M P Shah Education Soceity Through ... vs State Of Gujarat & 3 on 5 July, 2016

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Gujarat High Court

M P Shah Education Soceity Through ... vs State Of Gujarat & 3 on 5 July, 2016

Bench: Abhilasha Kumari

                C/SCA/15076/2013                                            CAV JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       SPECIAL CIVIL APPLICATION NO. 15076 of 2013




         FOR APPROVAL AND SIGNATURE:


         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         ==========================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?

4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== M P SHAH EDUCATION SOCEITY THROUGH SECRETARY....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance:

MR ABHIMANYU RATHOD, ADVOCATE FOR MR MEHUL H RATHOD, ADVOCATE for the Petitioner MS SNUSHA JOSHI, ASSISTANT GOVERNMENT PLEADER for Respondents Nos.1 & 2 MS SHIVANI RAJPUROHIT, ADVOCATE FOR MR AMIT M PANCHAL, ADVOCATE for Respondent No. 3 MR SUNIT S SHAH, ADVOCATE FOR MR OMKAR C DAVE, ADVOCATE, MR ISHAN MIHIR PATEL, ADVOCATE for Respondent No. 4 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date: 05/07/2016 C.A.V. JUDGMENT Page 1 of 90 HC-NIC Page 1 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for the issuance of an appropriate writ, order or directions to quash and set aside Resolution No.30 dated 30.04.2013, passed by the Executive Council of Hemchandracharya North Gujarat University (respondent No.3 herein, wrongly described as `Hemendracharya' North Gujarat University in the causetitle and memorandum of the petition), whereby, it has been resolved to process the application of respondent No.4 Trust for affiliation of the proposed commerce college, the recommendation dated 11.06.2013, of respondent No.3 University for the grant of in principle prior approval, as well as the order dated 27.06.2013, passed by the State Government, granting inprinciple prior approval in favour of the proposed college of respondent No.4 Trust. Certain other subsidiary reliefs flowing from the above three main prayers have also been sought.

2. Briefly stated, the relevant facts of the case Page 2 of 90 HC-NIC Page 2 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT are that the petitioner is a public charitable Trust duly incorporated and registered under the Bombay Public Trust Act, 1950. It is running two colleges, namely (1) C.N. Arts and B.D. Commerce College since 1963, (2) M.M.Shah Mahila Arts College since 1991 and (3) Self Financed English Medium Commerce Division of C.N.Arts and B.D.Commerce College, with effect from 201011.

The petitioner manages and runs these colleges in Kadi town. According to the petitioner, the colleges run by it have the intake capacity of 300 (260+40) students in each class of grantin aid colleges. The petitioner Trust is not getting sufficient number of students because many students are opting for different courses. Most of the students who can afford to do so, are opting to take their education at other colleges in nearby big cities. The strength of the students in the selffinanced English medium division of the Commerce College is steadily decreasing. In order to substantiate this aspect, the petitioner has placed on record the yearwise chart of the students' enrollment in Page 3 of 90 HC-NIC Page 3 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT its colleges, at AnnexureA to the petition.

3. Respondent No.4 Trust applied to respondent No.3 University for the affiliation of the proposed Ganeshbhai Nagjibhai Patel Commerce College for the B.Com. course in the English medium (hereinafter referred to as "the new college"), with effect from June 2013. It is the case of the petitioner that even before receiving the inprinciple prior approval, respondent No.4 had been admitting students in the first year B.Com. course of the new college. According to the petitioner, in order to make an application for affiliation, it is a condition precedent to obtain a "No Objection Certificate" (NOC) from any other existing affiliated college situated within the radius of twentyfive kilometers of the new college. The college run by the petitioner being one such, the petitioner refused to issue a No Objection Certificate to respondent No.4. Despite the fact that this requirement is reflected in the application form, the respondent University, by way of the impugned Resolution dated 30.04.2013, has done Page 4 of 90 HC-NIC Page 4 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT away with the requirement of obtaining a NOC after the form was filled up by respondent No.4, as the petitioner has refused to grant it.

4. The grievance of the petitioner is that the Executive Council of respondent No.3 University has made a recommendation to the State Government for the grant of inprinciple prior approval to run the new college to respondent No.4 Trust, in a manner that is de hors the provisions of the Hemchandracharya North Gujarat University Act, 1986 ("the Act" for short), as well as the Government Resolution dated 21.12.2001.

5. According to the petitioner, the present case is similar to another case regarding respondent No.4 College, wherein the present petitioner had earlier challenged the action of granting affiliation to a college run by respondent No.4. The judgment dated 26.09.2007 passed by this Court (Coram: Hon'ble Mr.Justice D.A.Mehta) in the case of M.P. Education Society v. The State of Gujarat & Ors. Special Civil Application Page 5 of 90 HC-NIC Page 5 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT No.14169 of 2007 has been produced on record at AnnexureB and similar directions as contained in the said judgment, are prayed for by the petitioner herein.

6. It is the case of the petitioner that it is incumbent upon the University and its authorities to act in accordance with the provisions of the Act. According to the petitioner in the present case, the Executive Council of the University has acted in breach thereof. Hence, the petition.

7. Mr.Abhimanyu Rathod, learned advocate appearing for Mr.Mehul H.Rathod, learned advocate for the petitioner, has made detailed submissions, the gist of which is reproduced hereinbelow:

(I) Referring to Section 22 of the Act it is pointed out that Section 22(1) confers power upon the Academic Council of the respondent University to have the control and general regulation of, and be responsible for, the maintenance of the standards of teaching and examinations in the University. Clause (xii) of Page 6 of 90 HC-NIC Page 6 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT subsection (2) of the said Section envisages another role for the Academic Council, which is to make a recommendation to the Executive Council regarding the affiliation of a college and the recognition or approval of an institution. Reference has also been made to Clause (xvi) of subsection (2) of Section 22 which empowers the Academic Council to exercise such powers and perform such other duties as may be conferred or imposed upon it by the Act, Statutes, Ordinances and Regulations of the University. It is submitted that these provisions of law make it amply clear that the Academic Council is empowered to make recommendations to the Executive Council for the affiliation of a college and the recognition or approval of an institution. Where the question is one of affiliation of a college, the role of the Academic Council cannot be sidelined or ignored and the Executive Council cannot take a decision on its own by disregarding the view of the Academic Council.

(II) Referring to Section 35 of the Act, it Page 7 of 90 HC-NIC Page 7 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT is submitted that this Section exhaustively deals with the requirements of affiliation, recognition and approval and lays down the procedure that is required to be followed in this regard by the Executive Council and Academic Council at every stage. In particular, the provisions of Section 35(2)(a), require that a college applying for affiliation must satisfy the Executive Council and the Academic Council that it will supply a need in the locality having regard to the type of education intended to be provided by it, keeping in mind the existing provisions for the same type of education made by other colleges in the neighborhood and the suitability of the locality where the college is intended to be established.

(III) By referring to Clause (i) of sub section (2) of Section 35, it is submitted that this clause requires the college to satisfy the Executive Council and the Academic Council that the college rules fixing the fees (if any) to be paid by the students have not been so framed as to involve such competition with any existing Page 8 of 90 HC-NIC Page 8 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT college in the same neighbourhood as would be injurious to the interest of education. Learned counsel for the petitioner submits that a reading of the above provisions makes it clear that the intention is to see that the fees will not be fixed in a manner inducing unhealthy competition with any existing college in the neighbourhood.

(IV) It is submitted that in the present case, there is no need for the new college to run the course of B.Com. as the petitioner is already running such a course. If the new college is permitted to enroll students in a similar course, it would create unhealthy competition for the petitioner College. If the table at Annexure A is perused, it shows that year by year, from the year 201011 upto 2013 14, the actual admissions in the petitioner's college have been deteriorating. This is especially so since the year 201314, when the new college started enrolling students.

(V) It is further submitted that the Page 9 of 90 HC-NIC Page 9 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT guidelines framed by the State Government as contained in the Government Resolution dated 21.12.2001 require that a Need Committee be constituted by the University to look into the aspect whether, in the concerned locality, there is a genuine requirement for starting such a course. Learned counsel for the petitioner further submits that this requirement is fortified by the provisions of Section 35(2)(a) of the Act, whereby the new college is obliged to satisfy the Executive Council and the Academic Council that it will supply a need in the locality for the type of education that is intended to be provided by it.

(VI) It is submitted that no Need Committee has been constituted by the respondent University and without assessing the actual requirement or need for such type of education that is offered by the new college, a recommendation has straightaway been made by the Executive Council to the State Government. While doing so, the Executive Council has disregarded the opinion and view expressed by the Academic Page 10 of 90 HC-NIC Page 10 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Council which had recommended that the decision on this issue be deferred. The Executive Council has ignored the role of the Academic Council and has thus acted de hors the provisions of Section 35(2) of the Act.

(VII) Emphasis has been laid upon the provisions of subsection (4) of Section 35 whereby, upon receipt of the application for affiliation, the Executive Council is required to direct a local inquiry to be made by a competent person or persons authorised by it in this regard, in respect of the matters referred to in subsection (2) of Section 35 and such other matters as may be deemed necessary and relevant. It is submitted that the Executive Council is required to appoint a Local Inspection Committee for this purpose after going through the recommendation of the Need Committee and satisfy itself whether there is a need for the affiliation of the new college. It is submitted that the constitution of the Local Inspection Committee has been specifically provided in the guidelines of the State Page 11 of 90 HC-NIC Page 11 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Government wherein it is stated that the Local Inspection Committee shall consist of four members, with two as the quorum. In the present case, the Local Inspection Committee consisted of only three members. Moreover, Section 35(4)

(a) requires that the Executive Council shall appoint the Local Inspection Committee, whereas, in the present case, it is the Vice Chancellor of the respondent University who has appointed this Committee and not the Executive Council. It is further submitted that Clause (d) of sub section (4) of Section 35 envisages that the report of the Local Inspection Committee be placed before the Academic Council which, in turn, will give its opinion and forward it to the Executive Council. This procedure has not been followed by the Executive Council. The Academic Council has recommended the postponing of the decision on the affiliation of the new college by its Resolution dated 25.03.2013. If the Executive Council did not agree with this view expressed by the Academic Council, it was obliged to act as per the proviso to subsection Page 12 of 90 HC-NIC Page 12 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT (4) of Section 35 by referring the matter back to the Academic Council with, or without, its comments. Thereafter, the Academic Council would have to communicate its views again to the Executive Council with regard to the affiliation of the college. It is submitted that the Executive Council has not followed this provision of law by referring the matter back to the Academic Council, therefore, a breach of the statutory provisions has been committed by the Executive Council at every stage.

(VIII) It is next submitted that by the impugned Resolution of the Executive Council, a recommendation has been made to the State Government to grant inprinciple prior approval to the new college, after giving a gobye to the requirements of Section 35 of the Act and without consulting the Academic Council, as required. As the mandatory provisions of Section 35 of the Act have not been followed by the Executive Council, therefore, the entire process recommending the grant of inprinciple prior approval to respondent No.4 College is vitiated. Page 13 of 90 HC-NIC Page 13 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT (IX) By the impugned Resolution dated 30.04.2013, passed by the respondent University, the requirements of taking a NOC from the existing college in the vicinity of twentyfive kilometers before granting affiliation has been cancelled. This Resolution is against the letter and spirit of subsection (2)(a) of Section 35 and the guidelines of the State Government, whereby it is necessary to appoint a Need Committee. The new college has approached the petitioner for a NOC that has been refused by the petitioner. The petitioner filed an application under the Right to Information Act, 2005, asking whether there is any amendment in the HandBook of the respondent University with regard to the requirement of taking an NOC from the existing college within the radius of twentyfive kilometers. In the reply dated 19.07.2013, the University has stated that there is no amendment in the HandBook in this regard. Therefore, it was incumbent upon the University to adhere to this provision and not to scrap it midway through the process by passing the Page 14 of 90 HC-NIC Page 14 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT impugned Resolution which gives an unfair advantage to the new college, to the detriment of the petitioner.

(X) It is urged that the State Government has, by the impugned order dated 27.06.2013, proceeded to grant inprinciple prior approval to respondent No.4 College without taking into consideration the aspect that its own guidelines contained in the Government Resolution dated 21.12.2001, regarding the constitution of a Need Committee and a Local Inspection Committee have been flouted by the respondent University. It is specifically stated in the said Government Resolution that all applications for affiliation of a college are required to be considered as per the said guidelines. The concerned University is required to forward the report for affiliation as per the said guidelines. The State Government has not taken into consideration the aspect that no Need Committee was appointed by the respondent University and that the constitution of the Local Inspection Committee is not as per the guidelines. Without Page 15 of 90 HC-NIC Page 15 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT considering the above aspects, inprinciple prior approval has been granted to respondent No.4 in a hasty manner for the year 201314 onwards. Till date, no formal affiliation has been accorded to the new college.

(XI) It is submitted that the conduct of the new college can be gauged from the fact that even before the grant of inprinciple prior approval by the State Government on 27.06.2013, it had already issued an advertisement dated 04.06.2013, indicating that it is affiliated to the respondent University. This is clear from a copy of the advertisement at AnnexureH to the petition. Respondent No.4 has falsely stated in the advertisement that it is affiliated, when no such affiliation has been granted till date. Respondent No.4 had already started inviting applications from the public at large even before the inprinciple approval was granted by the State Government. In the application of respondent No.4 College to the University, it is stated that the petitioner has refused to grant the NOC in its favour. Even though the said Page 16 of 90 HC-NIC Page 16 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT college does not have the proper infrastructure and buildings as required by the University, its application has been accepted. The new college does not have its own building and proposes to run classes in the building of another college run by it.

(XII) The petitioner has refused the NOC on the express ground that the opening of new college would adversely affect the number of students in the college run by it, which situation has come to pass, as admissions have further reduced. The petitioner is facing unhealthy competition from the new college run by respondent No.4 though the need for the new college has not been established. There is no material on record to show that respondent No.4 could satisfy either the Executive Council or the Academic Council to start the college. (XIII) It is contended that in the application made by respondent No.4, there is a Column No.5 asking whether the opening of the new college would adversely affect the existing college and Page 17 of 90 HC-NIC Page 17 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT whether a NOC has been granted. To this, respondent NO.4 has merely answered "No". The conditions prescribed for the grant of in principle prior approval have not been fulfilled by respondent No.4.

(XV) Referring to the judgment dated 26.09.2007, passed by this Court in M.P. Education Society v. The State of Gujarat & Ors. (supra), it is submitted that the said case was similar to the case in hand. This Court, after considering the provisions of Section 35 of the Act in detail, arrived at a conclusion that the action of the respondent University in recommending prior approval and the grant thereof by the State Government in favour of the respondent college therein, sought to be started by the very same Trust (respondent No.4), being in contradiction of the provisions of the statute, could not be sustained. This Court directed that the students be accommodated in nearby colleges without considering any break in the period of study. Similar directions be issued in this case, as well.

Page 18 of 90 HC-NIC Page 18 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT (XVI) Lastly, it is submitted that the new college is running without any recommendation or affiliation, only on the basis of the in principle prior approval granted by the State Government which has been obtained without following the prescribed procedure, therefore, the prayers made in the petition may be granted.

8. In support of the above submissions, reliance has been placed upon the following judgments:

(a) Shri Morvi Sarvajanik Kelavani Mandal Sanchalit MSKM Bed College v. National Council For Teachers' Education And Others - (2012)2 SCC 16

(b) Adarsh Shiksha Mahavidyalaya And Ors.

v. Subhash Rahangdale And Others - (2012)2 SCC 425

(d) Prabhudas Thakkar College Of Arts v. State of Gujarat - 1982(1) GLR 701

(e) Madresa Moinul Islam Kelavani Mandal v. State of Gujarat - 1994(1) GCD 387

9. Ms.Snusha Joshi, learned Assistant Government Pleader, appearing for respondents Nos.1 and 2, Page 19 of 90 HC-NIC Page 19 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT has argued mainly on the basis of the averments made in the affidavitinreply by submitting that the concerned Department of the State Government received a proposal from the respondent University vide letter dated 11.06.2013 for the grant of inprinciple prior approval to the new college run by respondent Trust. It is only after considering the recommendation of the respondent University that the State Government has granted the in principle prior approval. The University was not called for giving any explanation before granting the said approval. Referring to the Government Resolution dated 21.12.2001, learned Assistant Government Pleader submits that this Resolution prescribes for the grant of in principle prior approval and lays down a specific timeframe for the said purpose. The State Government has acted as per the said Government Resolution, therefore, its action does not suffer from any legal infirmity.

10. Ms.Shivani Rajpurohit, learned advocate for respondent No.3 University, has submitted that Page 20 of 90 HC-NIC Page 20 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT the respondent University has a primary objection to the locus standi of the petitioner to object to the inprinciple prior approval granted to the new college run by respondent Trust, as the only endeavour on the part of the petitioner is to see that no new college is started within the radius of twentyfive kilometers without obtaining an NOC from it. It is further elaborated that there is no requirement in the Act or Statutes or Ordinances of the University that a new college cannot be started within the radius of twentyfive kilometers without obtaining an NOC from the existing college in the area. Such a procedure, though was followed in the past, was without the sanction of the statute. It has now been done away with by the Resolution passed by the University on 30.04.2013.

11. It is submitted that the petitioner has taken the ground of unhealthy competition if there are more than one colleges imparting education in the same course, as the petitioner is desirous of creating a monopoly for itself.

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12. That the respondent University has not committed a breach of any of the provisions of the statute while recommending the case of the college run by respondent No.4 Trust for the grant of in principle approval to the State Government. The only prayer made against respondent No.3 is regarding the passing of the Resolution doing away with the requirement of taking the NOC from the existing college, if a new one offering the same course is proposed to be opened within a radius of twentyfive kilometers. No provision of the Act or Ordinance prescribes such a restriction, therefore, the resolution passed by the University cannot be faulted.

13. Referring to the provisions of the proviso to Section 35(4) of the Act, learned counsel for the respondent University has submitted that the stipulations in the proviso have been followed by the University. As the Academic Council did not express any view, there was no requirement of referring the matter back to it by the Executive Council. It is submitted that the prayers sought in the petition are detrimental Page 22 of 90 HC-NIC Page 22 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT to the interest of the students and society at large. Referring to Paragraph2 of the affidavitinreply filed by the University wherein it is so stated, learned counsel for the University has submitted that the petitioner is seeking to debar any new commerce college from opening in the vicinity for commercial advantages and is seeking to take recourse under the Act which, in no way, debars the opening of a new college within the radius of twentyfive kilometers. The standard of education is required to be preserved and protected rather than introducing monopolistic practices in the field of education.

14. On the basis of the above submissions, it is prayed that the petition be rejected.

15. Mr.Sunit S.Shah, learned advocate, has appeared for Mr.Omkar C.Dave, learned advocate for respondent No.4 Trust. He has submitted that at present, sixtyfive students have been admitted in the First Year B.Com course. The Second Year B.Com. course has fiftyfive students and in the Page 23 of 90 HC-NIC Page 23 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Third Year B.Com. course, there are sixtytwo students. Classes for the Second Year and Third Year B.Com. courses have already started on 17.06.2016. Any adverse order, therefore, would be detrimental to the interest of the students.

16. It is further submitted that respondent No.4 has started the college after inprinciple prior approval has been granted to it by the State Government.

17. Insofar as the requirement of consultation of the Academic Council by the Executive Council is concerned, Mr.Shah has taken the Court through the provisions of Section 35 of the Act. It is submitted that subsection (2)(a) of Section 35 envisages that the college applying for affiliation would have to satisfy the Executive Council and the Academic Council that it would supply a need in the locality. With regard to the proviso to subsection (4) of Section 35, it is submitted that the contention on behalf of the petitioner, that the stipulation in the proviso is not complied with and the Executive Page 24 of 90 HC-NIC Page 24 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Council should have referred the matter back to the Academic Council is incorrect, as no view was taken by the Academic Council and the matter was deferred. The proviso only speaks of the disagreement of the Executive Council with the view expressed by the Academic Council, in which case, the matter would have to be referred back to the Academic Council. In the present case, no such requirement arose. The proviso to Section 35(4), therefore, would not be attracted in the present case.

18. By referring to Section 22 of the Act, it is submitted that the power and duties of the Academic Council are only with respect to the control and general regulation and maintenance of the standards of teaching and examinations in the University. It is mainly in academic matters that the Academic Council would have to be consulted. Referring to Section 22(2)(xii), it is submitted that the recommendation to the Executive Council for affiliation of a college and recognition or approval of an institution by the Academic Council, as provided in this Page 25 of 90 HC-NIC Page 25 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT clause, has to be read as being applicable to academic matters only. The objections raised by the petitioner are not concerning academic matters. They fall exclusively within the domain of the Executive Council and not the Academic Council.

19. With regard to the Government Resolution dated 21.12.2001, wherein it is stipulated that the University should appoint a Need Committee to look into the aspect whether the new college would supply a need in the locality, it is submitted that the said guidelines do not have statutory force. The Act, Rules, Ordinances and Regulations of the University do not stipulate that a Need Committee be appointed. The guidelines of the State Government, having no statutory force, are not required to be followed in the absence of any corresponding provision in the Act, Rules, Statutes and Ordinances of the University. Even if there is noncompliance of the said guidelines by the University, it is merely an irregularity and not an illegality that would vitiate the recommendation of the Page 26 of 90 HC-NIC Page 26 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT University. The prayers made in the petition, therefore, deserve to be rejected.

20. Referring to the judgment in the case Madresa Moinul Islam Kelavani Mandal v. State of Gujarat (supra), it is submitted that respondent No.4 would also rely on Paragraphs 7 to 9 of this judgment which discuss the Scheme of Section 35 of the Act. It is submitted in the context of this judgment that it is the State Government that takes a decision and the role of the University is only recommendatory. The decision of the State Government is not open to inquiry.

21. Next referring to the judgment in the case of Adarsh Shiksha Mahavidyalaya And Ors. v. Subhash Rahangdale And Others (supra), it is submitted that this decision would not have any application to the case in hand regarding the interpretation of Section 35 of the Act inasmuch as it relates to the National Council for Teacher Education Act, 1993, the provisions of which are different from those of the Act under Page 27 of 90 HC-NIC Page 27 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT which the respondent University has been constituted. It is submitted that this judgment has been rendered in the context of Sections 14, 15 and 17 of the said Act, therefore, its ratio would not be applicable in the present case.

22. Distinguishing the judgment of this Court in Prabhudas Thakkar College Of Arts v. State of Gujarat (supra), regarding the constitution of a Need Committee, it is submitted that the said judgment would not be applicable to the facts of the present case as in the said case, the issue of Section 35 did not arise simply because the judgment was rendered in the year 1982, whereas Hemchandracharya North Gujarat University was constituted under the Act in the year 1986.

23. On the above grounds, it is submitted that the petition may be rejected.

24. In rejoinder, Mr.Abhimanyu Rathod, learned advocate for the petitioner, has reiterated the submissions advanced earlier and has further contended that the satisfaction of the Executive Council and the Academic Council regarding the Page 28 of 90 HC-NIC Page 28 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT need of starting a new college in the locality is a statutory requirement under Section 35(2)

(a). This requirement can only be fulfilled if a Need Committee is appointed as per the guidelines of the State Government. This Committee has not been appointed in the present case.

25. It is submitted that the ratio in the case of Prabhudas Thakkar College Of Arts v. State of Gujarat (supra), is relevant as it deals with the provisions of Section 33(2) of the Gujarat University Act, 1949, which are parimateria with Section 35 of the present Act. It is the principle that is to be seen in a judgment and the principle of law enunciated in Prabhudas Thakkar College Of Arts v. State of Gujarat (supra) would be applicable to the facts of the present case. The satisfaction regarding the need to appoint a new college offering the same course is a mandatory one and no affiliation can be granted to any college by bypassing the said requirement.

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26. It is further submitted that the role of the Academic Council, as envisaged by the Act, at every stage, cannot be ignored as has been done in the present case. The Academic Council is an expert body consisting of academicians whose role is to have a say in the matter of affiliation of a new college as the college would be concerned with academics. The role of the Academic Council is vital to assess the need to open a new college offering the same course of study.

27. Referring to Section 22 of the Act, it is submitted that the powers and duties of the Academic Council cannot be limited only to the maintenance of standards when a further role has been prescribed to it in the matter of recommendation to the Executive Council regarding the affiliation, recognition or approval of an institution, under Section 22(2)

(xii). Further, Clause (xvi) of Section 22(2) empowers the Academic Council to exercise such powers and perform such other duties as may be conferred or imposed upon it by the Act, Page 30 of 90 HC-NIC Page 30 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT statutes, ordinances and Regulations of the University. As Section 35 envisages a clear and important role for the Academic Council, the University cannot act de hors the said provisions by underplaying the role of the Academic Council.

28. It is next submitted with regard to the proviso to Section 35(4)(d) that a definite view was expressed by the Academic Council to defer the matter, therefore, if the Executive Council did not agree to it, the matter ought to have been referred back to the Academic Council.

29. Regarding the admission of students to the college run by respondent No.4, it is submitted that under the circumstances, the admissions are invalid. The State Government has not carried out any inquiry as contemplated by Section 35(5) of the Act, but has mechanically granted the in principle prior approval. No need has been established to open the college and the petitioner has suffered as the opening of the college by respondent No.4 has adversely Page 31 of 90 HC-NIC Page 31 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT affected the intake of students in its college.

30. On the above grounds, it is reiterated that the petition be allowed.

31. This Court has heard learned counsel for the respective parties at length and has thoughtfully considered the rival submissions and the documents on record.

32. Before dealing with the respective submissions, it would be necessary to refer to the relevant provisions of the Act.

33. Section 2(1) defines "affiliated college" to mean a college affiliated under Section 5 or Section 35. Section 2(9) defines "recognized institution" to mean an institution recognized under Section 37 of the Act. There is no dispute regarding the fact that the new college run by respondent No.4 Trust has not yet received affiliation or recognition, therefore, it does not fall under the definition of an "affiliated college" or a "recognized institution". The said college is being run on the strength of the Page 32 of 90 HC-NIC Page 32 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT inprinciple prior approval granted by the State Government dated 27.06.2013. This prior approval has been granted from the academic year 201314 onwards and is continuing till date.

34. Section 15 of the Act, which falls under Chapter IV, deals with the authorities of the University. Clause (ii) of Section 15 mentions the Executive Council and Clause (iii) mentions the Academic Council. Both the above bodies are authorities of the respondent University.

35. The Executive Council is the Executive Authority of the University and its composition is described in Section 19. The powers and duties of the Executive Council are laid down in Section 20 of the Act, and are mostly executive, financial and administrative in nature.

36. Section 21 refers to the Academic Council and its constitution and the terms of its members. Section 22 of the Act defines the powers and duties of the Academic Council. Subsections (1) and (2) thereof are the relevant clauses for the purposes of this petition and are reproduced Page 33 of 90 HC-NIC Page 33 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT below:

22. (1) The Academic Council shall have the control and general regulation of, and be responsible for, the maintenance of the standards of teaching and examinations with the University.

(2) Without prejudice to the generality of the foregoing provisions and subject to such conditions as may be prescribed by or under the provisions of this Act, the Academic Council shall exercise the following powers and perform the 'following duties, namely:

... ... ...

(xii) to recommend to the Executive Council affiliation of a college and recognition or approval of an institution;

... ... ...

(xvi) to exercise such other powers and perform such other duties as may be conferred or imposed on it by this Act, Statutes, Ordinances and Regulations; and (xvii) generally to advise the University on all academic matters."

(emphasis supplied) Page 34 of 90 HC-NIC Page 34 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

37. Chapter VI of the Act titled, "Affiliation, Recognition and Approval" is relevant for the context of the present petition. In the said Chapter, the most important provision is Section

35. The issue raised in the petition has not gone beyond the stage provided by this Section. Subsection (1) of Section 35 contemplates that a college applying for affiliation to the University shall send a letter of application to the Registrar not later than 31st March of the year preceding the year in which the college is proposed to be started. Much turns upon a reading of subsection (2)(a) of Section 35 which is reproduced hereinbelow:

"35. (1) ... ... ...

(2) A college applying for an affiliation shall satisfy the Executive Council and the Academic Council

(a) that the college will supply a need in the locality, having regard to the type of education intended to be provided by the college, the existing provisions for the same type of education made by other colleges in neighborhood and the suitability of the locality where the college is to be established;

Page 35 of 90

HC-NIC Page 35 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT ... ... ..."

(emphasis supplied) Subsections (4) and (5) of Section 35 are also required to be reproduced as under:

"35. (4) On receipt of a letter of application under subsection (1), the Executive Council shall

(a) direct a local inquiry to be made by a competent person or persons authorised by the Executive Council in this behalf in respect of the matters referred to in sub section (2) and such other matters as may be deemed necessary and relevant;

(b) make such further inquiry as may appear to it to be necessary;

(c) give due consideration to the request if any, made by the applicant for reconsideration of any of the conditions conveyed to him;

(d) record its opinion after consulting the Academic Council on the question whether the application should be granted or refused either in whole or in part, stating the result of any inquiry under clauses (a) and (b);

Page 36 of 90

HC-NIC Page 36 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Provided that where the views of the Academic Council with regard to the affiliation of a college are not acceptable to the Executive Council, the Executive Council shall refer the matter again to the Academic Council, with or without its comments, and the Academic Council shall communicate again to the Executive Council its views with regard to the affiliation of the College.

(5) The Registrar shall submit the application and all proceedings, if any, of the Academic Council and the Executive Council relating thereto to the State Government which shall after such inquiry as may appear to it to be necessary, grant or refuse the application or any part thereof.

                               ...                ...              ..."

                                                           (emphasis supplied)

38. By way of exhaustive guidelines, the State Government has laid down a procedure that is required to be followed for processing the applications requesting for the grant of affiliation of colleges to Universities. These guidelines are contained in the Government Page 37 of 90 HC-NIC Page 37 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Resolution dated 21.12.2001. Clause (1) of the said Resolution defines the procedure to be followed by the concerned University. The relevant clause is No.(4) which lays down the stages and the procedure to be followed by the concerned University. Subclause (a) of Clause (4) states that the University is required to appoint a Need Committee that shall look into the aspect whether the new college would supply a need in the locality by starting new courses by seeking affiliation with the University. The Need Committee would make an inquiry, taking into consideration the need for the course, keeping in mind the Rules, Regulations and Instructions of the University Grants Commission, the State Government and other authorities. Thereafter, the Need Committee of the University would submit its Report.

39. Subclause (b) of Clause (4) contemplates the appointment of a Local Inspection Committee by the Executive Committee to look into the Report of the Need Committee. The Local Inspection Committee would look into the infrastructure, Page 38 of 90 HC-NIC Page 38 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT facilities, eligibility and other relevant aspects apart from the need for the establishment of a new college and submit its Report to the University. It is expressly stipulated that the Local Inspection Committee should consist of a minimum of four members and the quorum would compulsorily be of three members.

40. The role of the Academic Council has been mentioned in subclause (c) of Clause (4) of the said Government Resolution. It is stated that the Report of the Local Inspection Committee shall be placed before the Academic Council as soon as it is received and after going through the same, the Academic Council, and the Executive Council would make their recommendations. Subclause (d) of Clause (4) and Clause (5) contemplate that in the event that the recommendation of the Academic Council, which is placed before the Executive Council, is positive and the Executive Council agrees with the view of the Academic Council, then the application would be sent to the State Page 39 of 90 HC-NIC Page 39 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Government along with a list of the necessary conditions that are to be fulfilled by the new college, with intimation to the said college. In the event that the opinion of the Academic Council is negative, the Report would be sent to the State Government with prior information to the new college by the Registrar of the University.

41. The role of the State Government has been described in Clause (2) of the Government Resolution, which is that of granting in principle prior approval. A timeframe has been provided for the said purpose. The concerned University is required to send the recommendation for affiliation to the State Government before the academic year begins. The State Government would then take a decision whether inprinciple approval is to be granted to the concerned college, or not. In the event that the approval is conditional upon the fulfillment of certain conditions, a specific timeframe is to be laid down for the satisfaction of the said conditions. However, no Page 40 of 90 HC-NIC Page 40 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Notification regarding conditional affiliation can would be issued in those circumstances.

42. In this background, the Court may now examine the salient submissions advanced on behalf of the parties.

43. It has been submitted on behalf of the petitioner that the aspect whether the new college will supply a need for the type of education intended to be provided in the locality is a statutory requirement under Section 35(2)(a) of the Act. On the other hand, learned counsel for respondent No.4 has submitted that the guidelines of the State Government containing the requirement for the establishment of a Need Committee do not have statutory force, as there is no specific stipulation in the Act, Ordinances or Statutes of the University regarding the appointment of a Need Committee. It is contended that the fact that no Need Committee was appointed by the University in the present case to look into the need for opening the new college run by Page 41 of 90 HC-NIC Page 41 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT respondent No.4 does not vitiate the recommendation made by the University in favour of respondent No.4 for the grant of inprincipal prior approval, or the grant thereof by the State Government.

44. The importance of satisfying the University that there is a need or requirement of the type of education proposed to be offered by the new college, having regard to the existing colleges in the neighbourhood, has been discussed by this Court in Prabhudas Thakkar College Of Arts v. State of Gujarat (supra) in the following terms:

"4. The impugned order of the State Government cannot obviously be sustained since it has taken into consideration the material which cannot be said to be relevant and germane for determining whether the college seeking affiliation would cater to the need in the locality One of the relevant criteria which has a bearing on the question as to whether the college would supply the need in the locality is "the existing provision for the same type of Education made by other colleges in the neighbourhood.

Page 42 of 90

HC-NIC Page 42 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT The provision which should be borne in mind by the Executive Council while determining the question whether a college would serve the need in the locality is one which is already made by other colleges in the neighbourhood. On plain reading of Sub section (2) it is clear that one of the relevant factors which should be borne in mind by the Executive Council is the provision as it existed on the relevant date when the Council is called upon to determine the question whether the college seeking affiliation would cater to the need of the locality. To construe the existing provisions made by the other colleges for the same type of education as to mean the potentiality of the college or its capacity to absorb more students by making necessary provision in future with the permission of the University, would amount to rewriting the provision. The capacity which the existing colleges would acquire for absorbing more students by necessary expansion with the permission of the University cannot be said to be included in existing provision already made. The tenor, the tense and the concept of the relevant factor, namely, the existing provision...made...clearly indicate that the future expansion which a particular college is capable of undertaking cannot be allowed Page 43 of 90 HC-NIC Page 43 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT to influence the decision of the Executive Council and, therefore, of the appellate authority. To consider the future expansion of the existing colleges to be implicit in the factor prescribed under Section 33(2) when it enjoins that it is only the existing provision made is to be considered would open up the vistas for many imponderances and uncertainties which could not be strictly said to be relevant or germane to the main question. The appellate authority has therefore, clearly erred and considered the aspect which is not prescribed by the Legislature in Section 33(2) when it observed and held as under:

""The question is as to what meaning should be assigned to the words the existing provision. It appears that the contention of the University is that this expression will include with the colleges at the given point of time, but also their capacity to absorb more students by necessary expansion with the permission of the University. This contention appears to be founded. The University is the best judge and it is within its power to decide whether the need is to be met by providing expansion to the existing colleges or by granting affiliation to new colleges. In this case, the University had decided to meet the need by permitting expansion to the existing colleges and it cannot be said that this decision of the University is unreasonable or illegal. The University has also stated that the reasonably Page 44 of 90 HC-NIC Page 44 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT expected overflow will not be of such an order as to justify the opening of a new institution.""

In my opinion, the appellate authority completely abdicated its function inasmuch as it left the entire question to be decided to the judgment of the University since the need can be catered to by providing expansion of existing colleges then by opening new colleges. This would, in my opinion, substitute a criteria which is not prescribed in Section 33(2). The governing criteria as stated above, is that where the proposed college seeking affiliation would or would not serve the need of the locality is to be considered it should be in the light of facilities existing for some type of education at the time when such permission for affiliation is sought. In other words, it is only that situation as it existed at the relevant time is to be borne in mind. In that view of matter, therefore, the appellate authority has allowed its decision to be influenced by the factor which is neither relevant nor germane to the determination of the question about the catering of the need by the proposed college and, therefore, its order dismissing the appeal of the petitionertrust is vitiated. The appellate authority lost sight of one most Page 45 of 90 HC-NIC Page 45 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT important fact that the Executive Council had already disapproved the recommendation of the Need Committee to permit every existing Commerce college to open one more division. The appellate authority committed an error apparent on record in implicitly accepting a bare oral statement of the representative of the University about probable expansion contrary to resolution of Executive Council refusing expansion as aforesaid."

(emphasis supplied)

45. Though this judgment deals with the provisions of Section 33 of the Gujarat University Act, 1949, the said provision is substantially similar to Section 35 of the present Act, therefore, the principle of law laid down in this judgment would be applicable.

46. In order to clearly bring out the factual situation whether there is a need for the type of courses that are proposed by the new college in the locality as are already being offered by an existing college, the requirement for the appointment of a Need Committee by the University has been laid down by the State Page 46 of 90 HC-NIC Page 46 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Government in the Government Resolution dated 21.12.2001. It may be true that this Government Resolution is in the nature of executive instructions which cannot override the provisions of a statute. Though the Act does not specifically prescribe the appointment of a Need Committee, it does not debar it either. It remains to be seen whether the requirement of establishing a need in the locality is de hors the Act, or not. Section 35(2)(a) does not clearly stipulate that a specific committee named the Need Committee be constituted to look into the aspect whether the new college would supply a need for the same kind of education in the neighbourhood where the existing college is already offering the same courses. There is no bar upon the University to appoint a Committee in order to carry out the purposes of the Act. The said Section clearly stipulates that the onus is on the college applying for affiliation to satisfy the Executive Council and the Academic Council that it would supply a need in the locality, having regard to the type of Page 47 of 90 HC-NIC Page 47 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT education intended to be provided it and the existing provisions for the same type of education in other colleges in the neighbourhood, apart from the suitability of the locality where the college is proposed to be established. It is evident that the condition precedent for fulfilling the mandate of Section 35(2) is that there should be a need in the locality. Only then can the new college satisfy the authorities of the University that it is capable of satisfying such a need. When the need has not been established in the first place by respondent No.4, there can be no question of the satisfaction of the Executive Council and the Academic Council. The guidelines of the State Government in this regard are, therefore, logical and in consonance with the requirements of Section 35(2) of the Act.

47. It would be relevant to peruse the application made by respondent No.4 for opening the new college, sent under the covering letter dated 28.03.2012. Column No.6(2) of the application requires the applicant (respondent No.4) to Page 48 of 90 HC-NIC Page 48 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT state the name of the educational institute in the locality which is offering the same type of educational courses. In answer to the said column, respondent No.4 has indicated B.D.Commerce College, Kadi, which is run by the petitioner. Column No.6(3) requires the applicant to state whether there is any college offering the same educational courses within the radius of 25 to 30 kilometers from the new college. In reply, respondent No.4 has said "yes". Column No.6(4) requires the applicant to name the said college, to which the applicant has replied as "B.D.Commerce College, Kadi" (the petitioner's college). Column No.6(5) is important. It directs the applicant to state whether the opening of the new college would have an adverse effect upon the students of the existing college and whether the existing college has granted a NOC. To both these questions, respondent No.4 has written, "No". Meaning thereby, that it has, of its own accord, arrived at the conclusion that the opening of the new college by it would not have an adverse Page 49 of 90 HC-NIC Page 49 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT effect upon the students of B.D. Commerce College, run by the petitioner. No reasons are given for this reply. The petitioner has not granted an NOC to respondent No.4, therefore, the answer in the negative in the context of the query regarding an adverse effect is questionable. One also wonders how respondent No.4 has unilaterally arrived at the conclusion that the opening of its new college would not adversely effect the students of the petitioner's college. There is no material on record on the basis of which it can be said that respondent No.4 has succeeded in satisfying the Executive Council that the opening of its new college would supply a need in the locality. The fact that the Academic Council had not formed an opinion regarding its satisfaction in this regard is evident from its Resolution dated 30.04.2013, stating that the decision be deferred. The Executive Council has not dealt with this issue or even stated that it has arrived at a satisfaction in this regard but has simply accepted the version of respondent No.4. Page 50 of 90 HC-NIC Page 50 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

48. It is an admitted fact that no committee has been constituted by the respondent University to look into the aspect whether there is an existing need in the locality for the opening of the new college offering the same educational courses as the petitioner's college. The requirement of establishing this aspect is a statutory one, as can be gathered from Section 35(2)(a). It, therefore, is a relevant criteria that has to be fulfilled by respondent No.4, by placing cogent material on record. No such material has been placed on record by the respondent University, on the basis of which it can be said that respondent No.4 has successfully established, to the satisfaction of the Executive Council and the Academic Council, that there is a genuine requirement for the opening of the new college by it, offering the same courses as those offered by the petitioner's college. The requirement of satisfying both the Executive Council and the Academic Council cannot be brushed aside by the University and the State Government. The Page 51 of 90 HC-NIC Page 51 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT importance of appointing a Need Committee flows from this statutory requirement.

49. It is relevant to note that the application form of respondent No.4 Trust was submitted vide the covering letter dated 28.03.2012. The criteria mentioned in the application form is required to be fulfilled by respondent No.4 and cannot be changed by the University after its submission, as has been done by the respondent University, by passing the impugned Resolution dated 30.04.2013. The case of respondent No.4 for affiliation of its new college has to be considered in terms of the information that was sought by the University in the application form and the replies given by respondent No.4. No new criteria can be added or the existing criteria deleted later on. By passing the impugned Resolution dated 30.04.2013 the University has apparently tried to come to the rescue of respondent No.4 by doing away with the requirement of obtaining an NOC from the petitioner, which has been refused. The said resolution of the University, therefore, raises Page 52 of 90 HC-NIC Page 52 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT many doubts. This Resolution does not state the reasons why such a decision was taken, what aspects were considered and whether the aspect regarding the satisfaction of a need in the vicinity, as required by Section 35(2)(a), was also taken into consideration.

50. It may be true that the requirement of taking an NOC from the existing institution is not a statutory one. However, this requirement is reflected in the Handbook of the University which receives wide publication amongst the public at large as well as on the application form for affiliation of a new institution. If the University was desirous of doing away with this requirement, it should have done so before the application form of respondent No.4 was accepted. However, after having accepted the application form, the said requirement becomes one of the relevant criteria which cannot be changed later on at the whims and fancies of the University, especially when the need for opening the new college with similar courses has not been established satisfactorily. Page 53 of 90 HC-NIC Page 53 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

51. It is for this reason that the Academic Council has, by its Resolution dated 25.03.2013, recommended that the decision regarding the affiliation of the new college be deferred. To take a conscious decision to defer a matter amounts to a definite view expressed by the Academic Council, which has not formed a satisfactory opinion regarding the need for the opening of the new college. The Resolution of the Academic Council is based upon the Report submitted by the Local Inspection Committee. The recommendation for deferment of the decision is, therefore, an informed one taken after due deliberation and based on reasons contained in the said report.

52. Section 35(2)(a) speaks of the satisfaction of both the Executive Council and the Academic Council. Though the two authorities of the University may be operating in different spheres, however, it is settled law that when the statute commands a certain thing to be done in a particular way, it has to be done in that manner only. The satisfaction of the Academic Page 54 of 90 HC-NIC Page 54 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Council cannot be bypassed or ignored, in contradiction to the provisions of the statute. On the contrary, by hastily recommending the case of respondent No.4 to the State Government, the Executive Council has tried to circumvent the requirement regarding the satisfaction of the Academic Council, by passing the impugned Resolution.

53. A submission has been advanced by Mr.Sunit S.Shah, learned advocate for respondent No.4 that the powers and duties of the Academic Council as envisaged in Section 22(1) are only regarding the control and general regulation of and maintenance of the standards of teaching and examinations of the University and that clause

(xii) of subsection (2) of the said Section, regarding the making of a recommendation to the Executive Council for the affiliation of a college, should be read in the light of sub section (1) of Section 22. This Court is unable to accept this contention advanced by learned counsel.

Page 55 of 90 HC-NIC Page 55 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

54. Subsection (2) of Section 22 clearly stipulates as below:

"22.(2) Without prejudice to the generality of the foregoing provisions and subject to such conditions as may be prescribed by or under the provisions of this Act, the Academic Council shall exercise the following powers and perform the 'following duties, namely .........

(emphasis supplied) Clause (xii) of subsection (2) of Section 22 regarding the recommendation of the Academic Council to the Executive Council regarding the affiliation of a college and recognition or approval of an institution, cannot be read as being subservient or confining the powers and duties of the Academic Council only to sub section (1) of Section 22, which speaks of the control and general regulation of and responsibility for the maintenance of the standards of teaching and examinations of the University. Subsection (2) clearly stipulates that the powers and duties of the Academic Council are without prejudice to the generality Page 56 of 90 HC-NIC Page 56 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT of the foregoing provisions, namely subsection (1) of Section 22. The power and duty vested in the Academic Council to have the control and general regulation of, and be responsible for, the maintenance of the standards of teaching and examinations in the University, is different from the express power to recommend to the Executive Council regarding the affiliation of a college and recognition or approval of an institution. Clause (xii) of subsection (2) of Section 22 cannot be read down in the manner suggested by learned counsel for respondent No.4. The specific powers and duties vested in the Academic Council by the Act cannot be eroded or ignored by any other authority of the University. Clause (xvi) of subsection (2) of Section 22 envisages that one of the powers and duties of the Academic Council is to exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Act, Statutes, Ordinances and Regulations of the University. This clause further fortifies the view of the Court that the Page 57 of 90 HC-NIC Page 57 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT powers and duties of the Academic Council as clearly envisaged in clause (xii) of subsection (2) of Section 22 are absolute and the role of the Academic Council in this regard cannot be diluted.

55. In the light of the above discussion, it becomes apparent that the manner in which the respondent University has issued the impugned Resolution recommending the grant of inprinciple prior approval for the new college reveals a conscious noncompliance of the provisions of Section 35(2)(a) and Section 35(4) and (5) of the Act. The respondent University is bound to strictly follow the procedure envisaged in Section 35. On the other hand, the State Government is bound to ensure that a proper inquiry, as envisaged by Section 35(5), is made and its guidelines contained in the Government Resolution dated 21.12.2001, are strictly complied with before it grants approval. In the present case, the mandatory procedure has not been followed. The respondent University has acted in haste by bypassing the provisions of Page 58 of 90 HC-NIC Page 58 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Section 35 and the State Government has followed suit by recommending the approval in spite of the fact that its guidelines have not been strictly followed.

56. On one hand a submission has been advanced on behalf of the University that the guidelines of the State Government, as contained in the Government Resolution dated 21.12.2001, have no statutory force insofar as the appointment of a Need Committee is concerned and on the other hand the University has chosen to appoint a Local Inspection Committee that is also a requirement in the said Government Resolution. It appears that a pick and choose policy is being followed by the University. Even while appointing a Local Inspection Committee, the University has not followed the guidelines regarding its constitution. The committee should compulsorily consist of four members out of whom three would form the quorum. The committee appointed by the University has only three members. It is not appointed by the Executive Council as required but by the Vice Chancellor. Page 59 of 90 HC-NIC Page 59 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT The Local Inspection Committee fulfills an important role as the members of that Committee can undertake spot inspection and decide whether the buildings and infrastructure of the new college are in accordance with the prescribed requirements, or not. The University has chosen to appoint the Local Inspection Committee as it suits it and not as required by the guidelines.

57. The importance of the Local Inspection Committee can be gauged from the judgment of this Court in the case of Madresa Moinul Islam Kelavani Mandal v. State of Gujarat (supra) relied upon by the learned counsel for the petitioner. Mr.Sunit S.Shah, learned counsel fore respondent No.4 has also relied upon Paragraphs 7 to 9 of the same judgment. Insofar as the portion of the judgment relied upon by the learned counsel for the petitioner is concerned, it deals with the provisions of Section 35 of the Act, in the following terms:

"5. All the aforesaid provisions of sec.35 deal with the spade work which is required to be done at three levels - (1) at Page 60 of 90 HC-NIC Page 60 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT the level of the applicant, (2) at the level of the Executive Council with the aid of local inquiry committee, and (3) at the level of the Academic Council ultimating reverting to Executive Council. It may be noted that all these provisions do not speak of power of the Executive Council and/or of Academic Council to grant permission for affiliation. It is in this connection that submission is made on behalf of the petitioner as also on behalf of the University that the aforesaid provisions contemplate satisfaction of the Executive Council and the Academic Council as aided by the local inquiry committee. It is further submitted that the application for affiliation is routed through and only through the process as contemplated by sub sections (1), (2), (3) and (4). On a plain reading of the aforesaid provisions, the submissions merit acceptance. The net result is that the Government is not to consider any application directly made to it. The stage where the Government steps in or is required to step in, is subsequent to the completion of the aforesaid process and that can be seen from subsection (5) of section 35 of the Act. It should also be noted that clauses (a) to (1) of subsection (2) of sec. 35 speak of compliance of the requirements at some future point of time Page 61 of 90 HC-NIC Page 61 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT obviously because granting of affiliation is also a matter of future, at that stage. This can be visualised in the usage of words `is to be or shall be' except in case of requisite finance for fulfilling the conditions. However, the applicant has to setout how does it plan out to attend to all the conditions as reflected in clauses

(a) to (1) within prescribed time. Even this aspect is required to be borne in mind in the context of the facts of both these cases. It may be added that if the applicant assuming some risk, takes some steps in advance, for example of processing appointment of Principal and teaching staff, having or arranging for construction of requisite building for the college, having or about to start for making provision for a library, having made or about to make for due provisions for the residence of Principal and other members of the teaching staff, having made or about to make an appointment of a selection committee of the college for appointing Principal and members of the teaching staff so as to include in the case of Principal a representative of the University, nominated by the Vice Chancellor and in the case of recruitment of a member of the teaching staff, a representative of the University nominated by the ViceChancellor and the Head of the Page 62 of 90 HC-NIC Page 62 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Department concerned with the subject to be taught by such members and so on. However, there are two vital requirements to be borne in mind and they are with regard to the need of locality and the financial resources. In order that the conditions contained in clauses (a) to (1) are complied with or likely to be complied with, the Executive Council is to apply its mind to all the aspects including the report of the local inquiry committee and it has to convey to the applicant the plus and minus points of the application in the context of the aforesaid requirements so that the applicant, if serious for starting of a college may have a chance of requesting the Executive Council for the application being reconsidered."

(emphasis supplied) As regards Paragraphs 7 to 9, relied upon by learned counsel for respondent No.4, this Court fails to understand what advantage can be derived by the said respondent from this portion of the judgment which, in fact, does not appear to be relevant to the issue on hand, which is the compliance of the provisions of Section 35 of the Act by the respondent University. Page 63 of 90 HC-NIC Page 63 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT

58. Learned counsel for the petitioner has also relied upon a judgment of the Supreme Court in Shri Morvi Sarvajanik Kelavani Mandal Sanchalit MSKM Bed College v. National Council For Teachers' Education And Others (supra), wherein it has held as below:

"11. Mushroom growth of illequipped, understaffed and unrecognised educational institutions was noticed by this Court in State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (1992) 4 SCC 435. This Court observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades deprecating the setting up of such institutions. The mushrooming of the colleges continues all over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the NCTE Act and the Regulations framed Page 64 of 90 HC-NIC Page 64 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT thereunder.

12. The present is one such case where the institution established by the appellant has been inspected more than once and several deficiencies that seriously affect its capacity to impart quality education and training to future teachers specifically pointed out. Inadequacy of space and staff, apart from other requirements stipulated under the provisions of the Act and the Regulations, is something which disqualifies any institution from seeking recognition. Such deficiencies have not been disputed before us nor can the same be disputed in the light of the reports submitted by the inspecting teams from time to time, including the report submitted on the basis of the latest inspection that was conducted pursuant to the directions issued by the High Court.

13. It is difficult to appreciate how the institution could have reported compliance with the requirements of the regulations and complete removal of the deficiencies after the order passed by the High Court when the institution had neither the land standing in its name nor the building constructed in which it could conduct the training programme. The fact Page 65 of 90 HC-NIC Page 65 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT that the institution was being run in a building which was shared by two other colleges was itself sufficient to justify withdrawal of the recognition granted in its favour. It was also noted by the inspecting team that four lecturers employed by the appellant did not have the requisite M.Ed. qualification. Suffice it to say that the institution was lacking in essential infrastructural facilities which clearly justified withdrawal of the recognition earlier granted to it .... ... ...

17. Secondly, because this Court has in a long line of decisions rendered from time to time disapproved of students being allowed to continue in unrecognised institutions only on sympathetic considerations. In N.M. Nageshwaramma this Court while dealing with the prayer for grant of permission to the students admitted to unrecognised institution observed: (SCC pp.17071, para 3) "3. .... We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the Court we direct the Government to permit them to appear at the examination we will Page 66 of 90 HC-NIC Page 66 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose. The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. We have no hesitation in dismissing the writ petitions with costs."

18. To the same effect is the decision of this Court in Bhagwan Budh Primary Teachers Training College and another v. State of Bihar (1990) Supp. SCC 722, where this Court observed: (SCC p.723, para 2) "2. It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act (see the judgments in S.L.P. No. 12014 of 1987 decided on 25111987 and the A.P. Christians Medical Educational Society v. Govt. of A.P)."

19. In State of T.N. v. St. Joseph Teachers Training Institute (1991) 3 SCC 87, this Court once again found fault with the grant Page 67 of 90 HC-NIC Page 67 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT of relief to students admitted to unrecognised institutions on humanitarian grounds. This Court said: (SCC pp.8990, para 6) "6. The practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. ... In A.P.Christians Medical Educational Society v. Government of A.P (1986) 2 SCC 667, a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The Court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by Page 68 of 90 HC-NIC Page 68 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law."

20. Reference may also be made to State of Maharashtra v. Vikas Sahebrao Roundale and Bhartia Education Society v. State of H.P. In the latter case this Court observed :

(Bhartia Education Society case, SCC p.533, para 15) "15. The practice of admitting students by unrecognised institutions and then seeking permission for the students to appear for the examinations has been repeatedly disapproved by this Court (see N.M. Nageshwaramma v. State of A.P, A.P. Christian Medical Educational Society v. Govt. of A.P. and State of Maharashtra v. Vikas Sahebrao Roundale). We, therefore, find no reason to interfere with the decision of the High Court rejecting the prayer of the students admitted in 1999 to regularise their admissions by directing the Board to permit them to appear for the JBT examination conducted by it. The two appeals (CAs Nos. 1228 and 1229 of 2011) filed by the Society/Institute and the students in regard to the 1999 admissions are therefore liable to be dismissed."

21. There is no distinguishing feature between the cases mentioned above and the case at hand for us to strike a discordant note. The institution established by the appellant is not equipped with the Page 69 of 90 HC-NIC Page 69 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT infrastructure required under the NCTE Act and the Regulations. It is not in a position to impart quality education, no matter admissions for the session 20112012 were made pursuant to the interim directions issued by the High Court. We have, therefore, no hesitation in rejecting the prayer for permitting the students to continue in the unrecognised institution of the appellant or directing that they may be permitted to appear in the examination.

22. We, however, make it clear that this order will not prevent the respondent University from examining the feasibility of reallocating the students who were admitted through the University process of selection and counselling to other recognised colleges to prevent any prejudice to such students. Such reallocation for the next session may not remedy the situation fully qua the students who may have to start the course afresh but it would ensure that if such admissions/reallocation is indeed feasible, the students may complete their studies in a recognised college instead of wasting their time in a college which does not enjoy recognition by the NCTE. We, however, leave this aspect entirely for the consideration of the University at the appropriate level, having regard to its Rules and Regulations Page 70 of 90 HC-NIC Page 70 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT and subject to availability of seats for such adjustment to be made as also the terms and conditions on which the same could be made. This order shall also not prevent the affected students from seeking such reliefs against the appellant college as may be legally permissible including relief by way of refund of the fee recovered from them."

(emphasis supplied) This judgment has been relied upon by the petitioner to buttress the submission that the new college opened by respondent No.4 does not have proper buildings or infrastructure and that the said respondent cannot take the shelter of the students and generate sympathy on those grounds when the inprinciple prior approval to run the college has not been accorded in a legal and proper manner.

59. Another judgment relied upon on behalf of the petitioners is that in the case of Adarsh Shiksha Mahavidyalaya And Ors. v. Subhash Rahangdale And Others (supra) wherein it is held as below:

Page 71 of 90

HC-NIC Page 71 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT "78. Learned counsel for the appellants did not seriously contest the position that the provisions contained in Sections 14(3) and 15(3) read with Regulation 7(2), (3), (4), (5) and (9) are mandatory and the Regional Committee cannot grant recognition unless it is satisfied that the applicant has fulfilled the mandatory conditions prescribed in the 1993 Act and the Regulations. They also did not dispute that in view of Section 16, examining body cannot grant affiliation, whether provisional or permanent to any institution or hold examination for the courses of training conducted by a recognized institution unless the institution concerned has obtained recognition under Section 14 or permission for a course or training under Section 15.

79. What needs to be emphasised is that no recognition/permission can be granted to any institution desirous of conducting teacher training course unless the mandatory conditions enshrined in Sections 14(3) or 15(3) read with the relevant clauses of Regulations 7 and 8 are fulfilled and that in view of the negative mandate contained in Section Page 72 of 90 HC-NIC Page 72 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT 17A read with Regulation 8(10), no institution can admit any student unless it has obtained unconditional recognition from the Regional Committee and affiliation from the examining body."

60. Learned counsel for the petitioner has further relied upon a judgment of the Supreme Court in the case of National Council For Teacher Education And Another v. Venus Public Education Society And Others (supra), wherein it is held as under:

"33. Now, to the last plank of submission of the learned counsel for the appellant. It is urged by him that the NCTE had procrastinated its decision at every stage and such delay was deliberate and, therefore, the society was compelled to admit the students and impart education, regard being had to the fact that there were really no deficiencies. As has been laid down in many a pronouncement of this Court that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not Page 73 of 90 HC-NIC Page 73 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such an attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the students to choose between Scylla and Charybdis. On the contrary, both of them were expected to be Arguseyed. The basic motto should have been "transparency". Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are Page 74 of 90 HC-NIC Page 74 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT accountable to law. The students, while thinking "vision of hope", chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same."

(emphasis supplied)

61. As has already been stated earlier, when the statute lays down a specific procedure to do a particular thing, it should be done in that particular manner only. It was incumbent upon the respondent University to take into consideration the views of the Academic Council, even if the view was that the decision for affiliation be deferred. The satisfaction of the Executive Council alone is not sufficient. It has to be of both the Executive and the Academic Council regarding the need in the locality to open a new college offering the same courses as the existing one. The respondent University is bound to follow the procedure laid down in Section 35 of the Act. The ipse dixit of Page 75 of 90 HC-NIC Page 75 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT respondent No.4, as expressed in the application form, that the college run by the petitioner would not be adversely affected, cannot be considered to be the gospel truth. An independent and indepth application of mind by the University to all the relevant factors is required. As provided in the proviso to Section 35(4) of the Act, if the Executive Council disagrees with the view of the Academic Council, it is obliged to refer the matter back to the Academic Council with or without its comments, after which the Academic Council shall again communicate its views regarding the affiliation of the college to the Executive Council. This procedure has not been followed by the Executive Council which has ignored the view of the Academic Council and has straightaway sent the recommendation to the State Government.

62. Learned counsel for the respondent University has submitted that the petitioner is trying to create a monopoly in the area, which cannot be permitted in the interest of society and the public interest. In the field of education, Page 76 of 90 HC-NIC Page 76 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT there can be no monopoly as there is no bar in opening new institutions offering various courses, if such institutions satisfy the prescribed requirements that there is a genuine requirement in the area for the opening of such institutions. If such a requirement is established after due inquiry, there can be no question of creating a monopoly. Equally important is the aspect that unhealthy competition between educational institutions should be curbed. One institution should not suffer at the cost of another. Both these aspects have to be properly balanced. In the present case, the University has not acted in conformity with the provisions of Section 35(2) and the Government Resolution of the State Government, therefore, it is hardly in a position to say that the petitioner is desirous of creating a monopoly. Such an argument, though superficially attractive, is without substance. This Court does not agree with the submission of learned counsel for the University that the petitioner has no locus standi to maintain the Page 77 of 90 HC-NIC Page 77 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT petition on the ground of seeking to create a monopoly.

63. The respondent University is an autonomous body. However, autonomy does not mean that its authorities are free to disregard the provisions of the very Act to which the University owes its existence. The University is the creature of the Act and is bound to follow it in letter and spirit.

64. While noticing the abovementioned defects in the manner in which the matter has been handled by the respondent University, this Court cannot absolve the State Government of its share of the blame. It is clearly stated in the Government Resolution dated 21.12.2010, that all applications for affiliations shall only be sent as per the said guidelines. Having said so, the State Government has turned a blind eye to the fact that the University has not appointed a Need Committee as per the guidelines framed by it. Further, the Local Inspection Committee constituted by the University is not in Page 78 of 90 HC-NIC Page 78 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT accordance with the stipulations in the Government Resolution. The State Government has also overlooked the aspect that the view taken by the Academic Council has been ignored by the Executive Council while making the recommendation. Without taking all the above relevant aspects into consideration, the State Government has taken no time in granting in principle prior approval to the new college run by respondent No.4. Both the respondent University and the State Government have chosen to ignore, or halfheartedly comply with the requirements of the Act and the Government Resolution as it suits them, but not as strictly required.

65. Another glaring aspect deserves mention. The application of respondent No.4 to the University has been sent with its covering letter dated 28.03.2012. The criterion for obtaining a NOC from the existing college (of the petitioner) was very much in existence at that point of time. The NOC has been refused. It was incumbent upon respondent No.4 to satisfy the Executive Page 79 of 90 HC-NIC Page 79 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Council and Academic Council that there was a genuine need to open the new college. The matter rested at that stage till 30.04.2013, when the Academic Council on the basis of the Local Inspection Committee, made a recommendation to the Executive Council to defer the decision on the application of respondent No.4. Surprisingly, by the impugned resolution of the same date, the Executive Council scrapped the requirement of obtaining the NOC from the existing college within a radius of twentyfive kilometers. The impugned resolution of the Executive Council raises more questions than it answers. The timing of the resolution, the fact that the NOC has been refused by the petitioner and the aspect that the criterion reflected in the application form and Handbook of the University is sought to be changed midway through the consideration thereof, point to the possibility of there existing some hidden, subjective reasons to aid the cause of respondent No.4 that could have prompted such a sudden and abrupt decision. It does not appear Page 80 of 90 HC-NIC Page 80 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT from the material on record that the impugned resolution is based on cogent material or has been passed objectively for cogent reasons.

66. It cannot be lost sight of that the University and the State Government have an obligation to ensure that quality education is imparted to students, for which purpose the procedure regarding the requirement for the type of education that is offered, the facilities and infrastructure in the proposed institution and several other relevant factors are required to be taken into consideration. It is in this area that the Act and the guidelines of the State Government gain importance.

67. One question remains unanswered. It is regarding the haste on the part of the State Government in granting the inprinciple prior approval in breach of its own guidelines. The Executive Council made the recommendation to the State Government on 11.06.2013. The State Government, in record time, granted the inprinciple prior approval to respondent No.4 on the basis of the Page 81 of 90 HC-NIC Page 81 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT said recommendation within sixteen days only, on 27.06.2013. If all grievances of the general public are dealt with in such a short timespan, there is reason for hope! However, this is mere wishful thinking. In its haste, the State Government has ignored the aspect that its own stipulations in the Government Resolution dated 21.12.2001 to the effect that that the application has to be forwarded strictly in accordance with the guidelines laid down therein, have not been followed. One, therefore, wonders why the Executive Council of the University and the State Government were in such a hurry to grant inprinciple prior approval to respondent No.4 when there were several lacunae in following the provisions of the Act and the Government Resolution. This aspect creates doubt that there may exist other extraneous factors that could have coloured the decision. One can only hope that it is not so, looking to the importance of quality education in the State.

68. The conduct of respondent No.4 requires to be noticed. The State Government has granted in Page 82 of 90 HC-NIC Page 82 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT principle prior approval to respondent No.4 to run the new college on 27.06.2013, for the academic year 201314 onwards. Admittedly, no recognition or affiliation has been granted so far. Despite this, respondent No.4 has issued an advertisement in the newspapers, a copy of which is annexed as AnnexureH, wherein it is stated that the new college is affiliated to respondent No.3 University. This is clearly a misrepresentation on the part of respondent No.4 to the public at large as no affiliation or recognition has been granted till date. The new college is running only on the basis of the in principle prior approval which does not constitute either formal affiliation or recognition. This aspect is not denied by learned counsel for respondent No.4 or the learned Assistant government Pleader. On the strength of such advertisements, respondent No.4 has attracted students to its new college and is now attempting to take the shelter of the students to avoid the issuance of directions similar to those issued by this Court in the Page 83 of 90 HC-NIC Page 83 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT judgment dated 26.09.2007 in Special Civil Application No.14169 of 2007, to which both the petitioner and respondent No.4 were party.

69. In the Letters Patent Appeal No.1925 of 2007 filed by respondent No.4 Trust against the said order, the Division Bench modified the order of this Court to the extent that the University was directed to follow the procedure for affiliation, as required under the Rules and take a final decision for recommendation on, or before, 20.02.2008. On failure to comply, the appellant respondent No.4 would be at liberty to approach the Court for appropriate orders. It was also made clear by the Division Bench that the University was to give publicity to the fact that the students were admitted only for the concerned academic year and that too, subject to affiliation of the new Arts College by the University. No student, thereafter, would claim any equity on the basis of the admission given by this college.

70. As stated by the Supreme Court time and again in Page 84 of 90 HC-NIC Page 84 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT several judgments, one of which has been reproduced hereinabove, sympathy for the students cannot condone the irregularities and illegalities committed by the concerned authorities or institutions, while seeking affiliation.

71. In the present case, the new college has already admitted students and classes have already begun. Respondent No.4 has advertised to the public at large that its new college is affiliated to the respondent University, which is not the true position. It is incumbent upon the students, their parents or guardians to fully ascertain the credentials of the educational institution before taking admission. Having said that, it could be possible that in the present case the students have been misled by the advertisements by respondent No.4. Though there can be no false sympathy for respondent No.4 by taking the shelter of the students, this Court would not desire that the students already admitted should suffer for the faults committed by respondent No.4, the University and the State Page 85 of 90 HC-NIC Page 85 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT Government to the extent indicated hereinabove.

72. In view of the above discussion, and for reasons stated hereinabove, this Court considers it just and proper to issue the following directions: (1) The impugned Resolution No.30 of the Executive Council of the respondent University, dated 30.04.2013, scrapping the requirement of obtaining the NOC, is hereby quashed and set aside.

(2) Consequently, the recommendation made by respondent University to the State Government vide its communication dated 11.06.2013, for the grant of inprinciple prior approval to the new college run by respondent No.4, is also quashed and set aside.

(3) The order dated 27.06.2013, passed by the State Government granting inprincipal prior approval to respondent No.4 Trust for starting new courses from the academic year 201314 onwards, shall not continue beyond the current Academic Year and that too, only in respect of Page 86 of 90 HC-NIC Page 86 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT the students already admitted and no fresh admissions shall be made.

(4) Respondent No.4 shall make a fresh application to the University for affiliation of its new college. The said application shall be processed by the University in accordance with the procedure laid down in the Act, Statutes and Ordinances. The University shall strictly follow the provisions of the Act and the Government Resolution dated 21.12.2001 of the State Government in this regard. After processing the application, it shall be sent to the State Government in conformity with the provisions of the Act.

(5) The State Government shall thereafter take an appropriate decision, in accordance with law, on the recommendation made by respondent No.3 University. The decision, when taken, shall be communicated by the State Government to respondent No.4 and the University, as expeditiously as possible.

(6) The entire exercise be completed by Page 87 of 90 HC-NIC Page 87 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT respondent No.4, the University and the State Government, three months before the start of the next Academic Year, without fail.

(7) Henceforth, respondent No.4 shall not admit any new students until and unless the above procedure is not complete and formal affiliation is not granted under the Act. (8) Respondent No.4 shall give wide publicity and advertise to the public at large, as well as to the students already admitted to the new college, that no affiliation has been granted to it, so far. The respondent University shall also widely publicize that the students have been admitted only for the current Academic Year, subject to the above directions. (9) No student studying in the new college run by respondent No.4 shall, hereafter, claim any equity in any manner on the basis of the admission granted by it.

(10) The respondent University shall follow the mandate of the Act at every stage. Page 88 of 90 HC-NIC Page 88 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT (11) Respondent No.4 shall pay to the petitioner, costs amounting to Rs.1,00,000/ within a period of fifteen days from today. (12) Similarly, the respondent University shall also pay costs to the petitioner, amounting to Rs.50,000/, within a period of fifteen days from the today.

73. The petition is allowed in the above terms. Rule is made absolute, accordingly.

(SMT. ABHILASHA KUMARI, J.) Mr.Omkar Dave, learned advocate for respondent No.4, has made a request that this judgment be stayed for fifteen days.

In view of the detailed discussion contained in the judgment and for the reasons stated therein, the request is declined.

(SMT. ABHILASHA KUMARI, J.) Page 89 of 90 HC-NIC Page 89 of 90 Created On Wed Jul 06 03:00:56 IST 2016 C/SCA/15076/2013 CAV JUDGMENT sunil Page 90 of 90 HC-NIC Page 90 of 90 Created On Wed Jul 06 03:00:56 IST 2016

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