Bombay High Court
Navnirman Shikshan Prasarak Mandal And ... vs State Of Maharashtra And Ors. on 17 October, 2000
Equivalent citations: 2001(1)BOMCR801
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, N.V. Dabholkar
JUDGMENT B.H. Marlapalle, J.
1. All these four petitions have raised a common challenge and, therefore, they have been heard together and are being decided by a common judgment.
2. Heard the learned Counsel for the respective parties and the learned A.G.P. for the respondent State authorities, Rule. Respective parties waive service. With the consent of the parties the petitions were taken up for final hearing forthwith.
3. Writ Petition No. 3197 of 1999 has been filed by the Navanirman Shikshan Prasarak Mandal, Bhayala, Taluka Patoda, District Beed (Navinirman Mandal, for short) on 7th June, 1999 initially seeking directions against the State authorities to decide its pending proposal to start a new college at Shirur Kasar, a Taluka town in Beed district, pursuant to the orders passed by this Court in Writ Petition No. 5136 of 1997 and the said proposal was submitted for the academic year 1999-2000. By order dated 14th July, 1999 while issuing notice before admission this Court had directed that if the respondent authorities had granted permission to any other institution to open college at Shirur Kasar, the concerned file would be produced in the Court on the next date. In the meanwhile, by order dated 9th July, 1999 the State Government had granted permission in favour of Shri Sant Bhagwanbaba Shikshan Prasarak Mandal, Pangri, Taluka Parali Vaijinath, District Beed (Shri Sant Mandal, for short) for opening a new college at Shirur Kasar for the academic year 1999-2000 in Arts faculty only. By order dated 22nd July, 1999 this Court was pleased to stay the said order dated 9th July, 1999 as a result of which the new college proposed to be started by Shri Sant Mandal could not be opened at Shirur Kasar. The petition was subsequently amended and the said institution was included as respondent No. 5 and it was prayed to quash and set aside the order dated 9th July, 1999. Respondent No. 5 has filed Civil Application No. 3492 of 2000 praying for vacating the order of stay.
Writ Petition No. 3688 of 1999 came to be filed on 16th July, 1999 originally sought directions against the respondent State authorities to decide its pending proposal in view of the directions given by this Court in Writ Petition No. 850 of 1999 and subsequently the petition was amended impleading Sant Mandal as respondent No. 4 and praying for a writ of certiorari so as to quash and set aside the order dated 9th July, 1999 granting permission to start a new college at Shirur Kasar in favour of respondent No. 4. This petition has been filed by Shetkari Shikshan Prasarak Mandal at Ashti, District Beed and Ashti is a separate Taluka place in District Beed.
Writ Petition No. 3731 of 1999 came to be filed on 22nd July, 1999 challenging the order dated 9th July, 1999 passed in favour of respondent No. 6 i.e. Shri Sant Bhagwanbaba Shikshan Prasarak Mandal. This petition has been filed by Adarsh Shikshan Sanstha at Beed.
Writ Petition No. 3947 of 1999 was filed before us on 28th July, 1999 by Sangram Sewabhavi Sanstha at Pimpalner in Taluka Shirur Kasar District Beed challenging the order dated 9th July, 1999 granting permission to start a new college in favour of respondent No. 5 i.e. Shri Sant Mandal.
In short all these four petitions challenge the permission granted by the State Government in favour of Shri Sant Mandal at Pimpri (hereinafter referred to respondent society, for short) for starting a new college at Shirur Kasar.
4. Pursuant to our orders passed in Writ Petition No. 3197 of 1999 the respondent university as well as the State authorities have submitted the original files before us. From the files maintained by the University it is seen that for starting a new senior college at Shirur Kasar in all six proposals were received by the respondent university before 31st October, 1998 in the prescribed format and with the requisite fees having been paid for processing the proposals. These six institutions are (i) Adarsh Shikshan Sanstha, Beed, (ii) Navanirman Shikshan Prasarak Mandal, Bhayala (iii) Sant Bhagwanbaba Shikshan Prasarak Mandal, Pangri, (iv) Sangram Sewabhavi Sanstha, District Beed, (v) Renuka Shikshan Prasarak Mandal, Beed and (vi) Shetkari Shikshan Prasarak Mandal at Ashti. The management council of the respondent University in its meeting held on 24th December, 1998 considered the proposals for starting new colleges as per the perspective plan and decided to recommend some colleges and not to recommend the others. However, before the resolutions of the management Council were made available, the Vice Chancellor, vide his letter dated 28th December, 1998, forwarded to the State Government the names of colleges whose proposals were recommended (Scheduled- A), and names of the colleges whose proposals were not recommended (Schedule- B). Out of six applications received for Shirur Kasar the Vice Chancellor had recommended only two applications namely Adarsh Shikshan Sanstha, Beed, Shri Sant Mandal, Pangri. However, in Schedule-A to the said letter the name of Shri Sant Mandal was shown at two places i.e. at serial No. 7 and serial No. 11 though it was one and the same society and all these proposals were recommended only to start an Arts college. The reason in support of this recommendation was that Shirur Kasar had become a Taluka town and, therefore, there was a need to start a new college. On 6th February, 1999 a proposal came to be submitted to the Vice Chancellor of the respondent No. 3 University stating therein that as per the resolution passed in the Management Council meeting held on 24th December, 1998, which was received on 15th January, 1999, it was resolved that the educational institutions who had submitted a proposal for starting a new college during the academic year 1998-99 and had submitted a fresh application for the subsequent academic year, their fresh applications should be recommended to the State Government provided the application submitted in the preceding year was also recommended. Taking support of this resolution passed by the Management Council it was submitted to the Vice Chancellor that the case of Navanirman Mandal, Bhayala was required to be recommended by adding its name in Schedule-A and removing it from Schedule-B to the proposal forwarded to the State Government vide letter dated 28th December, 1998. Accordingly, the Vice Chancellor, vide his letter dated 15th March, 1999 submitted an additional list of the educational institutions whose applications were recommended for starting new colleges during the academic year 1999-2000 and in that list at Serial No. 3 the name of Navanirman Mandal, Bhayala was added (Writ Petition No. 3197 of 1999). No reasons were given by the University as to why the proposal of the said institution was recommended to the State Government. Whereas, the proposals of the remaining two institutions namely Shetkari Shikshan Prasarak Mandal, Ashti and Renuka Shikshan Prasarak Mandal, Beed were not recommended by the University to the State Government and these institutions were accordingly informed vide letter dated 21st January, 1999. Renuka Shikshan Prasarak Mandal has not challenged the decision of the Government for permitting to start a new college at Shirur Kasar though its name was not recommended.
5. All these proposals alongwith other proposals submitted by the respondent University were considered by the State Government and a detailed note regarding the applications for starting new colleges as recommended by all the Universities in the State was submitted to the Cabinet Sub Committee which was constituted vide Government Resolution dated 17th June, 1995, on 18th May, 1999. The Cabinet Sub Committee consisting of the Minister for Higher and Technical Education, Deputy Chief Minister and Chief Minister met at the residence of the Chief Minister on 3rd July, 1999 and decided to grant permission to 40 institutions to start new colleges in Arts, Commerce, Science and Law. Accordingly, for Beed District two new colleges came to be sanctioned one at Shirur Kasar and the other one at Dharmapuri. This decision was converted into an order and communicated to the respondent No. 3 University on 9th July, 1999.
6. We are, therefore, required to examine the legality of the impugned decision taken by the State Government as well as the decision of the respondent University in recommending the applications for permission to start a new college at Shirur Kasar. The files submitted by the University indicate that all the six proposals were submitted by the respective institutions before 31st of October, 1998 in the prescribed form. On receipt of these proposals the University, by its letter dated 11th of November, 1998 called upon each one of the institutions to submit additional information in the prescribed format and the information was more particularly regarding the infrastructure available with the institution to start a new college, including college building, library, laboratory, hostel, play ground and availability of adequate number of students seeking admissions in the first year of the degree courses as well as the financial capacity of the institution. Some of the applicants submitted the said information whereas others like Adarsh Shikshan Sanstha and Navanirman Mandal did not submit this information. The remaining four did submit the information, as sought by the University, and Renuka Shikshan Prasarak Mandal was one such institution which submitted the information and still the University did not recommend its name to the State Government. Did the respondent University perform its statutory duty in submitting these proposals either recommending or not recommending is a mute question to be considered by us at the first instance.
7. Section 82 of the Maharashtra Universities Act, 1994 (for short, the Act) sets out the procedure for permission to start new colleges or institutions of higher learning. It would be desirable to reproduce the provisions of the said section.
"82. (1) The University shall prepare a perspective plan for educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and underdeveloped areas within the jurisdiction of the University. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be up dated every 5 years.
(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan shall be considered by the University.
(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of the University before the last day of October of the year preceding the year from which the permission is sought.
(4) All such applications received within the aforesaid prescribed time-limit, shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.
(5) Out of the applications recommended by the University, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning.
Provided, however, that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the University may be approved by the State Government for starting a new college or institution of higher learning.
(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institution of higher learning."
8. As per sub-section (1) the University is required to prepare a perspective plan for educational development for a period of five years and no application for opening a new college or institution of higher learning, which is not in conformity with the plan, shall be considered by the University as per sub-section (2). All the applications received by the University within the time-limit set out i.e. before the last date of October of the year shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year with such recommendations duly supported by relevant reasons as are deemed appropriate by the Management Council. Out of the applications recommended by the University, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning. We need not consider the provisions of sub-section (6) as well as the proviso to sub-section (5) of section 82 of the Act as they are not relevant in the instant case.
We have no hesitation to observe that the respondent University has failed to perform its statutory duty while recommending the three proposals in the first stage and the fourth proposal in the second stage. In fact, the University had no authority in law to amend its recommendations or supplement the list of institutions recommended by it subsequently in March, 1999 because as per the scheme of the Act itself, all such recommendations are required to be submitted before December. The record also indicates that the University recommended the proposals of only three institutions namely Adarsh Shikshan Sanstha, Beed, Shri Sant Mandal, Pangri and Navnirman Mandal, Bhayala. The case of Sangram Sewabhawi Sanstha, Pimpalner, Taluka Patoda has not been recommended by the University whereas by letter dated 16th February, 1999 the said institution has been informed that its proposal was recommended to the State Government.
On the file, the perspective plan for the period 1996-2000, as prepared by the respondent University, is available and as per the said plan there is no college or any other institution of higher learning envisaged for Shirur Kasar. However, the University recommended three proposals to start new colleges at this place solely on the ground that the State Government had made Shirur Kasar a new Taluka headquarters carved out of the old Patoda Taluka itself. Out of the proposals recommended by the University some of them did not indicate its financial capacity and, in fact, Navnirman Mandal did not furnish the required information to the University regarding the infrastructural facilities and its financial capacity.
The University did not assess the comparative merit of any of the proposals by taking into consideration the necessary information that was available before it. As per the scheme of section 82(4) of the Act the proposals received by the University are required to be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council. Though, the Management Council has passed resolution in its meeting dated 24th December, 1998 regarding the proposals received by the University there is nothing on record to show that these proposals were scrutinised by the Board of College and University Development at any time before they were recommended to the State Government. When the provisions of the Act lay down a particular method to be followed by the University authorities for scrutinising, processing and recommending the proposals for starting new colleges, the said provisions are mandatory and the proposals must be gone through in compliance with such statutory procedure. When the law says that a particular thing has to be done in a particular manner it ought to be done in that manner alone.
We may, in this regard, usefully refer to the judgment of the Supreme Court in the case of Babaji Kondaji Garad and others v. Nasik Merchants Co-operative Bank Ltd., Nasik and others, 1984(1) Bom.C.R. 399 : 1984 Bom.L.R. 114 : 1984 Mah.L.R. 405, and Babasaheb Rajaramji Dampurikar and another v. Collector of Parbhani District and others, .
9. Even in the affidavit in reply filed on behalf of the State Government it has been clearly admitted that the respondent University, while recommending the proposals, did not indicate comparative merit and treated all the proposals on par. When the perspective plan did not indicate that a new college was required to be opened at Shirur Kasar and if the University considered to recommend such a proposal for Shirur Kasar it was obligatory on the part of the University to set out its preference in order of merit from amongst the proposals it had recommended to the State Government. The University being an academic body and equipped with all the academic expertise, it is under a statutory obligation to prepare a list of the proposals in order of merit and if it does not do so, obviously it abdicates its statutory powers. When the University decides to recommend, it is not a mere mechanical process of submitting its recommendations but indeed it must demonstrate that every proposals was examined by the Board so as to assess the infrastructure, students strength, capabilities to establish and run a new college and the financial resources and prepare a list as per merit. When a proposal is not recommended, the University must give reasons in support of such a decision.
10. Shri Jahagirdar, the learned Senior Counsel appearing for the respondent society submitted that once the application has been recommended by the University the State Government has its absolute discretion to pick up any proposal from amongst the proposals submitted by the University and the State Government is not required to give any specific reasons in support of its decision. It is also submitted that once the proposal was recommended its suitability ought to be presumed unless shown to be otherwise and this Court has no powers to investigate into the merits and demerits of the discretion exercised by the State Government.
The scheme of sub-section (5) of section 82 clearly lays down that out of the applications recommended by the University, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning. It is, thus, obvious that it is mandatory for the State Government to assess the suitability of the managements seeking permission to open new institutions by taking into account the State Government's budgetary resources and the State level priorities with regard to the location of the institutions of higher learning and the State Government is not vested with a blanket discretion.
The respondent society is located at Pangri, Taluka Parali Vaijinath whereas Adarsh Shikshan Sanstha is located at Beed and Navnirman Mandal is located at Bhayala, Taluka Patoda, whereas Renuka Shikshan Prasarak Mandal is located at Shirur Kasar. It is not known what weighed in favour of the Government's decision to give permission to the respondent society when it is located in a different Taluka. At the same time there is a society who are running a junior college at Shirur Kasar or in the nearby areas and the proposals of such societies have not been accepted by the State Government. There is no indication in the State Government's decision regarding the assessment of financial capabilities as well as the infrastructural facilities and the knowhow or expertise available with the applicant society to run a senior college. Though, by the Government Resolution dated 17th June, 1995 the Government decided to grant permission to start a new college at a Taluka place as an aided institution, that does not imply that the State Government is not required to consider the comparative merit of the proposals recommended by the University even if the University failed to submit such proposals in order of their merits. The decision of the Cabinet Sub-Committee as is available in the file, does not demonstrate any application of mind to the proposals recommended by the University and their comparative merits and, in fact, there are no reasons given as to why the Cabinet Sub-Committee decided to accept the 40 proposals and permit each one of them to start new colleges at the designated places.
11. In the case of Dhananjay R. Kulkarni and others v. State of Maharashtra and others, a Division Bench of this Court [Y.K. Sabharwal, C.J. and A.P. Shah, J.] had an occasion to deal with the interpretation of section 82 of the Act and it is inter alia held that (a) the applications for opening a new college or institution of higher learning, which is not in conformity with the perspective plan, cannot be considered by the University and the application for grant of such permission cannot be entertained directly by the State Government; (b) all the applications filed by the managements within the period stipulated by section 82(3), seeking permission to open new colleges or institutions of higher learning, are required to be scrutinised by the Board of College and University Development and forwarded to the State Government with the approval of the Management Council with such recommendations as are deemed appropriate by the Management Council; (c) such applications, which are not in conformity with the prespective plan and, thus, are outside the purview of the University for consideration, are also to be scrutinised by the Board of College and University Development and the same are also required to be forwarded to the State Government and (d) the State Government has no powers to accord approval to an institution which is not within the perspective plan.
12. As we have noted above, the perspective plan prepared by the University for the period 1996-2000 does not include a new college at Shirur Kasar in Beed District and the University considered the six applications and forwarded these proposals to the State Government only on the basis that Shirur Kasar has been converted into a separate Taluka. There is no application of mind either by the University or by the State Government regarding the availability of students strength at Shirur Kasar for a new senior college to be opened in the academic year 1999-2000. Neither the University nor the State Government has examined the infrastructural facilities available with any of the applicants and even the respondent society in whose favour the permission has been finally granted. This exercise at the threshold has to be done by the University and its recommendations to the State Government must indicate the availability of infrastructure, the capability/expertise to start and run a new college and the availability of students.
Both the University as well as the State Government have failed to comply with the statutory provisions of section 82 of the Act while granting permission in favour of the respondent society and, therefore, the said action cannot be sustained. The impugned decision manifestly runs against the law laid down by this Court in Dhananjay Kulkarni's case (supra) . When the State Government claims to have exercised its discretion, it must set out the merits of the same when the decision is challenged in a writ petition on the ground that it is violative of Article 14 of the Constitution and it is solely to favour a particular society dehors the provisions of the Act. The record must, at least, speak to the effect that Government was justified in exercising its discretion and such power to discretion is justified when all the proposals recommended are on par, as per the assessment made by the academic body. Discretion without being supported by reasons does not meet the constitutional guarantee as embodied under Article 14 of the Constitution. It must be noted that granting permission to start new institutions of higher education in terms of the statutory scheme is not like granting donations or doling out charities or bounties by the Government.
13. We, therefore, quash and set aside the State Government's decision, granting permission in favour of respondent society to start a new college in Arts at Shirur Kasar during the academic year 1999-2000 and direct the State Government to return all the proposals (forwarded by the University), to the University forthwith for its fresh considerations in compliance with the provisions of section 82 of the Act. The University shall reconsider these proposals, on the lines of the observations made by us in the foregoing paragraphs, and submit its recommendations on inter se merits before 31st December, 2000. The State Government is directed to consider the said recommendations to be submitted and pass an appropriate and reasoned order before 31st May, 2001.
14. Rule made absolute, in terms of the above order. Costs in cause.