Bombay High Court
Shri Dhananjay R. Kulkarni & Others vs State Of Maharashtra & Others on 23 March, 1999
Equivalent citations: AIR1999BOM287, 1999(3)BOMCR379, (1998)2BOMLR393, 1999(1)MHLJ323, AIR 1999 BOMBAY 287, (1999) 2 MAH LJ 323, (1999) 3 ESC 1733, (1999) 3 BOM CR 379, 1999 (2) BOM LR 393, 1999 BOM LR 2 393
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal, A.P. Shah
ORDER Y.K. Sabharwal, C.J.
1. Rule, returned forthwith.
2. Respondents Nos. 3 to 8 are various colleges under the purview of University of Pune. The said university is respondent No. 2. State of Maharashtra is respondent No. 1.
3. The validity of the permission granted by respondent No. 1 to respondents Nos. 3, 4, 6 and 8 for starting Bachelor of Computer Science Course (B.C.S. Course, for short) is under challenge in this petition. The permission has been granted by respondent No. 1 in exercise of power under proviso to subsection (5) of section 82 of the Maharashtra Universities Act, 1994 (for short, the Act), According to respondent No. 1, these colleges fall under the category of exceptional cases and valid and good reasons have been recorded for granting approval to the said colleges to start B.C.S. Course, though their applications were not recommended by the University. The State Government, it is claimed, has wide powers under the aforesaid provisions to grant permission to any institution, irrespective of whether the case of an institution is or is not in conformity with the Perspective Plan prepared by the University.
4. The Pune University, as provided under section 82(1), has prepared a Perspective Plan for Educational Development for 1997-2001. The plan is stated to have been prepared to ensure equitable distribution of facilities for higher education, having due regard for the needs of unserved and underdeveloped areas within the jurisdiction of the University. The plan was accorded sanction by the Academic Council and Management Council and was ratified by the Senate. The statement in the Perspective Plan mentions that it shall be updated, if necessary, after 5 years.
5. In respect of respondents Nos. 3, 4 and 8, it has not been disputed by the State that the applications of the said Colleges were beyond the perspective plan. It is also so stated in the communication sent by the University to the State Government under section 82(4) of the Act. The application of respondent No. 6 is within the perspective plan, but the recommendation of the Management Council in respect of this respondent, however was for grant of approval for Arts and Science College and denial of approval for Computer Science.
6. In respect of respondents No. 3, 4 and 8, besides stating that the said colleges did not come within the Perspective Plan, the communication of University also states that the approval was denied, since the said institutions do not have Science College.
7. Two questions arise for our consideration. The first question is whether the State Government has power to grant permission of opening of new institution, in exercise of power under proviso to sub-section (5) of section 82, despite the fact that the opening of the institution is beyond the Perspective Plan prepared by the University under sub-section (1) of section 82. The second question is, if such power vests with the State Government, on facts, could the cases of respondents Nos. 3, 4, 6 and 8 be termed as exceptional cases and whether reasons, as postulated by the said proviso, have been recorded. If the reasons were so recorded, whether the same are relevant or extraneous?
8. It would be useful to reproduce section 82 of the Act, which reads as under:---
"82. (1) The university shall prepare a Perspective Plan for educational development for the location of institutions of higher learning in a manner ensuring the equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and under-developed areas within the jurisdiction of the university. Such plan shall be prepared by the Academic Council and shall be placed before the Senate through the Management Council and shall be updated every 5 years.
(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan, shall be considered by the university.
(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of the University before the last day of October of the year preceding the year from which the permission is sought.
(4) All such application received within the aforesaid prescribed time-limit, shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.
(5) Out of the applications recommended by the University, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning:
Provided, however that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning.
(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institutions of higher learning."
It is clear from the aforesaid provisions that the application for opening a new college or institution of higher learning, which is not in conformity with the Perspective Plan, cannot be considered by the University. It is also clear that an application for grant of such permission cannot be entertained directly by the State Government. Thus, such an application has necessarily to be routed through the University-the purpose being the examination of such an application by those who are experts in the field.
9. All applications filed by the managements within the period stipulated by section 82(3) seeking permission to open new colleges or institutions of higher learning are required to be scrutinised by the Board of College and University Development and forwarded to the State Government with the approval of the Management Council with such recommendations as are deemed appropriate by the Management Council. The State Government, out of the applications recommended by University, may grant permission to such institutions as it may consider right, and proper in its absolute discretion, as stipulated by sub-section (5). Thus, under sub-section (5) the State Government has wide discretion to even decline permission to such institution, application of which may have been recommended by the University. Under proviso to this sub-section, the State Government has power to grant approval for starting new college or institution of higher learning, even though University may not have recommended the grant of such approval, but that power vests in the State Government only in exceptional cases where reasons for grant of such approval are required to be recorded in writing.
10. It is clear from the aforesaid provisions that such applications, which are not in conformity with the Perspective Plan and thus are outside the purview of the University for consideration, are also to be scrutinised by the Board of College and University Development and the same are also required to be forwarded to the State Government. These applications are only scrutinised under sub-section (4), but are not considered, in view of the bar contained in sub-section (2) of section 82. The language of the proviso, on which strong reliance has been placed by the learned Advocate-General, provides that in respect of the applications not recommended by the University the State has powers in exceptional cases, on reasons to be recorded in writing, to grant approval for starting a new college. The proviso, to our minds, deals with such applications which are considered by the University and then not recommended and in respect of such applications, the State Government has over-riding power to grant approval in exceptional cases. It does not postulate a power to grant approval in respect of the applications which the University is even debarred to consider. This interpretation is also in consonance with the entire scheme of section 82, including the bar contained in sub-section (2) and sub-section (6) of section 82. The proviso, on which reliance has been placed on behalf of the State Government, is proviso to subsection (5) and not in the nature of a non-obstante clause to the entire section. When applications are filed by the managements, section 82 contemplates three situations:---
(1) Applications not considered by the University.
(2) Applications considered and recommended by the University, and (3) Applications considered and not recommended by the University.
The power of the State Government under this proviso is in respect of the applications which are considered and not recommended, and not in respect of the applications which are not even considered. The power of the State Government in respect of the applications recommended by the University are found in substantive sub-section (5), From the mere fact that all applications, which are scrutinised, including those which are not considered, are required to be sent to the State Government, it is not possible to reach the conclusion that, even in respect of such not considered applications, the State Government has power under the proviso to grant approval. It is possible that, when such applications which are not considered are forwarded to the State Government, the State Government may find that the University was wrong in not considering the applications on the ground that the same are not in conformity with the Perspective Plan and, in those circumstances, it may require University to consider such applications. We may also briefly notice certain other provisions of the Act which lend support to only conclusion on the scope of power of State Government under proviso to section 82(5).
11. Section 4 sets out the objects of the University, which is to disseminate, create and preserve knowledge and understanding by teaching, research, extension and service and by effective demonstration and influence of its corporate life on society in general. It, inter alia, sets out as one of its objectives to extend the benefits of knowledge and skills for development of individuals and society by associating the university closely with local and regional problems of development, to promote equitable distribution of facilities of higher education; to provide for efficient and responsible administration, scientific management and develop organisation of teaching and research; and to promote acquisition of knowledge in a rapidly developing and changing society and to continually offer opportunities of upgrading knowledge, training and skills in the context of innovations, research and discovery in all fields of human endeavour by developing higher educational network. Section 5, which sets out powers and duties of University, inter alia, includes the powers to make provision to enable conducted and affiliated colleges and recognised institutions to undertake specialised studies and to lay down the conditions of affiliations, evaluation of the academic performance, to inspect the affiliated and recognised institutes, to recommend to take over in the public interest the management of some or all affiliated colleges and to do all such other acts and things as may be necessary for or incidental or conducive to the attainment of all or any of its objects. Section 8 of the Act shows that primarily the control of the State Government is in respect of the financial matters and the service conditions as well as other matters closely connected with the finance, which is provided by the Government.
12. Chapter IV sets out various authorities of the University such as Senate, Management Council, Academic Council and Board of College and University Development, their constitution, powers, functions and duties. Section 28(aa) provides that the Management Council shall consider the Perspective Plan for the academic development of the university, prepared by the Board of College and University Development. The said plan is prepared by the Board in exercise of its power under section 36(2). Plans, both short-term and long-term, are prepared, keeping in view the objectives of the University as laid down in the Act, and with due regard to the State and National Educational Policy. The responsibility to prepare the plan for development of the University is of the Board, as provided under section 35 of the Act. It is important to bear in mind that the Senate comprises also of two members of State Legislative Assembly and two members of the State Legislative Council elected by respective houses of State Legislature, of which they are members, besides various other experts in the field of education. Likewise, Management Council, Academic Council and the Board of College and University Development comprise of experts in the field of education. The Perspective Plan, after it is prepared by the Board, is examined and sanctioned by the Academic Council and Management Council and thereafter by the Senate.
13. Bearing in mind the aforesaid provisions, the aims and objects of the Act and the language of section 82, we have no doubt that proviso to subsection (5) of section 82 admits of only one interpretation: that the State Government has no power to accord approval to an institution which is not within the Perspective Plan. This interpretation is also in consonance with preserving the autonomy of the University. It has to be borne in mind that University comprises of experts in the field of education. The interpretation sought to be placed by the State Government would have the effect of nullifying sub-section (2) and sub-section (6) of section 82. The interpretation placed by us would also be in consonance with the purpose which was sought to be achieved for enacting the Act in place of the Bombay University Act, 1974 and other similar Acts pertaining to different universities.
14. We, thus, hold that the State Government has no power to grant permission for the starting of new college or institution of higher learning, in cases where application is not in conformity with the Perspective Plan.
15. Admittedly, respondents Nos. 3, 4 and 8 fall in the aforesaid category. In respect of these institutions, the State Government had no power to grant approval.
16. It is not in dispute that the application of respondent No. 6 was in conformity with the Perspective Plan. However, the University had not recommended the case of respondent No. 6 to start B.C.S. Course. It has not been disputed by the State Government that, in the case of this respondent, while granting permission to start Bachelor of Computer Science Course, no reasons were recorded. In this view, the grant of permission in favour of respondent No. 6 deserves to be quashed.
17. In respect of respondents Nos. 3, 4 and 6, it also deserves to be noticed that the reasons recorded by the Government for grant of approval are no reasons in the eyes of law. The record produced before us shows that, in respect of respondent No. 4, on a letter written by an M.L.A., the Chief Minister ordered that "Please give approval" on 15th April, 1998, and the reasons were made out by an officer later, considering that it was mandatory in law to record such reasons. The same is the position in respect of respondent No. 8. In respect of respondent No. 3, though the concerned Minister directed on the letter of the M.L.A. to Examine and Report, but reasons in respect of this institution were also identical to the reasons which were recorded in respect of respondents No. 4 and 8. In fact, the reasons recorded in respect of all the three respondents Nos. 3, 4 and 8, are identical and stereotype and no reasons, in eyes of law. It is a clear case of colourable exercise of power in granting permission to respondents Nos. 3, 4, 6 and 8 to grant B.C.S. Course. We may note that it was also strenuously contended, on behalf of the petitioners, that all the four institutions in question are being managed by influential people having a political clout and that it the reason for grant of approval for starting of course in question.
18. In view of the aforesaid, the permission granted to respondents Nos. 3, 4, 6 and 8 for starting B.C.S. Course being illegal is hereby quashed. Respondents No. 6 and 8 have not commenced the course. However, respondents No. 3 and 4 had admitted students for the academic year 1998-99 and we are told that the examination of the 1st year of B.C.S. Course is to start within few days. Despite our conclusion about the illegality of permission, as aforestated, we do not think that the students, who were admitted by respondents No. 3 and 4 should suffer. Accordingly, we permit the students admitted by respondents No. 3 and 4 to take Examination of the 1st year of the B.C.S. Course, if they are otherwise eligible. We direct the University to issue instructions to other colleges to admit and adjust such students, who are able to pass First Year and are eligible for admission to the 2nd year in the three years B.C.S. Course.
19. The writ petition is allowed in the above terms, and Rule is made absolute.
20. Writ petition allowed.