Gujarat High Court
All India Council Of vs G K Bharad Institute Of on 14 June, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, Mohinder Pal
ALL INDIA COUNCIL OF TECHNICAL EDUCATION (AICTE)V/SG K BHARAD INSTITUTE OF ENGINEERING THROUGH ADMINISTRATOR C/CA/5709/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5709 of 2013 ================================================================ ALL INDIA COUNCIL OF TECHNICAL EDUCATION (AICTE) & 2....Applicant(s) Versus G K BHARAD INSTITUTE OF ENGINEERING THROUGH ADMINISTRATOR & 2....Respondent(s) ================================================================ Appearance: MR N.D.NANAVATI, SR. ADVOCATE WITH MR VILAS G GOSWAMY, ADVOCATE for the Applicant(s) No. 1 - 3 MR S.I.NANAVATI, SR. ADVOCATE WITH MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 14/06/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present Civil Application is filed seeking condonation of delay of 305 days (as per the Department) whereas, according to the learned advocate, the delay is only 140 days.
2. It will be interesting to consider aforesaid controversy though not very much necessary but as it reflects on the conduct of the applicant appellant- All India Council of Technical Education (AICTE) and others.
3. Letters Patent Appeal (Stamp) No.919 of 2013 is filed challenging 2 (two) orders of the learned Single Judge; one dated 26th June, 2012 and the other one dated 10th January, 2013. If the period of limitation is counted from date of first order under challenge i.e. 26th June, 2012, the Department has rightly calculated the delay of 305 days. But the learned advocate is calculating the period of limitation from the date of second order i.e. 10th January, 2013 and therefore, his contention is that, delay is of 140 days.
4. This Court would not have detained itself in this controversy but it is necessary to do so because as stated herein above, it reflects conduct of the applicant-appellant and therefore, this discussion is required. The respondent herein i.e. G.K.Bharad Institute of Engineering is the petitioner in Special Civil Application No.7488 of 2012; wherein, the learned Single Judge was pleased to pass an order on 26th June, 2012 and grant interim relief. It will be appropriate to reproduce the relevant part of that order, which reads as under:
Mr.Nanavati, learned Senior Counsel submitted that Special Civil Application No.8024 of 2011 has been preferred between the same parties and the same is pending. The order passed by the Division Bench in Special Civil Application No.8024 of 2011 reads as under.
Notice on respondents. Apart from Court s notice, notice by speed post is permitted. Post the matter on 27th July 2011.
In the mean time, pendency of the writ petition shall not stand in the way of All India Council for Technical Education to include the name of the petitioner
- Institution in the approved list of colleges and to allot students to the petitioner Institution, if there is no impediment.
Direct service is permitted .
As a result of hearing and perusal of records and the order passed in Special Civil Application No.8024 of 2011, interim relief in terms of para 7(B) is granted subject to the result of the petition. In the mean time, pendency of writ petition shall not stand in the way of the All India Council for Technical Education to include the name of the petitioner Institution in the approved list of colleges and to allot students to the petitioner Institution, if there is no impediment. The students being admitted in the petitioner- Institution shall be informed that the admission shall be subject to final result of the petition.......
5. It is this order against which the applicant filed Letters Patent Appeal being Letters Patent Appeal No.655 of 2013. This appeal was filed on 09th January, 2013. Incidentally, the second order is passed by the learned Single Judge on dated 10th January, 2013 but an explanation is sought to be rendered by the learned advocate for the applicant that therefore the second order dated 10th January, 2013 could not be included in the Letters Patent Appeal. Even if it is accepted, what is required to be noted is that the Letters Patent Appeal was taken up for admission hearing only on 7.5.2013. That being so it will not be fruitful on the part of the learned advocate for the applicant to state that even by that date (7.5.2013), he could not have incorporated order dated 10th January, 2013 for challenging in the Letters Patent Appeal but it appears that the applicant had some hidden agenda in not doing so which will be clear from the details which are to follow.
6. On 7.5.2013, the Letters Patent Appeal was heard and after hearing the Division Bench consisting of the then Acting Chief Justice had observed as under:
Mr.Goswami, appearing for the appellant fairly concedes that the modified order dated 10th January, 2013 has not been challenged so far. However, he states that a formal approval has been granted by his client to file an appropriate appeal to challenge the modified order passed by the learned Single Judge dated 10th January, 2013.
In such circumstances, Mr.Goswami submits that his client intends to withdraw this Appeal and file a fresh appeal challenging both the orders i.e. the order dated 26th June, 2012 and the order dated 10th January, 2013. if permissible in law.
In such circumstances, the Appeal is disposed of accordingly as withdrawn.
We clarify that we have not gone into the merits of the Appeal....... .
It is, thereafter, that the present Letters Patent Appeal (Stamp) No.919 of 2013 along with Civil Application seeking condonation of delay is filed.
What is important is the ground advanced seeking condonation of delay and that is set out in para-3 of the application, which this Court is of the opinion will be necessary for ready perusal and that is why, it is reproduced. This para-3 is as under:
3. It is submitted that the said decision could not be communicated to the advocated reason being the records of the regional office, Bhopal was under the scrutiny and search of CBI and therefore the same are disturbed. It is further submitted that the officers and the staf of the applicants are engaged in CMAT examination will be held in al over the region and therefore, due to shortage of the officers and other staff members the appeal could not be filed. It is further submitted that so many officers those who are dealing with the matters have left the job during that period, therefore there is delay in filing the present appeal before this Hon ble Court. In view of the facts mentioned herein above the dealy caused in filing present appeal may kindly be condon in the interest of justice......... .
This Court has no doubt that the reason advanced is no reason for seeking condonation of delay more particularly, when one appeal was already filed challenging the order of learned Single Judge dated 26.6.2012. There is dispute about exact time at which the said appeal was filed. The case of the learned advocate for the applicant is that the appeal was filed only on 9.1.2013 whereas, learned Senior Counsel appearing for respondents herein is having in hand a copy served on 24.12.2012. The Court may not attribute any importance to this discrepancy of the date of filing of the appeal, but Court cannot ignore the fact that having filed the appeal on 9th January, 2013, the same was not taken up for hearing till 7th May, 2013 and during those 4 (four) months. The applicant did not take trouble to incorporate order dated 10th January, 2013 for challenging in the said Letters Patent Appeal.
One will wonder as to why this controversy is so significant, that comes from the argument advanced by the learned advocate for the applicant. The learned advocate for applicant submitted that the applicant cannot of its own and cannot by direction of any person or Authority be asked to allot students to the respondent-Institution in view of the judgment of Hon ble the Apex Court in the matter of Parshvanath Charitable Trust and Others V/s. All India Council for Technical Education and others reported in (2013) 3 SCC 385.
In this case, the Hon ble the Apex Court was pleased to provide a schedule in paragraph No.41. In that schedule the Hon ble the Apex Court provided that the date of commencement of academic session will be 1st August. Hon ble the Apex Court also provided that the last date upto which students can be admitted against vacancies arising due to any reason (no student should be admitted in any institution after the last date under any quota)to be 15th August and the Hon ble the Apex Court also provided the last date of granting or refusing approval by AICTE to 10 th April.
Referring to the word any impediment in the order passed by the Division Bench and also in the order passed by the learned Single Judge, it is argued on behalf of the applicant that one of the impediment in the way of the applicant in allotting students to the respondent Institution is that the Hon ble the Apex Court said in para 46.2 that No person or authority shall have the power or jurisdiction to vary the schedule prescribed herein above . This judgment dated 13th December, 2012 was very much known to AICTE-the applicant on the date of filing of Letters Patent Appeal on 9.1.2013. That being so, it was the duty of AICTE to obtain appropriate orders by getting the said Letters Patent Appeal heard as early as possible as the last date of granting or refusing approval was prescribed to be 10th April.
For the reasons best known to AICTE and this Court has no reason to give benefit of doubt to the AICTE, that this must have been done, guided by an individual officer because AICTE being an Institution, it has to act only through an individual, the Letters Patent Appeal was taken up for hearing only on 7th May, 2013 that too without including order dated 10th April for challenge and without bringing the aforesaid judgment and order of the Hon ble the Apex Court to the notice of the High Court. That Letters Patent Appeal was withdrawn and fresh Letters Patent Appeal is filed with an application seeking condonation of delay and the case as set out for condonation of delay is only deficiency of staff. If that is the only ground as is pleaded to seek condonation of delay, this Court is of the opinion that such application is not even worth of paper on which it is submitted. This Court finds no reason to condone the delay. Civil Application is dismissed. The Court restrains itself from imposing cost for filing such frivolous proceedings.
Taking into consideration the question involved in the matter, the Court granted indulgence to both the parties and heard the matter on the question of grant of relief in the nature of allotting students treating the respondent-Institution to be an approved Institution.
On the point of grant of relief in the nature of allotting the students to the respondent-Institution, the learned Senior Counsel appearing for the applicant-AICTE submitted that the AICTE had impediment as referred to by the Division Bench and also by the learned Single Judge on account of the rule referred to in the order impugned (dtd. 8.5.2012).
Order dated 8th May, 2012 is at Anneuxre-N and the relevant part of the order reads as under:
Recommendations of the Committee In view of the deficienes that exist and in view of non acquittal of CBI charge it is recommended that the college should not be considered for the Extension of Approval. This is in consonance with the approval process hand book 2012-13 clause 3.1 d Chapter 2.
Para-10, As per Approval Process Hand Book 2012-13, Chapter-II, page No.43, clause No.3.d, which mentions the following.
Any Institutions / Society/ Trust/ Section 25 Company or a member belonging to these if charge sheeted, shall not be considered for Extension of Approval unless they are acquitted .
17. Learned Senior Counsel for the applicant submitted that there is a charge sheet filed against the Trustee of the respondent-Institution under whose signature the application for registration was filed. In view of that, there is a valid impediment, in the way of allotment of students and therefore, the applicant cannot allot any and may not be directed to allot any students to the respondent-Institution.
18. Learned Senior Counsel for the applicant also submitted that in view of the decision of the Hon ble the Apex Court in the matter of Parshvanath Charitable Trust and Others (Supra) the Hon ble the Apex Court has provided a schedule in para-41 and as per the schedule the last date of granting of approval is 10th April and further the Hon ble the Apex Court has provided in paragraph No.46.2 that, no person or authority shall have the power or jurisdiction to vary the schedule prescribed herein above .
19. Learned Senior Counsel for the applicant submitted that in view of that the applicant does not have any power to vary the schedule prescribed by the Hon ble the Apex Court and therefore, in light of that the applicant may not be directed to allot the students to the respondent-Institution.
20. Learned Senior Counsel for the respondents submitted that firstly the first impediment about the provision made in approval process in academic year 2012-13 is concerned, the same cannot be made applicable to respondent-Institution because it is subsequent to the passing of the order by the Division Bench as well as by the learned Single Judge.
The learned Senior Counsel for the respondents submitted that so far as second impediment pleaded by the applicant is concerned, the same also should not hold back this Court from issuing direction to applicant to allot students because from the discussion made herein above, it is clear that it was a deliberate attempt on the part of the applicant to delay the matter and not to get it finalized before the date prescribed in the schedule i.e. 10th April. The order of the learned Single Judge is dated 26.6.2012, second order is dated 10th January, 2013 and though the Letters Patent Appeal was filed in the month of January, 2013, the same was not moved for getting orders until 7th May, 2013 and therefore, both these contentions are liable to be rejected and the same should be accordingly rejected.
21. Taking into consideration the rival contentions, this Court is of the opinion that the impediment pleaded as first impediment does not have any merit inasmuch as referred rule provides for, any Institution / Society/ Trust/ Section 25 Company or a Member belonging to this, as person to have been charge sheeted. This Court cannot be oblivious of the facts of the case and the facts of the case are that in the present case, the Trustee under whose signature the application seeking registration was submitted to AICTE is charge sheeted. It will be appropriate here to mention that he is charge sheeted for having filed a declaration which is alleged to be untrue by the Inspection Committee. The Court cannot and should not ignore the facts and the facts are that, the application was filed mentioning that Institution is having more than 12 acres of land for running Institution . Now the case of the AICTE in the show cause notice is that, the land was found to be less than 10 acres . But then this show cause notice was replied by the respondent-Institution and the AICTE has passed the order under challenge dated 8th May, 2012 without taking into consideration the contents of the said reply. An important and relevant content of the reply is that, in the event the AICTE is of the opinion that the land is less than 10 Acres, the Institution has purchased 3 Acres of land which is adjacent to the present land and therefore, that deficiency does not survive . For the reasons best known to AICTE, this fact submitted by the respondent-Institution in the reply is not taken into consideration at all while passing the order and the order is passed ignoring the said fact.
22. In such circumstances, this Court is of the considered opinion that even assuming for the sake of arguments, that charge-sheet issued to a Trustee is same to a charge-sheet issued to an Institute the Trust itself , the fault alleged against the said Trustee cannot be said to be of such grave nature which should dis-entitle the Institution from having the allotment of the students.
23. The matter is required to be viewed in light of the fact that only recently i.e.on 23rd August, 2010, the applicant AICTE has granted more faculty, to the respondent-Institution, namely, Civil Engineering and also increased intake capacity in Mechanical Courses from 60 students to 120. This fact is set out in para 2.8 of the memo of petition. If that is so, the filing of charge sheet against the Trustee cannot be allowed to strangulate the Institution, by not allotting students for the current year (2013-2014).
24. Coming to second impediment, this Court is of the opinion that the judgment of the Hon ble the Apex Court in the matter of Parshvanath Charitable Trust and Others (Supra) cannot be applied to the facts of the present case and the submission made by the learned Senior Counsel for the respondent-Institution to the effect that Para-46.2 of the said judgment does not take away the jurisdiction of the High Court under Article 226 of the Constitution of India deserves to be accepted. Taking into consideration the totality of the circumstances, this is a fit case wherein, the applicant is required to be directed as is already directed by earlier Division Bench of this Court and subsequently by learned Single Judge of this Court to allot the students to the respondent-Institution. Order accordingly.
25. At the request of learned advocate for the applicants it is clarified that observations made herein above, are, prima-facie, and the learned Single Judge will decide the matter on merits, which according to the learned advocate for the applicant is required to be heard at an early date. It will be open for the learned advocate for the applicant to file an appropriate application seeking an early date of hearing of the matter.
26. It is also made clear that the question of approval will be decided in the Special Civil Application in accordance with law and this order is not be construed to mean that this Court has directed the applicant to grant approval. The Respondent No.3 being the admission Committee will be obliged to carry out the direction of allotting students to respondent-Institution for the current academic year 2013-14 treating the Institution to be in the list of approved Institutions.
27. The application is disposed of with this clarificatory order / direction.
(RAVI R.TRIPATHI, J.) (MOHINDER PAL, J.) ashish Page 14 of 14