Gujarat High Court
Avantika Education Trust vs National Council Of Vocational ... on 7 October, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14639/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14639 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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AVANTIKA EDUCATION TRUST....Petitioner(s)
Versus
NATIONAL COUNCIL OF VOCATIONAL TRAINING & 1....Respondent(s)
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Appearance:
MR MITUL SHELAT WITH MS SALONI M SHAH, ADVOCATE for the
Petitioner(s) No. 1
MR PRIYANK LODHA FOR MR DEVANG VYAS, ADVOCATE for the
Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/10/2016
CAV JUDGMENT
By way of present petition under Article 226 of the Constitution, the petitioner challenges the inaction on part of National Council for Vocational Training as well as the National Accreditation Board Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT for Education Training-the respondents herein in deciding the affiliation application of the petitioner. A direction is prayed for against the respondents to order formal affiliation to the petitioner vocational industry institute for the Academic Year 2016-2017.
2. The petitioner Technical Institute, which is granted recognition and approval by the State Government, imparts courses of electrician, fitter and wielder for which the certificate called GCVT Certificate are awarded. The petitioner was desirous to get affiliation with National Council for Vocational Training (NCVT). The petitioner has stated that the certificate issued by the NCVT would rank with higher value and recognition for the purpose of employment.
2.1 The petitioner submitted its on-line application on 16th January, 2016 for getting accreditation/affiliation to the second respondent- National Accreditation Board of Education and Training (NABET). The process involves inspection and verification by the Quality Council of India. On 28th February, 2016, the first site visit was paid by the team of the respondents. The second inspection and the re-site visit assessment was carried out on 09th April, 2016. It is the case of the petitioner that the report submitted at the end of the second inspection indicated that the petitioner was compliant of the requisite norms. The update about the status of the petitioner's application as available on the website Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT of the second respondent reflected that the application of the petitioner was in pipeline and was sent to NCVT for affiliation.
3. Orders were passed from time-to-time. At the time of issuance of notice on 31st August, 2016 it was noted thus, "It was submitted that the petitioner Institute was subjected to inspection by the team of the second respondent-National Accreditation Board for Education and Training (NABET) and the petitioner was found to be compliant of the requisite norms with endorsement excellent and very good. From page 36 of the compilation of the petition, it was next pointed out that thereafter, the second respondent has granted accreditation, and recommended it to the first respondent. The first respondent functions under the Ministry of Skill Development, Government of India. It was further submitted that stage thereafter is of granting approval/affiliation to the Institute which has to be a time-bound step."
3.1 On behalf of the first respondent, time was prayed for in order dated 15th September, 2016, the following was required to be recorded.
"The status-report in the nature of website available confirms the said fact as is produced by the petitioner. Since the time was essence as the time table indicate that within a particular time limit, affiliation will be granted as observed in order dated 09.09.2016 while granting time to the respondent that the time element involved was important. Today, learned advocate Mr. Priyank Lodha appearing for the respondents seeks time by stating that the though the case of the petitioner is that the application was sent, the first respondent has not received it. Learned advocate Mr. Lodha seeks time to take further instructions. It was stated that the time limit for affiliation was earlier upto 31.08.2016 which has been extended till 20.09.2016."
3.2 The admissions were to end on 31st August, 2016 which date, it was stated by learned advocate for the first respondent, was however extended till 20th Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT September, 2016. The time was essence in the case of the petitioner in asmuch as the process of accreditation was time-oriented and time-bound. 3.3 The process leading to the grant of affiliation of accreditation was time-bound. A formal order of affiliation was required to be passed within fifteen days after the Accreditation Committee of the second respondent holds the meeting. Such meeting was held on 12th July, 2016, the application of the petitioner was considered and was forwarded to NCVT. The date of 31st August, 2016 was the deadline, as it was the last date of grant of admission. It is in that time-bound context bearing significance that a duty was cast on respondents to finally consider and decide on the application for accreditation.
4. Heard learned advocate Mr.Mitul Shelat for the petitioner and learned advocate Mr.Priyank Lodha for learned advocate Mr.Devang Vyas for the first respondent. The second respondent National Accreditation Board for Education and Training did not chose to respond to the notice of the Court and did not appear though it was stated at the Bar by learned advocate appearing for the first respondent that the officers of the second respondent were personally present, however stated that he would not be able to appear on behalf of the second respondent.
4.1 Learned advocate for the petitioner highlighted that the second respondent NCVT addressed a communication dated 29th September, 2016 to all the States in respect of affiliation of Government/Private Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT Private Industrial Training (ITI) in which it was stated that the proposals accredited by the Quality Council of India and forwarded to PGT were put up before the members of the sub-committee of the first respondent National Council for Vocational Training dealing with the affiliation and was placed before the Committee in the meeting dated 23rd September, 2016 for approval. The application of the petitioner was made on 16th January, 2016 and was forwarded.
4.2 It was recorded in the aforesaid communication dated 29th September, 2016 as under.
"2. The Sub-Committee examined affiliation proposals and accorded approval for the proposals conforming to the NCVT Norms. As per the list enclosed herewith.
3. The affiliation of trades/units stated above is;
i. Subject to periodic verification.
ii. The ITI must comply with NCVT norms/ guidelines issued from time to time.
iii. ITI must display the newly released logo of ITI on the Display Board at the main gate.
iv. The existing ITIs are required to submit building completion certificate (BCC) before admitting trainees in subsequent session, if not submitted already."
4.3 In the list annexed to the said letter, the petitioner institute figured first and its application is shown to have been approved by the Committee of NCVT and in the last column it was mentioned that Building Completion Certificate was not attached. Copy of the said status report on the webportal available on 23rd September, 2016 is on record (page 68). Learned advocate by producing another copy (Page 75) of the even date, submitted that though the application was Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT shown to be approved, details on the website was changed and no remark was shown in the column of approval. He submitted that Building Completion Certificate was already submitted and was forwarded to the second respondent and the second respondent was shown to have forwarded to the first respondent as well.
4.4 Learned advocate for the first respondent was at receiving end when confronted with the changed details about the approval to the petitioner's application. He submitted that the Building Completion Certificate had not reached along with the application.
4.5 The first respondent-the National Council for Vocational Training filing its affidavit dated 26th September, 2016, raised the only contention that the case of the petitioner for grant of accreditation was not decided for the reason that along with the documents, the Building Completion Certificate was not forwarded. It was stated thus, "on consideration of the case of the Petitioner for accreditation, it was found that the Building Completion Certificate/such relevant documents concerning with Building Completion Certificate were not annexed along with the documents which were forwarded from the Respondent No.2 and therefore, the Respondent No.1 have sought such documents/clarification from the Respondent No.2 in order to grant affiliation to the Petitioner. The directives dated 17/6/2016 issued by Ministry of Skill Development and Entrepreneurship Directorate General of Training, Government of India makes it mandatory that the documents in support of building permission as per building by laws of local planning authority must also be insisted along with other documents.....Subsequently on 12/7/2016, a corrigendum was issued by the Ministry of Skill Development and Entrepreneurship Directorate General of Training, Government of India that the Completion Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT Certificate of the building as per the building by laws issued by the local Planning Authority certifying that building is fit to be used as an Industrial Training Institute is to be submitted by the respective institute."
4.6 It is also the case of the first respondent that the Ministry of Skill Development and Entrepreneurship Directorate General Training, Government of India, has intimated by communication dated 30th August, 2016 to the second respondent-NABET those applicants who are unable to produce Building Completion Certificate, may produce the documents (a) the Approved Building Plan duly signed by the competent authority (b) an Undertaking that the Building Completion Certification would be submitted within six months, else the institution shall be debarred from granting new admission in the next session. It was thereafter stated that in view of scrupulous requirement, the certificate regarding building completion or related documents shall have to be provided within a reasonable time.
5. The objection and the only objection regarding non- sending of Building Completion Certificate struggles to hold the ground. The update which appeared to be generated on 27th August, 2016 on the website of respondent No.2-NABET showed that the application of the petitioner bearing number was submitted on 16th January, 2016, that the committee meeting of the second respondent was held on 12th July, 2016 and it was stated 'Application passed in Accreditation Meeting. Moved to NCVT for affiliation.' There was no mention of non-availability of the Building Completion Certificate in that e-mail update Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT which was dated 12th July, 2016. Not only that as per the case of the petitioner, the necessary certificate issued by the Gram Panchayat was produced. Thirdly, the status report dated 09th April, 2016 regarding the application of the petitioner bearing No.A16000004 (Copy on record at page 19) clearly indicated about the documents which were verified during the assessment of the institute, which included the building layout plan. Therefore, the building requirement was shown to be met with.
5.1 The Building Completion Certificate issued by the Gram Panchayat, Makanpur, where the petitioner institute is situated was submitted along with the application as per the case of the petitioner on September 07, the status of the application of the petitioner shown on the website (Page 39) was that the conditional accreditation was granted subject to clearance of Building Completion Certificate. About the acceptability of the Building Completion Certificate by the Makanpur Gram Panchayat dated 04th January, 2016 which was stated to have been sent with the application, was again obtained on 08th September, 2016 and was forwarded as per the say of the petitioner. No dispute is required to be booked for the competency of Panchayat for issue the Certificate as the petitioner institute's building is situated within the jurisdiction of Makanpur Gram Panchayat, District Panchmahal which has granted the Certificate. The petitioner has produced communication from the different authorities such as Godhra Municipality as well as the Collector that the Completion Certificate Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT could be granted by the Gram Panchayat concerned and not by the respective authority of Municipality or Panchayat as the building was within the area of Gram Panchayat. Also on record produced by petitioner and sent with the application is the Building Completion Certificate issued by the Architect stating that the constructed work is as per IS Specification and as per approved plan.
5.2 Another aspect about the requirement of Building Completion Certificate is that similarly situated applicants-institutes are granted the accreditation on condition that the ITI concerned could be required to submit Building Completion Certificate (BCC) before admitting trainees in the subsequent session, if not submitted already. The letters of accreditation granted to two of such institutes are on record (Page 45, 61). In this wake of facts, the treatment to the petitioner is rendered discriminatory and arbitrary as its application could have been dealt with in similar way, even if it was the case of the respondents that Building Completion Certificate was in wanting.
6. The composite operation of the facts as above and the conduct on part of the respondents entitles the petitioner to seek and get a writ of mandamus. In Comptroller and Auditor General of India vs. K.S. Jagannathan [(1986) 2 SCC 679], the Supreme Court inter alia stated that the High Court would exercise its jurisdiction under Article 226 of the Constitution and would have the power to issue a writ Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT of mandamus or in the nature of mandamus or to pass orders and give necessary directions, "where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its direction."
6.1 The above emerging scenario of facts and the events which travelled post-stages in the process of application of the petitioner for grant of accreditation go to show not only that though the application of the petitioner ITI was made and was forwarded by the second respondent to the first respondent NCVT and the same was also considered and approved, it was not finally dealt with because of dilly-dallying and dawdling approach, but also it was indicated that the only objection was about Building Completion Certificate. In the facts of the case, the said aspect would not detain the culmination of petitioner's application and grant of it by the first respondent for the reasons stated hereinabove.
6.2 It is the stand of respondent No.1 that Building Completion Certificate shall have to be made Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Oct 08 01:52:44 IST 2016 C/SCA/14639/2016 CAV JUDGMENT available within reasonable time. In respect of the instances mentioned above, the first respondent has permitted that the Building Completion Certificate may be produced before admitting the students in the next session. There was no reason as to why the petitioner's case could not have been considered on the same lines even if the stand of the respondent to be that the Building Completion Certificate is awaited from the petitioner. The time element was a relevant factor in granting affiliation. The application has already been forwarded in time and has reached the first respondent. It was a legal duty attached with the functioning of the respondents in the matter of exercise of powers to decide for grant of application.
7. For the foregoing reasons, it is incumbent for the respondents to positively consider the application of the petitioner for affiliation. The respondents are directed to grant and order formal affiliation to the petitioner for Academic Session 2016-17 and the same shall be deemed to have been granted within time and shall be treated to be in force accordingly, however the petitioner's put to a condition that the petitioner shall physically forward within 15 days from today additional original Building Completion Certificate to reach both the respondents.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Oct 08 01:52:44 IST 2016