriate orders regularizing those admissions shall be passed at the earliest and not later than two weeks from today.
Resultantly, the students of the petitioner Institute shall be allowed to appear in the regular examination commencing from 07.12.2011. However, to enable the students of the petitioner- College to appear in the examination commencing from 07.12.2011, the Punjab State Board of Technical Education is directed to declare their result before the commencement of the examination on 07.12.2011.
Counsel for the AICTE, however, has pointed out a letter dated 15.07.2011 received from the COCP No.30 of 2012.doc -3- Commissioner, Technical Education and Industrial Training, Punjab, Chandigarh pointing out certain deficiencies in the infrastructure of the petitioner college and requesting AICTE to withdraw the approval already granted for the year 2011-12. Suffice it to observe that if the AICTE decides to take any action on the basis of the said letter, it may do so after issuing a show cause notice to the petitioner-Institute and in accordance with law.
With these clarificatory directions, the writ petition, in a way, is rendered infructuous and is disposed of accordingly."
{3} The petitioner-Institute filed one more writ petition bearing CWP No.22703 of 2011 wherein quashing of the orders declining affiliation by the Punjab State Board of Technical Education was sought. The aforesaid writ petition was disposed on 7th December, 2011 without notice to the respondents in the following terms:-
"Since appropriate directions to allow the students of the petitioner-Institute to appear in the examination commencing today, i.e. 7th December, 2011 statedly at 1.30 p.m., have already been issued vide order dated 28.11.2011 passed in the previous writ petition filed by the petitioner- COCP No.30 of 2012.doc -4- Institute, i.e., CWP No.21730 of 2010 (Shri Ganpati Polytechnic College versus All India Council for Technical Education and others) with a further direction to the Punjab State Board of Technical Education to declare the result of the second Semester Examination before the commencement of examinations from today, no separate directions or an order reiterating those very directions need to be passed in this writ petition except a clarificatory direction to respondent Nos.1 & 2 to comply with the order dated 28.11.2011 passed in CWP No.21730 of 2010, referred to above."
{4} The directions issued vide above-reproduced orders to the extent of
- (i) regularization of admission of students in the Academic session 2010-2011; (ii) declaring the result of the students before commencement of the annual examination on 07.12.2011 to enable them to appear in the annual examination; and (iii) actually 'permitting those students to appear in the regular examination commencing from 07.12.2011', have been complied with by the Board.
COCP No.30 of 2012.doc -5-{5} The grievance of the petitioner-Institute, however, is that despite extension of its approval by the AICTE for the Academic year 2011- 2012 vide letter dated 01.09.2011 addressed to the Principal Secretary (Technical Education) Government of Punjab, the students admitted by the petitioner-Institute in the aforesaid session (2011-2012) have not been permitted to appear in the annual examination by the respondents (Board) though they were obligated to do so in terms of the directions issued by this Court, reproduced above.
{6} Respondents No.1&2 have filed their replies/affidavits, respectively. While the first respondent has broadly put the onus to comply with Court directions on the Board authorities, respondent No.2 has come up with the plea that - (i) there is no affiliation granted to the petitioner-Institute by the Board and; (ii) the students admitted by the petitioner-Institute in the Session 2011-2012 do not find any place in the merit list of Joint Entrance Test (JET) - 2011 conducted by the Board and the petitioner-Institute has admitted the students at its own in utter disregard to the Admission Procedure contained in 2011 JET Prospectus (Annexure R2/2). {7} The petitioner-Institute's explanation to the above-noticed objections is that once approval has been granted to it by the AICTE for the session 2011-2012, the Board is duty-bound to affiliate and hold examination of its students in view of the decision COCP No.30 of 2012.doc -6- of the Hon'ble Supreme Court in Jaya Gokul Educational Trust versus Commissioner & Secretary to Government Higher Education Department, Thiruvanathapuram, Kerala State and Another, (2000) 5 SCC 231 and that the Board deliberately excluded the name of the petitioner-Institute amongst the 'recognized Institutes' for JET-2011 and also did not allocate any student to the Institute for admission out of the JET-2011 merit list, hence the petitioner had no choice but to admit the students at its own.
{8} The record reveals that the Commissioner, Technical Education, Punjab vide its letter dated 12.10.2011 (Annexure P11) categorically informed the petitioner-Institute as follows:-
"It is to inform you that vide your letter under reference you have asked to issue notification for the year 2010-11 and 2011-12 for diploma courses. In that regard, it is submitted that your institution has not been issued approval letter by the AICTE. Without AICTE approval the notification cannot be issued. It is requested that after obtaining approval from the AICTE New Delhi, the same be sent to this office so that the notification for admission for the year 2011-12 can be issued."COCP No.30 of 2012.doc -7-
(Emphasis applied) {9} The respondents themselves thus acknowledged the fact that on receipt of AICTE approval, the petitioner-Institute shall be recognized for admissions. The AICTE admittedly extended its approval to the petitioner-Institute for the Academic session 2011- 2012. In fact, the respondents, on receipt of the AICTE approval, made a desperate move to get the said approval cancelled vide the following communication dated 15.11.2011 sent to AICTE (Annexure R2/D):-
"All India Council for Technical Education, New Delhi has issued approval letter for 2011-12 which is sent to this office by Shri Ganpati Polytechnic College on 22.10.2011 to above mentioned college wide [sic] its letter No.F.No.Forth-West/1-481038521/2011/EOA date 01.09.2011. This office has been continuously receiving complaints regarding the Institute. On the complaint of Sh. Ashwani Puri, Treasurer, Saravhitkari Educational Society, New Delhi (Copy attached) this office has ordered inspection of the institute and has received very negative report (Copy attached) about it as the society is running both Engineering college and Polytechnic in the same campus apart from other deficiencies. Based on the deficiencies the Govt. has decided not to issue notification COCP No.30 of 2012.doc -8- for admission for 2011-12. It is requested to withdraw the approval letter issued to the Institute for 2011-12 on the basis of Govt. decision till the deficiencies are removed. It is also mentioned here that this Institute did not have the approval for 2010-11 by AICTE also."
(Emphasis applied) {10}Neither the order, if any, passed by AICTE withdrawing its 'approval' to the petitioner-Institute for the Academic Session 2011- 2012 has been brought on record nor the said approval has in fact been withdrawn so far. In view of the subsisting approval, the Board cannot impose itself as an Authority above the AICTE nor the respondents can be permitted to dig out one or the other lame excuse to wriggle out of their candid admission contained in the letter dated 12.10.2011 (Annexure P11) that "after obtaining approval from AICTE, New Delhi the same be sent to this office so that the notification for admission for the year 2011-2012 can be issued". The afterthought plea that the petitioner-Institute requires separate "affiliation" from the Board, is ex facie misleading and contradicts the Board authorities with their previous stand. {11}The aforesaid plea is also contrary to the decision of the Hon'ble Supreme Court in Jaya Gokul Educational Trust (supra) wherein it is laid down that:-
COCP No.30 of 2012.doc -9-
"...Therefore, the State could not have any "policy"
outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and Regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action."
xxx xxx xxx
"30. Thus, the University ought to have
considered the grant of final or further affiliation without waiting for any approval from the State Government and should have acted on the basis of the permission granted by AICTE and other COCP No.30 of 2012.doc - 10 - relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations."
{12}The first objection taken by the respondents for not conducting examination of the students admitted in the session for the year 2011-2012, hence cannot sustain and is annulled. It may, however, not amount to willful or deliberate disobedience of the orders dated 28.11.2011 and 07.12.2011 passed by this Court as the aforesaid issue was not expressly dealt with or decided therein. {13}Adverting to the second objection of the respondents that the students admitted by the petitioner-Institute in the Session 2011- 2012 are not as per the merit list of JET-2011, suffice it to observe that an 'approved' or affiliated Private Institute also cannot be allowed to admit the students in altogether violation of the combined merit list. The record suggests that at the time of publication of the JET Prospectus or when the said Test was held, the petitioner-Polytechnic did not have the requisite approval from AICTE, hence the respondents were justified in excluding its name from amongst the 'recognized Institutes'. The AICTE extended approval for the year 2011-2012 on 01.09.2011 only. In the absence of the relevant information on record, it is not known as:- COCP No.30 of 2012.doc - 11 -
(i) What was the last date of admissions in the State of Punjab for the Session 2011-2012?
(ii) Whether the petitioner-Institute approached the Board to allocate students for the Session 2011-2012 immediate on extension of approval by the AICTE?
(iii) Whether the students admitted by the petitioner-
Institute had appeared in JET-2011 and if so, what is their merit position?
(iv) Whether candidates who qualified JET-2011 were willing to seek admission in the petitioner-Institute after 01.09.2011 and if so, whether any list of such students was readily available with the Board?
{14}If it is found through a fact-finding enquiry into the questions raised hereinabove that the petitioner-Institute never intended to admit undeserving candidates through back-door entry for extraneous reasons like Capitation Fee etc. or that it was due to non-allocation of candidates by the Board that it was compelled to admit the students at its own, no fault shall be attributable to the petitioner-Institute and notwithstanding its objections, the Board shall have to hold their examination for the session 2011-2012 COCP No.30 of 2012.doc - 12 - subject to, however, the final decision of AICTE on the issue of approval of the petitioner-Institute.
{15}Since the respondents cannot be the judge in their own cause, the only appropriate authority to whom the responsibility of holding the fact-finding enquiry into the questions raised in para No.13 above can be entrusted, appears to be the Regional Officer, NWRO, All India Council for Technical Education, Takniki Shiksha Bhawan, Sector 36, Chandigarh. The said Regional Officer is accordingly directed to hold a fact-finding enquiry within one week from the date of receipt of a copy of this order at the expenses of the petitioner-Institute, if any, incurred in the said process. If the fact- finding enquiry vindicates the petitioner's stand in terms of the observations made hereinabove, the respondents shall then be required to take the necessary steps within two weeks thereafter. However, if the conclusion of the report goes against the petitioner- Institute, it shall be at liberty to seek redressal of its grievance before an appropriate forum other than the contempt jurisdiction of this Court.
{16}With these clarificatory directions, the contempt petition is disposed of.
{17}Let a copy of this order be given dasti by tomorrow. COCP No.30 of 2012.doc - 13 - {18}Rules discharged.
13.03.2012 (S u r y a K a n t) vishal shonkar Judge