Rajasthan High Court - Jaipur
Apex Institute Of Management vs University Of Raj on 20 April, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Writ Petition No.4391/2011
Apex Institute of Management & Science
Versus University of Rajasthan Jaipur
\Reportable/
Date of Order : 20/04/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. Mahendra Singh, for petitioner.
Mr. AK Sharma Sr. Adv. with Mr. Rachit Sharma, for respondent-University Since respondent-University entered into a caveat, the parties were heard at motion stage.
The petitioner is an Educational Institution established & managed by a society registered under the Rajasthan Society's Registration Act, 1958. As alleged in the writ petition, petitioner initially applied for affiliation with the University of Rajasthan (respondent) for M.Sc. (Bio-Tech.) course for academic year 2003-04 which was provisionally granted with 40 students' intake capacity, and extended from time to time. However, petitioner applied for increase in students' intake capacity from 40 to 80 seats for academic year 2010-11 vide application dt.29/12/2009 (Ann.3), pursuant to which, a team of inspection was constituted by the Board of Inspection and the Team visited the Institute on 28/09/2010 and after thorough inspection prepared its factual report alongwith summary of recommendations on 29/09/2010, with certain requirements to be fulfilled and the report dt.29/09/2010 was submitted by the inspection team and was considered in a meeting held on 21/10/2010 by the Board of Inspection ("BOI") which is a statutory body constituted U/s 24-I of the University of Rajasthan Act, 1946 ("the Act") and after examining the report (supra) & the material enclosed therewith, the BOI did not increase students' intake capacity in case of the petitioner institute and the decision was communicated to the petitioner-institute vide office order dt.16/11/2010 (Ann.R/1). There-after a letter was sent by Chairman of petitioner Institute to the Vice Chancellor on 02/12/2010 regarding increase in students' intake from 40 to 80 seats in academic session 2010-11, which was again considered by the BOI on 20/12/2010 unanimously resolving to recommend that earlier decision taken by the BOI in its meeting dt.21/10/2010 vide resolution 4(i) i.e. 40 seats stands, which was conveyed to petitioner-institute vide communication dt.06/01/2011 (Ann.R/2).
It has come on record that a further letter dt.31/12/2010 was received from one of Syndicate members along with copy of letter of Chairman of petitioner-Institute regarding increase in intake capacity in M.Sc. (Bio-Tech.) from 40 to 60 students; on which again it was resolved to recommend that earlier decision taken by the BOI at its meeting held on 21/10/2010 vide resolution No.4(i) i.e. 40 seats stands and the said decision taken by the BOI in its meeting held on 07/02/2011 (Ann.13) while considering MLA's letter dt. 31/12/2010, was also communicated to petitioner-Institute vide letter dt.25/02/2011 (Ann.8), which has been assailed by petitioner by way of instant petition with the prayer that recommendations of the Team of inspection vide its report dt.29/09/2010 may be accepted and the petitioner-Institute may be held to be entitled for increase in students' intake capacity as recommended by Team of Inspection and as a consequence whereof, respondent-University may be further directed to allow 60 students through petitioner-institute to appear in ensuing examination commencing from 06/04/2011.
Shri Mahendra Singh, Counsel for petitioner submits that once the Team of inspection has made recommendations after fulfilling conditions/suggestions pointed out vide its report dt.29/09/2010, the BOI and Syndicate were under legal obligation to record reasons as to why recommendations made by Team of Inspection were not acceptable; inasmuch as since the decision of BOI & Syndicate has caused adverse consequences, and before the decision being taken, it was under obligation to call upon petitioner-Institute by affording opportunity of hearing in absence whereof, the decision of the BOI & Syndicate was in violation of principles of natural justice and also Art.14 of the Constitution of India.
Counsel for petitioner further submits that the BOI in its meeting held on 21/10/2010 examined cases of various educational institutions of Under-graduate/Post-graduate courses; and its bare perusal discloses, how the approvals are being granted or intake capacity has been increased of few institutions and why intake capacity has not been increased in case of petitioner-institute for which no reasons either way are forth-coming in absence whereof, action of respondent-University is wholly arbitrary and whimsical and deserves to be quashed.
Counsel further submits that additional 20 students have been admitted on the assurance given by Team of inspection, which can be depicted from recommendations made by Team of Inspection vide its report dt.29/09/2010 on the basis of which, it was presumed that approval for increase in-take capacity for M.Sc. (Bio-Tech.) and in view thereof, admission granted by the petitioner-Institute to additional 20 students may be regularised so as to enable them to appear in the examination scheduled to be held from 06/04/2011. In support, Counsel placed reliance upon the judgments in Kishan Chand Arora Vs. Commissioner of Police, Calcutta (AIR 1961 SC 705), State of Gujarat Vs. Patel Raghav Natha (AIR 1969 SC 1297), and Lav Nigam Vs. Chairman & MD ITI Ltd (2006(9) SCC 440).
However, after the arguments were concluded, it has been informed that the University has issued Roll numbers for all the 60 students of petitioner-institute for appearing in M.Sc. (Bio-Tech.) Practical examination, 2011.
Shri A.K.Sharma, Senior Counsel, entered into caveat on behalf of the University and filed written objections and averred that the petitioner-Institute has concealed material facts by having not made reference in the writ petition about earlier decisions of the BOI conveyed vide communications dt.16/11/2010 (Ann.R/1) and dt. 06/01/2011 (Ann.R/2); and on the contrary, a statement has been made in para 6 of the instant petition that the University failed & neglected to issue any communication either pointing out deficiencies, if any or refusing to grant permission of the increase in intake capacity of students for M.SC (Bio-Tech.); and the petitioner Institute was expecting permission for grant of additional students intake based on the recommendations made by Team of inspection in its report dt. 29/09/2010.
Counsel for the University submits that statement made in para 6 (supra) is factually incorrect as is evident from communications dt.16/11/2010 (Ann.R/1) & dt. 06/01/2011 (Ann.R/2) duly made & conveyed to petitioner-Institute about the decision of the BOI in its meeting held on 21/10/2010 & 20/12/2010 reference whereof has not been made in the petition, which shows material concealment made by petitioner-institute, that dis-entitles from availing of equitable remedy U/Art.226 of the Constitution.
Apart from preliminary objections (supra), on merits Counsel for the University submits that the Team which has inspected the petitioner-Institute, has only submitted its factual report of physical inspection made by them, inasmuch as whole of the record including reports submitted by the Team of inspection has to be examined by the BOI which is one of the expert body constituted U/s 24-I of University Act and discharged its statutory functions provided U/s 24-J, which does not cast obligation to assign reasons for having taken its decision impugned; and unless malice being imputed or any default being committed in decision making process adopted by the University rather it being in conformity with S.24-J of the University Act, no interference is called for.
This Court has considered rival contentions advanced by Counsel for parties and with their assistance, examined material on record. Before examining the controversy raised herein, it will be appropriate to have a brief resume of relevant provisions of the Statute & the University Act.
U/s 17 of the University Act, 1946, there are certain statutory bodies/authorities including the Syndicate & Board of Inspection. The constitution of Syndicate is provided U/s 21, which is the executive body of the University and its functions are provided U/s 22 sub-section (i) whereof provides in regard to inspection and affiliation, recognition or approval of colleges, hostels or institutions, which is one of statutory functions. S.22(i) reads ad infra:
22. Subject to such conditions as may be prescribed by or under the provisions of this Act, the Syndicate shall exercise the following powers and perform the following functions, namely : - (a) to (h) - Not relevant
(i) Subject to the Statutes, to inspect and to affiliate, recognize or approve colleges and hostels or institutions and to withdraw affiliation, recognition or approval from them At the same time, the constitution of the Board of Inspection (BOI) is provided U/s 24-I, according to which, the BOI consists of (i) the Vice Chancellor; (ii) the Director of Education, Rajasthan; & (iii) the Deans of Faculties; and the BOI discharges statutory functions as provided U/s 24-J ad infra:
24-J. (1) The Board shall deal with applications for affiliation, recognition or approval of Colleges and institutions, within the territorial jurisdiction of the University, arrange for their inspection in the manner prescribed by the Statutes, and make recommendations to the Syndicate, in regard to their affiliation, recognition or approval, as the case may be.
(2) The Board shall appoint two committees consisting of the five members each, one to deal with applications for affiliation of colleges and another to deal with applications for approval of institutions. The committees shall be appointed for a period of three years; and (3) Subject to approval by the Syndicate, the Board may make rules for the approval, recognition and affiliation of institutions and colleges.
A conjoint reading of afore-quoted provisions makes it explicit clear that after dealing with applications & arranging for inspection of the Colleges & institutions in regard to affiliation, recognition or approval whereof, the BOI is required to make recommendations to the Syndicate either for affiliation, recognition or approval, as the case may be and the Syndicate is the authority for taking final decision in the matter. That apart, inspection and recognition of Colleges/ institutions are regulated in terms of Statute Cl.37 which provides the procedure regarding inspection/inquiry being made of the Colleges.
Under whole of the scheme of University Act (supra) there is no provision to record reasons whose matter has been examined either in regard to affiliation, recognition or approval thereof.
However, in the instant case, after the petitioner submitted application seeking increase in intake capacity from 40 to 80 students for academic session 2010-11 for M.Sc (Bio-tech.), Team of inspection constituted had physically inspected petitioner-Institution and submitted its report dt. 29/09/2010 along with summary of recommendations; and since Counsel for petitioner laid much emphasis on the summary of recommendations, this Court considers it appropriate to quote it ad infra: -
22. (i) Summary of recommendations Recommend provisional affiliation for academic session 2010-11 in M.Sc (Bio-Technology); also recommend increase in in-take of seats (60) but to be taught in two separate sections.
(ii) Conditions/suggestions for provisional affiliation if recommended -
More books in Library in view of increase in intake;
Selection of faculty as per University norms.
After report of the Inspection Team alongwith the record being submitted before the Board of Inspection which is a statutory functionary and after due examination of applications for affiliation, recognition & approval of Colleges including petitioner-Institute, the Board of Inspection being an expert body in the field for the purposes and discharging statutory functions, considered the entire material on record in its meeting held on 21/10/2010 (Ann.16), which discloses that the matter in regard to increase in in-take capacity for Under-graduate/Post Graduate courses and so also for affiliation & recognition of various colleges was considered and under Note-4, intake of Colleges including petitioner-Institute was considered but finally has not recommended for increase in intake capacity of petitioner-Institute, despite it being recommended by Inspection Team. It is relevant to observe that it was the petitioner-Institute alone, whose matter for increase in-take capacity for M.SC (Bio-Tech.) came up for consideration.
However, the decision of the BOI taken in its meeting held on 21/10/2010 without loss of time was communicated to the petitioner Institute on 16/11/2010 (Ann.R/1) but there after, its Chairman sent a letter on 02/12/2010 to the Vice Chancellor for re-examination of the material regarding increase in in-take from 40 to 60 students for M.Sc. (Bio-Tech.) course in the College, which again came up before the BOI on 20/12/2010 but the Board maintained its earlier decision taken in meeting held on 21/10/2010 and communication thereof dt.06/01/2011 (Ann.R/2) was sent to Chairman of petitioner-Institute.
Thereafter, it appears from the record that local MLA and member of the Syndicate along with letter of Chairman of petitioner institute approached on 31/12/2010 regarding increase in the intake from 40 to 60 students in two separate sections for academic session 2010-11 for M.Sc. (Bio-Tech.) course, which too was placed before the Board of Inspection alongwith record, in its meeting held on 07/02/2011 (Ann.13) but the Board of Inspection still resolved to maintain its earlier decision having been initially taken in its meeting held on 21/10/2010 vide Resolution No.4(i) regarding intake of 40 seats to stand.
Statement having been made in para 6 of the petition is factually incorrect and certainty this Court finds substance in the submission made by Counsel for University that petitioner institute has misled the Court by having not placed on record, the correct facts regarding earlier two communications dt. 16/11/2010 & dt.07/01/2011 (Ann.R/1 & R/2). That itself certainly dis-entitles the petitioner institute to avail of discretionary remedy under the law.
Yet, this Court considers it appropriate to examine the submissions made on merits; and still finds no substance in any of them. The Board of Inspection being statutory body constituted of expertise, discharged its functions as provided U/s 24-J of University Act. It pre-supposes that the body constituted for the purposes being experts has examined the material on record as is reflected from minutes of meeting and the decision taken in its meetings held on 21/10/2010, 20/12/2010 & 07/02/2011 (Ann.R/1, R/2 & Ann.8). In the absence of there being any provision for recording reasons it was not required, but the decision taken by a statutory body (BOI) constituted for the purpose U/s 24-I has to be communicated which in the instant case was communicated reference whereof has been made (supra).
Submissions made by Counsel for the petitioner that in regard to some of the Colleges without assigning reasons, their in-take capacity has been increased and in case of petitioner-Institute without assigning reasons despite it being recommended by Team of Inspection in its report dt.29./09/2010, increase in intake capacity has not been permitted, is also without substance for the reason that the petitioner Institute alone applied for increase in intake regarding M.Sc. (Bio-Tech.) course, for which requirement of Laboratory & infra-structure cannot be compared with any other course reference whereof has been made, as having come on record in minutes of meetings of the BOI.
Thus, no parity can be claimed with other colleges whose matters having come up for consideration or whose reference have come in the minutes of meetings held (supra), which in ordinary course is not required to be interfered with by this Court in its limited scope of judicial review U/Art.226 of the Constitution of India provided it is a case of proven malice against the authority which has taken the impugned decision or it is per se arbitrary, which is not even acceptable to a man of ordinary prudence or it is in violation of any of statutory provisions or any default being committed in the decision making process adopted by statutory authority, which is not the case set up by petitioner-institute herein and in absence thereof, this Court does not find any error in the decision of the respondents, warranting interference.
Further submission made by petitioner that there is no application of mind in the decision impugned which causes adverse consequences, and in violation of principles of natural justice, is also of no substance for the reason that minutes of the meeting, placed on record, disclose application of mind on the part of the Board of Inspection while taking decision regarding applications being considered of UG/PG colleges; at the same time, the petitioner Institute has no legal right to increase in the intake capacity on its own, while it is otherwise for the Board of Inspection to examine the record and no right can be said to be conferred based on recommendations made by Team of Inspection; and in absence of any legal/civil rights of the petitioner being infringed, principle of natural justice has no application and there is no provision under the Statute to provide opportunity of hearing by the Board of Inspection to the concerned applicant before taking its decision.
Judgments cited by Counsel for petitioner Institute in Kishan Chand Arora Vs. Commissioner of Police, Calcutta (AIR 1961 SC 705), State of Gujarat Vs. Patel Raghav Natha (AIR 1969 SC 1297), and Lav Nigam Vs. Chairman & MD ITI Ltd (2006(9) SCC 440) are of no assistance to petitioner-institute in the facts of the instant case. Re. Kishan C.Arora Vs. Police Commissioner, Calcutta (supra), it was a case where question before Apex Court was in regard to scope of S.39 of Calcutta Police Act, which puts restrictions on the right to carry on trade and provision was requiring licence for conducting eating house - reasonableness whereof was challenged. The Apex Court finally held that S.39 is not unreasonable restriction on the right to carry on trade and is not unconstitutional. As regards judgment in State of Gujarat Vs. Patel Raghav Natha (supra), it was a case where Apex Court has occasion to examine scope of Section 65 & 211 of the Bombay Land Revenue Code and the Collector, if failed to inform applicant of his decision on the application within statutory period of three months, what will be the consequence in the existing scheme and the question arose as to how far S.65 is in conformity with S.211 of the Revenue Code and what has been examined by Apex Court has no application in the facts of instant case.
Similarly as regards judgment in Lav Nigam Vs. Chairman & MD ITI Ltd (supra), it was a case where question arose before Apex Court was, if inquiry officer has not found the charges proved against the delinquent, as to whether disciplinary authority without affording of opportunity of hearing is under obligation to give a notice setting out his tentative conclusions to the charged employee prior to holding him guilty and inflicting penalty upon delinquent ? Certainly, after inquiry officer has not found the charges proved and disciplinary authority is still of the view that there is a material available, it is the requirement under Scheme of the disciplinary Rules, itself that delinquent must be afforded opportunity of hearing while giving notice alongwith tentative conclusions to the charged employee by the disciplinary authority before inflicting penalty; and rightly so, since after inquiry officer records finding of fact, right is conferred it certainly requires that principle of natural justice must be complied with.
However, in instant case, merely because the petitioner submitted application seeking increase in intake capacity for M.SC. (Bio-Tech.) course, and the Team of Inspection has made certain recommendations, no legal/civil right can be said to be conferred and the statute also does not require that before the BOI took its decision, opportunity of hearing is required to be afforded to the Institution.
Further submission made by Counsel for petitioner that admissions made beyond sanctioned intake strength have been finally regularised by the Syndicate by way of ex post facto sanction after imposing penalty, in its meeting held on 28/02/2011 and the petitioner-Institute falls within same parity, is also of no substance for the reason that while regularising admissions made beyond sanction intake strength in UG/PG courses, the Syndicate might have been sympathetic in regard to students admitted beyond sanctioned intake strength of Colleges, who are ultimate sufferers and not the Colleges which regularise excess admissions as a one time measure, and allowed the students in the examination as non-collegiate students but that cannot be permitted in case of students of M.Sc. (Bio-Tech.) being regular course. That apart, if illegality being committed by the petitioner in granting admissions to students of PG course beyond sanctioned intake strength at its own without prior approval being obtained from the authority with whom power is vested under University Act, cannot be permitted to perpetuate, and this Court is not going to approve such indirect method under the garb of ex post facto regularisation of excess admissions, which becomes a precedence for future, and when it is not in conformity with the Statute, atleast cannot be accepted by this Court.
As regards last feeble attempt made by Counsel for the petitioner regarding allotment of Roll Numbers permitting the students to appear in the examinations, suffice it to say that merely because the University has issued Roll numbers to all the 60 students admitted by the petitioner beyond its sanctioned intake as alleged, it may be a case of human error or otherwise, but it has not been approved atleast by the Court being not in conformity with the statute and that will not confer any right to such additional students to appear in the examination of M.Sc. (Bio-Tech.).
It appears that petitioner-institute has deliberately not made reference of both the communications dt.16/11/2010 & 06/01/2011 (Ann.R/1 & R/2) in the instant petition; inasmuch as without sanction being granted by the competent authority with whom power is vested, the petitioner-institute on its own accorded admissions to additional 20 students and further sent examination forms of those additional 20 students illegally admitted beyond sanctioned intake capacity of 40 seats for M.SC (Bio-Tech.), obviously when they were not being permitted to appear in the examination scheduled to be held from 06/04/2010, instant petition was filed at the last moment on 29/03/2011.
From these facts on record, an inference can be drawn that since examinations were to commence on 06/04/2011, earlier communications dt.16/11/2010 & 06/01/2011 were deliberately not referred, so as to gain sympathy of the Court seeking permission in favour of additional 20 students to appear in the examination scheduled to be held from 06/04/2011. This kind of practice can not be appreciated by this Court.
Before parting with the judgment, this Court would like to observe that from material on record in particular the report of the BOI dt.07/02/2011 (Ann.13) in para 15 -
15. The Board considered the office note dated 04/02/2011 received from the Controller of Examination alongwith the request of the under mentioned colleges regarding to accept excess examination forms beyond existing annual intake for the session 2010-11:-
S.No./ Name of College Allotted Seats Received Examination Forms
1. Gramothan JP College, Manderella, Jhunjhunu B.A. - 60 B.Sc. - 60 B.A. - 117 B.Sc. - 152
2. Sultan Mahavidyalaya, Gadakhera, Jhunjhunu B.A. - 60 B.Sc. - 60 B.A. - 400 B.Sc. - 69
3. Rajasthan Maha- Vidyalaya, Pawta, Jaipur B.A. - 80 B.A. - 105
4. Target College, Kacholia Road, Chomu Jaipur B.A. - One Section (80) B.Com.- Two Section (160) B.A. -105 B.Com. -181
5. All other Similar Colleges it has been observed that the BOI considered the office note dated 04/02/2011 received from controller of examination regarding to accept excess examination forms on being received beyond existing annual intake for the session 2010-11 from various colleges, at that stage the Board resolved to get it examined by the Committee to be constituted for the purpose; but it is very alarming that where sanctioned intake capacity for admission in the college as approved by respondent University is of 60 or 80 while examination forms received as against the intake capacity are almost the double or more than double and when the recommendations came forward must be with some report of the Committee constituted by the BOI, are considered by the Syndicate in its meeting held on 28/02/2011 (Ann.R.3) - reference whereof has been made in minutes at para 7 & 18; the Syndicate while confirmed minutes of the Board of Inspection in its meeting held on 28/09/2010, 21/10/2010, 18/11/2010, 20/12/2010 and 10/01/2011 with certain modification which being relevant are quoted ad infra:-
7 & 18. :- The Syndicate confirmed the orders of the Vice-Chancellor regarding minutes of the BOI dt.28/09/2010, 21/10/2010, 18/11/2010, 20/12/2010, 10/01/2011 with the following modifications:
1. Penalty for UG students be calculated @ of Rs.3000/- per excess student and for PG courses @ Rs.5000/- per excess student be imposed on the colleges who have made excess admissions beyond the sanctioned number of seats for UG & PG courses respectively. In office order total sum of penalty amount be communicated to the college concerned by the office.
2. Candidates who have been admitted in excess beyond the sanctioned number of seats be allowed to appear in the ensuring University Examination as Non-Collegiate candidates.
3. The admission cards of these candidates be issued by the C.E., only after receipt of the penalty amount from the defaulting colleges.
4. C.E., be asked to explain the circumstances under which excess forms were issued to these colleges and inquiry be conduct3ed for issuing excess examination forms to these colleges and the persons who are responsible for lapse should be identified and, responsibility should be also be fixed.
5. A notification be issued in the daily news papers mentioning names of all such defaulting colleges made into the notice of the public that they have also made excess admission than the seats allotted by the University. Concerned students/their parents also be advised to be careful while seeking admission in these Colleges in future. Any such excess intake by Colleges will not be permitted by the University in any of these colleges or any other Colleges in future.
6. Those colleges which indulge in excess admission beyond the number of seats sanctioned by the University in future the University will disaffiliate such Colleges.
Of course, the decision might have been taken for regularisation, which appears to be for one time measure. But, existing admissions made are much in excess of sanctioned strength /intake in regard to UG/PG Colleges; for which, penalty of individual UG/PG student has been imposed upon the College and students are allowed to appear as non-collegiate students.
This Court can take judicial notice that this is one of regular phenomenon where the College makes excess admissions merely on the basis of some alleged recommendations made by Team of Inspection and without waiting for final decision of statutory authority. This Court would like to record its displeasure regarding the procedure adopted for regularising excess admissions by inflicting penalty upon colleges and observe that such ex post facto regularisation give encouragement to the Colleges to make excess admissions beyond its sanctioned intake on the basis of alleged report of Inspection Team and it is certainly indirect increase the number of seats beyond sanctioned intake at its own and try to manage as far as possible or at best it is their perception that after inflicting penalty, such illegal excess admissions made by colleges will be regularised.
No doubt, regarding admissions being made beyond number of sanctioned intake, the University while granting ex post facto sanction to such excess admissions, has inflicted penalty upon colleges. But, this is not the solution of emerging problem to regularise such excess admissions in this manner. However, this Court feels that illegality committed by affiliated colleges by one way or the other if being regularised and such students are being permitted to appear in examinations it will lay down a bad precedence being followed for all times to come.
This Court would like to observe that the respondents henceforth must be strict to what has been observed under the law; it should be strictly followed; and any College/ institution, if makes excess admission beyond its sanctioned in-take for UG/PG courses without taking prior approval of the authority under the University Act, such excess admissions at no cost be approved by ex post facto sanction by way of imposition of penalty; and it is indeed that it cannot be a source of earning to meet out deficit budget and against such institutions/Colleges, the process for dis-affiliation/de-recognition be initiated without any further loss of time in accordance with law and the message must go to all the Colleges, that no one is an exception and it is high time that such practice adopted by Colleges including petitioner indulging in granting admissions beyond its sanctioned intake must be deprecated and shall be saddled with stern action under the law and at the same time, it must be curbed with no exception at any cost.
Consequently, writ petition being devoid of merit, fails and is hereby dismissed. No costs.
(Ajay Rastogi), J.
K.Khatri/p24/ 4391CW2011RsrApr20-Univ.do