Gujarat High Court
Vadodara Jilla Sarvodaya Sevalmandal vs All India Council For ... on 22 July, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/7960/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7960 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VADODARA JILLA SARVODAYA SEVALMANDAL,THRO PRESIDENT
/....Petitioner(s)
Versus
ALL INDIA COUNCIL FOR TECHINALEDUCATION THRO SECRETARY &
1....Respondent(s)
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Appearance:
MS MAMTA R VYAS, ADVOCATE for the Petitioner(s) No. 1
MR VILAS G GOSWAMY, ADVOCATE for the Respondent(s) No. 1-2
NOTICE SERVED for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/07/2015
Page 1 of 17
C/SCA/7960/2013 JUDGMENT
ORAL JUDGMENT
1. Heard Ms. Mamta R. Vyas, learned advocate for the petitioner and Mr. Vilas G. Goswamy, learned advocate for the respondents.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 5.4.2013 passed by the respondents rejecting the application for approval for the course of Diploma in Engineering filed by the petitioner and has also prayed for further direction to the authority to inspect the institution and grant recognition.
3. Relevant facts which emerge from the record of the petition are as under: The petitioner trust filed online application for opening Diploma in Engineering College with the respondent - Council on 15.2.2013 and the petitioner was given ID No.11605143551. It Page 2 of 17 C/SCA/7960/2013 JUDGMENT appears from the record that the petitioner personally delivered copy of the application on 21.2.2013 along with all necessary documents and also paid fees to the tune of Rs.5 lacs. It is the case of the petitioner that thereafter, the petitioner also filed application for inspection and affiliation with the Gujarat Technical University on 20.2.2013 and paid fees of Rs.1,75,000/. It is the case of the petitioner that the petitioner wanted to start the Diploma Engineering College in the name of C.N. Parmar Polytechnic College for the academic year 201314. It is the case of the petitioner that all original files and necessary documents in two sets were submitted by the petitioner to the original office of the respondent - Council and as per the oral instructions, the petitioner also remained present before the respondent-Council on 22.2.2013. The respondent-Council scrutinized the application so filed by the petitioner and the petitioner was asked to remain present Page 3 of 17 C/SCA/7960/2013 JUDGMENT before the first Scrutiny Committee which was held in its meeting dated 26.2.2013. The petitioner was also asked by the respondent - Council telephonically to remain personally present on 1.3.2013. It is the case of the petitioner that the petitioner remained present and submitted the documents again before the Council. It is a matter of record that thereafter, the second Scrutiny Committee meeting was held on 3.3.2013 and by an order dated 6.3.2013, the application filed by the petitioner came to be rejected. It appears that thereafter, the same was considered by the Standing Appellate Committee of the respondent
- Council, wherein the petitioner was asked to remain personally present on 12.3.2013. The record shows that the petitioner remained present before the Standing Appellate Committee on 12.3.2013. The petitioner was informed that the plan which was submitted by the petitioner is not attested by the Central Architect and further orally informed that the same may be Page 4 of 17 C/SCA/7960/2013 JUDGMENT done when the inspection team comes for inspection. It is the case of the petitioner that though the plan submitted by the petitioner was already attested by the qualified registered Architect, the petitioner immediately submitted its plan duly certified by Central Architect - one Mr. Ruchir Sheth whose CA No. is 2011/52110. It is the case of the petitioner that the petitioner waited for the arrival of the inspection team; however, the petitioner on inquiry was told that his application is rejected on 5.4.2013. It is also the case of the petitioner that the petitioner was never given a copy of the order and being aggrieved by the rejection, the present petition is filed.
4. Ms. Mamta R. Vyas, learned advocate for the petitioner has asserted that it is crystal clear from the record of this petition that only for one reason, namely, to the effect that the plan is not duly certified by the Central Architect, the application of the petitioner is Page 5 of 17 C/SCA/7960/2013 JUDGMENT rejected. Ms. Vyas asserted that the petitioner has already submitted a copy of the plan duly attested by the Central Architect which is forming part of the record of this petition at AnnexureF. Still however, the same is not considered by the petitioner and even though the sole discrepancy which was pointed out by the respondent - Council, though has been removed before the deemed date, the same is not considered and the impugned order has been passed. It is submitted that even though the petitioner has paid huge amount of Rs.5 lacs, the inspection team was not sent and without proper verification, even to the extent of authenticity of the documents which are relied upon by the petitioner, the impugned order was passed which smacks of total nonapplication of mind on the part of the respondents. It is contended that the impugned order of rejection of the application filed by the petitioner is result of total nonapplication of mind and with a predetermined object to reject the Page 6 of 17 C/SCA/7960/2013 JUDGMENT petitioner's application on one ground or the other. It is therefore contended that the petition deserves to be allowed as prayed for.
5. Mr. Vilas G. Goswamy, learned advocate for the respondents has relied upon the affidavits dated 18.7.2013, 27.12.2013 and 8.10.2014. It is pointed out that by the learned advocate for the respondents that the said deficiency has not been removed and therefore, the decision taken by the Council is in accordance with law. Relying upon the ratio laid down in the case of Parshvanath Charitable Trust & Ors. Vs. All India Council for Technical Education & Ors., reported in (2013) 3 SCC 385, learned advocate for the respondents asserted that the prayers need to be granted as the academic year, even otherwise, is over. It is therefore submitted that the petition is misconceived and the same deserves to be dismissed.
6. Considering the submissions made by the learned Page 7 of 17 C/SCA/7960/2013 JUDGMENT advocates appearing for the respective parties and on perusal of the record of the petition including the affidavits, it appears that the Standing Appellate Committee of the respondent
- Council had, in fact, noted the deficiency which was earlier noted by the Scrutiny Committee as regards drawing was not attested/signed by Architect who is recognized by the Council of Architecture, though it was not rejected, but recommended for scrutiny. The record of this petition clearly shows that the map/drawing was submitted by the petitioner at least before the Appellate Committee decided the issue. However, the same is not considered by the respondent - Council in accordance with law. On the contrary, the respondent - Council has filed an affidavit and the same was done only after the order of rejection was passed. Even considering the communication dated 12.3.2013, it indicates that the petitioner had, on the basis of the information gathered from the web portal of the respondent-Council, Page 8 of 17 C/SCA/7960/2013 JUDGMENT submitted 5 documents which includes affidavit, conservation certificate, advocate report, building side plan, floor plan maps and certificate of Tahsildar which are forming part of the record of this petition as AnnexureF Colly. With respect, the respondent - Council has taken a very technical view in considering the application especially when its Rescrutiny Committee has opined for scrutiny of the application. The whole purpose of providing appeal before the higher forum is lost its purpose in the manner in which the application as well as the appeal is dealt with. The Apex Court in the case of Parshvanath Charitable Trust (supra) has observed thus: "35. It is the requirement of law that there should be strict adherence to the time schedule for grant of approval as well as for admissions without exception. In exercise of the powers vested in the AICTE, under subsection (1) of Section 23 of the AICTE Act, it had made regulations namely the All India Council for Technical Education (Grant of Approvals for Staffing New Technical Institution, Introduction of Course Page 9 of 17 C/SCA/7960/2013 JUDGMENT and Programmes and Approval of Intake Capacity) Regulations, 1994. Schedule to these regulations reads as under: Sl Stage of processing application Last date No by which the processing should be completed 1 For receiving proposals by 31st Bureau RC. December 2 For the Bureau RC to screen the application and (a) to return the incomplete applications to applicants, and (b) to forward the applications to (i) State Government concerned (ii) University or State Board concerned, for their comments
(iii) Regional Officer to arrange visits by Export Committees, and (iv) Bureaus MPCD, BOS and RA for their comments.
3 For receiving the comments is 15th March from (i) the State Government
(ii) the University or State Board and (iii) the Regional Committee based on the Expert Committee's report and (iv) from the Bureaus MPCD, BOS and RA.
4 For consideration of the 31st March comments from the State Governments, Universities or State Boards, Regional Committees, and Bureaus of the Council by the State level Committee.
5 For recommendations to be made 15th April by the Central Task Force 6 For communicating the final 30th April decision to the State Government or the University Page 10 of 17 C/SCA/7960/2013 JUDGMENT Grants Commission, under intimation to the Regional office, Director of Technical Education, applicant, University or State Board.
This Schedule has statutory backing. Thus, its adherence is mandatory and not directory.
36. Nonadherence of this Schedule can result in serious consequences and can jeopardize not only the interest of the college students but also the maintenance of proper standards of technical education. The authorities concerned, particularly the AICTE, should ensure proper and timely action upon the applications submitted to it. It must respond to the applicant within a reasonable time period and should not let the matter drag till the final date giving rise to avoidable speculations by all stakeholders. Thus, it would be appropriate for these authorities to bring to the knowledge of the parties concerned, the deficiencies, if any, and the defects pointed out by the Expert Committee during the inspection within three weeks from the date of such inspection or pointing out of defects, as the case may be. For better administration, the AICTE should also state the time within which such deficiencies/ defects should be removed by the applicant. This will help in building of a coherent and disciplined method of working to ensure the proper implementation of the entire formulated scheme of technical education. The AICTE will not have any jurisdiction or authority to Page 11 of 17 C/SCA/7960/2013 JUDGMENT issue approval for commencement of a new course or for additional intake of students beyond 30th April of the year immediately preceding the commencement of an academic year.
40. The above Schedule though was finalized by the Committee on 29th January, 2012 but the same appears to have been notified only on 30th September, 2012. The reasons for the same are again unknown. We are unable to appreciate that once the academic session begins on 1st August, then as to why should admission be granted upto 30th August of the year, particularly when, as per the terms of the Schedule, beyond or after 30th April, AICTE will not issue any approval for commencement of new course for additional intakes. The Schedule, thus, introduces an element of arbitrariness and may cause prejudice to the students who might miss their classes for a period of one month without any justification. Thus, it is required that the above stated Schedule be modified to bring it in line with the Schedule for approval as well as to prevent inequalities, arbitrariness and prejudice from affecting the students in relation to their academic courses. The order granting or refusing approval, thus, should positively be passed by 10th April of the relevant year. The appeal should be filed within one week and the Appellate Committee should hear the appeal and decide the same by 30th April of the relevant year. The University should grant/decline approval/affiliation by 15th May of the relevant year. Advertisement Page 12 of 17 C/SCA/7960/2013 JUDGMENT should be issued and entrance examination conducted positively by the end of the month of May.
46. For the reasons aforerecorded, we find no merit in both the appeals aforereferred. While dismissing these appeals, we issue the following directions :
46.1 Both grant/refusal of approval and admission schedule, as aforestated, shall be strictly adhered to by all the authorities concerned including the AICTE, University, State Government and any other authority directly or indirectly connected with the grant of approval and admission.
46.2 No person or authority shall have the power or jurisdiction to vary the Schedule prescribed hereinabove.
46.3 While dealing with the application for grant of approval to new colleges or additional seats, the AICTE shall inform the applicant within three weeks from the date of receipt of its application or date of inspection, as the case may be, the shortcomings/defects, who, in turn, shall remove such shortcomings/ defects within 15 days from the date of such communication or within such period as the AICTE may grant and re submit its papers without default.
The process of grant of approval has to be transparent and fair. The AICTE or the concerned University or State Government shall take disciplinary action against the person who commits default in adherence to the Schedule and performance of his duties in Page 13 of 17 C/SCA/7960/2013 JUDGMENT accordance therewith.
46.4 The reports submitted by the Expert Committee visiting the college should be unambiguous and clear, and should bear the date and time of inspection and should be sufficiently comprehensive and inspection be conducted in the presence of a representative of the institute. 46.5 The students of the appellant college shall be reallocated to the recognized and affiliated colleges in terms of the judgment of the High Court; and the AICTE and the concerned University shall ensure that the academic courses of these students are completed within the balance period of the academic year in all respects. For this purpose, if extra classes are required to be held, the concerned institute, the University and the AICTE are directed to ensure holding of such extra classes.
46.6 If the appellate authority decides the matter prior to 30th April of the concerned year and grants approval to a college, then alone such institution will be permitted to be included in the list of colleges to which admissions are to be made and not otherwise. In other words, even if the appellate authority grants approval after 30th April, it will not be operative for the current academic year. All colleges which have been granted approval/affiliation by 10th or 30th April, as the case may be, shall alone be included in the brochure/advertisement/website for Page 14 of 17 C/SCA/7960/2013 JUDGMENT the purpose of admission and none thereafter."
7. Considering the prayers prayed for, the petitioner cannot be granted any permission to start the Diploma in Engineering College from this academic year i.e. 201516. However, in the fact situation, following the ratio laid down by the Apex Court in the case of Parshvanath Charitable Trust (supra), after giving an opportunity to the petitioner-trust to remove the defects and when the documents were submitted in compliance with such defects, the same are not examined in its true letter and spirit. Mr. Goswamy is not in a position to show that the documents at AnnexureF Colly. were never submitted before the respondent - Council at any stage i.e. before passing of the impugned order. It is often found that while considering the applications for approval, the last date prescribed by the Apex Court in the case of Parshvanath Charitable Trust (supra) is not kept in mind by the Council while dealing with the application and the applications are Page 15 of 17 C/SCA/7960/2013 JUDGMENT being dealt with without proper application of mind to the documents that are submitted and on technical reason, the defects are highlighted and the applications are rejected. Case on hand in opinion of this Court is of such a category.
8. Resultantly, the impugned order dated 5.4.2013 passed by the respondents authorities is hereby quashed and set aside. The respondent-Council shall process the application filed by the petitioner in accordance with law as per the prevailing norms and the respondent-Council shall consider the application for the next academic year i.e. 201617 as per the prevailing norms and Rules. The respondent- Council shall take such a decision latest by 31.12.2015, after following due process as prescribed under the prevailing Rules. It would be open for the respondent-Council even to inspect the infrastructure of the petitioner while dealing with such an application and thereafter, take appropriate decision upon the application without in any manner being Page 16 of 17 C/SCA/7960/2013 JUDGMENT influenced by the fact that earlier the application came to be rejected. The time limit as prescribed by this Court shall be adhered to by all the parties and the petitioner shall also cooperate with the respondent-Council.
9. In view of the above, the petition is partly allowed in the above terms. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs.
(R.M.CHHAYA, J.) mrp Page 17 of 17