Gujarat High Court
Industrial Training Institute, Shree ... vs State Of Gujarat on 11 November, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/11415/2022 ORDER DATED: 11/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11415 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 11415 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11416 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 11416 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11418 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 11418 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11420 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 11420 of 2022
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INDUSTRIAL TRAINING INSTITUTE, SHREE RAJ SHYAMAJI SEVA TRUST
Versus
STATE OF GUJARAT
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Appearance:
MS DISHA N NANAVATY(2957) for the Petitioner(s) No. 1
MS MANISHA SHAH, GOVERNMENT PLEADER for the Respondent No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 11/11/2022
ORAL ORDER
1. Since the common facts and question of law are involved in all these petitions, all are heard and being disposed of by Page 1 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 this common judgment. Learned advocates for the parties have referred to the pleadings of Special Civil Application No.11420 of 2022 and, therefore, it is treated as main matter and the facts have been taken from the same.
2. The petitioners have preferred the respective petitions under article 226 of the Constitution of India for the following reliefs:-
"(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ, order or direction in nature of mandamus and be pleased to quash and set aside the impugned communication dated 23.05.2022 issued by respondent no.2;
(B) Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to stay the operation, implementation and execution of the impugned communication dated 23.05.2022 issued by Respondent no.2;
(C) This Hon'ble Court be pleased to grant any other and further orders as may be deemed fit in the interest of justice."Page 2 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022
C/SCA/11415/2022 ORDER DATED: 11/11/2022 2.1 All the prayers are identical in these petitions and the only difference is the date of impugned order in Special Civil Application No.11418 of 2022, which is 3.6.2022.
3. Heard Learned advocate Mr.Mitul Shelat for the petitioners and learned Government Pleader, Ms.Manisha Shah for the respondent-State at length. Perused the material placed on record and the decisions cited at bar.
4. The brief facts giving rise to the present petition are as under:-
4.1 The petitioner is a Self Financed Industrial Training Institute established and managed by Shree Raj Shyamaji Seva Trust. That to implement the policy of the State Government of establishing industrial training institutes in rural and tribal areas, the petitioner institute was established by the Trust.
Initially, temporary permission was granted to the petitioner institute in terms of letter dated 5 th August 2015 and 29 th October 2016. It was granted permanent affiliation by the Director General of Training, Ministry of Skill Development and Entrepreneurship, Government of India vide letter dated 25 th September 2016.
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C/SCA/11415/2022 ORDER DATED: 11/11/2022 4.2 That the petitioner institute is imparting various industrial training courses and is creating employment opportunities for rural and tribal students in Kalol taluka. It is contended that in order to provide greater access to the students, the petitioner decided to apply for recurring grant from the State Government. It is contended that the Government of Gujarat has introduced a policy of providing recurring grant for 94 ITI institutes comprising of establishment of 282 teachers. 4.3 According to the petitioner, since only limited institutes applied in reference to the said policy and some of the institutes which were granted benefits of recurring grants were closed down, the State Government was granting recurring grants to self finance institutes on case to case basis. That the petitioner by letter dated 30th May 2021 submitted an application for being considered for the benefit of recurring grant to Additional Chief Secretary, Labour and Employment Department. It is contended that the petitioner undertook that in the event it is paid the recurring grant, it would not charge fees. Pursuant to the said application of the petitioner respondent no.1 by letter dated 11th June 2021 instructed Page 4 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 respondent no.2 to take steps in respect of said application of the petitioner.
4.4 That pursuant to the said letter of respondent no.1, Deputy Director, Employment and Training Department, Gandhinagar, by letter dated 20 th June 2021 instructed respondent no.3 to conduct inspection and asked to check information and documents of the petitioner institute. The Regional Deputy Director, Vadodara, was instructed to submit his report to Employment and Training Department, Gandhinagar. Pursuant to that instruction respondent no.3 conducted inspection on 1st July 2021 and verified all the documents submitted by the petitioner institute and ultimately respondent no.3 submitted its report to respondent no.2 vide letter dated 2nd July 2021 and recommended to give recurring grant to the petitioner institute.
4.5 That considering the benefits which would be available to the students of rural and tribal areas, Member of Legislative Assembly by later dated 26 th October 2021 recommended to consider the application of the petitioner for recurring grant. Said letter of MLA was forwarded by responded no.1 to Page 5 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 respondent no.2 vide communication dated 2nd November 2021 for taking appropriate action. It is also contended that vide communication dated 26th October 2021, the Minister of State, Labour and Employment, Panchayat, Rural Housing Construction and Rural Development, has also recommended for consideration of the application of the petitioner for recurring grant.
4.6 That the petitioner's application was favourably considered and decision was taken to provide recurring grant to the petitioner institute from January 2022 and in terms thereof, 8 employees of the petitioner institute came to be included in the direct payment scheme of the State Government. Pursuant to that the petitioner submitted its salary bill from January 2022 to April 2022 of the employees of the petitioner institute and the employees have received salary into their accounts for the said period i.e. from January 2022 to April 2022.
4.7 Accordingly, the petitioner submitted salary bill for the month of May 2022, which came to be returned by the treasury department. In the meanwhile, the petitioner also Page 6 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 received communication dated 23rd May 2022, by which the petitioner was informed that decision was taken to discontinue the grant in respect of the petitioner institute. That the petitioner institute made representation dated 31 st May 2022 to respondent no.2 and Additional Chief Secretary, Employment and Training Department and to Minister of State requesting to continue making payments of salary to the employees of the petitioner institute as per the recurring grant. It is contended by the petitioner that the respondents have not replied to the said representation.
4.6 On the aforesaid facts, it is contended by the petitioner that action of the respondents is arbitrary, unreasonable and against the principles of natural justice and no opportunity of hearing has been provided to the petitioner, therefore, it is prayed that the relief, as prayed for, by the petitioners may be granted.
5. Since a little question of law is involved in these petitions, notice for final disposal has been issued. Upon service of notice, affidavit in reply has been filed by respondent no.1, at page 43 of the people book, wherein it has raised objection as Page 7 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 regards the maintainability of the petition on the ground that the petitioner has made representation on 31 st May 2022 and the same was received by the authority on 4 th June 2022 and before any decision is taken by the authority, the petitioner has approached this Court by filing present petition, therefore, present petition is not maintainable and it may be dismissed on this ground. It is also contended that initially necessary temporary approval was granted to the petitioner. It is stated that it was granted for the purpose of three vocations, i.e. for fitters, electricians and sewing technology and that too for 96 seats and six batches, subject to the terms and conditions stipulated under the approval order and it was on self-finance basis. It is contended that, as per condition number one thereof, for the purpose of setting up seats/training, it was specifically mentioned that they shall not be entitled to any grant from the department either at present or in future. 5.1 It is contended that, in the year 2016, pursuant to the request of the petitioner for the purpose of change in trade, same was granted to run vocational training on self finance basis and it was made clear that the petitioner would not be entitled to receive any kind of grant from the State Government.
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C/SCA/11415/2022 ORDER DATED: 11/11/2022 5.2 It is contended that the petitioner made representation at the level of Chief Minister and Honorable Minister concerned to convert its self-finance institute seats into grantable one and on the same basis, the then Minister, Law and Employment, sanctioned the same vide noting dated 31st January 2017. Since the decision had huge financial implication, it was submitted to Finance Department for approval of the Honourable Finance Minister and Honorable the Chief Minister, as per the procedure of the State Government. It is contended that the Finance Department had vide Government Resolution dated 14th October 2014 issued instructions on various counts in the direction of administrative fiat and for the purpose of seeking necessary approval of the Finance Department. It is contended that accordingly before converting any self finance institute into a grant-in-aid institute or to provide any kind of financial aid to a self finance institute approval of the Finance Department is mandatory. It is contended that consequently the Finance Department has denied the request and it was advised by the Finance Department to bring up the same as new item in the subsequent budget in the legislative assembly vide its note dated 26th October 2017. It is contended that Page 9 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 subsequently the then Honourable Minister, Labour and Employment, again instructed the administrative department by noting dated 20th December 2018 to pay the recurring grant mentioning that same be included in the continuous item. The said note was sent to the Finance Department for approval but the same came to be denied by the Honourable Finance Minister with a note dated 1st April 2019 and the decision was communicated to the Director of Employment and Training vide communication dated 29th July 2021.
5.3 It is contended that as per the Government policy, any decision with respect to providing grant in aid or to provide any kind of aid to a private institute or self finance institute is required to be taken in accordance with the Grant in Aid Code. That too, in consultation with the Finance Department. 5.4 It is contented that in the present case no decision has been taken of providing any grant or financial aid or assistance to the self finance institute. It is contended that release of recurring grant to the concerned self-finance institute is not as per the Government policy and it is without seeking any necessary approval from the finance department. It is Page 10 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 contented that since the release of recurring grant itself was arbitrary and illegal, as soon as it came to the notice of the respondent, it was incumbent upon him to issue appropriate direction to safeguard the interest of the State Government and, therefore, the impugned communication cannot be termed as illegal.
5.5 It is also contended that reliance placed by the petitioner on the Government Resolution dated 21 st June 2008 is misconceived. It is contended that, as an administrative measure, the impugned communication has been issued and it is within the administrative power of the concerned authority and it has to see that any administrative decision which is taken contrary to the authorized power can be rectified and corrected and corrective measures can be taken. Therefore it is prayed to dismiss the petition.
6. It appears that the petitioner has filed affidavit-in- rejoinder, at page 64, wherein it has reiterated its contentions and, in addition to that, it has contended that even as per Government Resolution dated 14 th August 2014, clause 1 (b) (2) (iii), there is no need of prior approval of the Finance Page 11 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 Department in case the seats are already sanctioned. It is contended that as recurring grant was sanctioned to the petitioner on the basis of already sanctioned seats, there was no need of any approval of the Finance Department. The petitioner has also stated that in recurring grant, the Government is only reimbursing the salary, whereas in case of grant-in-aid, in addition to salary, the Government would reimburse expenditures of various other categories, which includes electricity, furniture and stationery etc. It is also contended that when the concerned Minister, as Head of the Department, has sanctioned the recurring grant, it is a decision of the State Government and the same cannot be cancelled or withheld by the subordinate officer as has been done in the present case. It is contented it that it is not permissible for one department with regard to the decision of the State Government, which has been consciously taken by the concerned Minister, who is head of the department. it is also contended that the order of sanctioning recurring grant is proper and it should not have been kept in abeyance. It is contended that impugned communication issued by respondent-Director is without any authority of law and before passing such communication, no opportunity of being heard Page 12 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 was given to the petitioner and, therefore, impugned communication being ex facie illegal, arbitrary and unconstitutional, the same deserves to be set aside and reliefs, as prayed for by the petitioner may be granted.
7. It appears that against the affidavit in rejoinder, respondent has also filed affidavit in sur-rejoinder, at page 72, wherein it has reiterated its contention of affidavit in reply. It is contended that by virtue of impugned communication, as a stopgap measure and ad-interim measure, order of recurring grant is kept under suspension. It is also contended that the Government Resolution of 14th August 2014 needs to be read as a whole and not in isolation as contended by the petitioner. The respondent has placed reliance upon clause-8 of the said resolution and has contended that for the purpose of issuing grant-in-aid to any self finance institute prior approval of the State Government through Finance Department is required. It has prayed to dismiss the petition.
8. Learning advocate Mr.Mitul Shelat for the petitioner, while referring to various communications placed on record and the contentions raised in memo of petition as well as in Page 13 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 sur-rejoinder affidavit and affidavit in reply of the respondent, has submitted that the petitioner institute is a self financed institute imparting training to the students of tribal areas. He has submitted that as per the decision taken by the Head of the Department, in a meeting, already sanctioned seats were allotted to the petitioner and recurring grant was sanctioned for salary of employees of the institute. He has also submitted that, as per the decision taken in the said meeting, necessary grants were released and salary bill for the months of January 2022 to April 2022 were already paid to the concerned employees of the institute by the treasury.
8.1 Learned advocate, Mr.Shelat also submitted that when the bill for the month of May 2022 was made before the treasury. It was not paid and, in the meanwhile, the petitioner received impugned communication whereby recurring grant has been stopped and salary bill has been returned back to the petitioner. He has submitted that the said communication is dated 23rd May 2022. Mr. Shelat, while referring to the said communication submitted that there is no reason mentioned in the said communication and it is a non-speaking communication. He has also submitted that before issuance of Page 14 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 such communication no opportunity of being heard was provided to the petitioner. He is also submitted that when Head of the Department has taken a decision to grant recurring grant to the petitioner, the Director, who is subordinate officer, has no authority in law to set aside such decision. He has submitted that due to this decision of the Director, there is adverse civil consequence upon the rights of the petitioner.
8.2 Learned advocate Mr.Shelat also submitted that the respondent has, for the first time, provided reason that there was no prior approval obtained from the Finance Department. He has submitted that however as per Government Resolution of 2014, there was no need of any prior approval of the Finance Department in case of already sanctioned posts in respect of educational institution which includes ITIs. He has further submitted that as the Government has already sanctioned recurring grant in favour of the petitioner and has paid such grant for the months of January to April 2022 the petitioner institute has already stopped taking fees and now the Government has stopped recurring grant which has adverse civil consequences upon the rights of the petitioner. Page 15 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022
C/SCA/11415/2022 ORDER DATED: 11/11/2022 He has submitted that the concerned authority has no legal power to stop the grant. He has also submitted that by mere sanctioning of recurring grant, the petitioner institute does not become grant in aid institute. He has submitted that when any action is proposed to be taken against any institute and if it has an adverse civil consequence, then as per the requirement of natural justice, appropriate opportunity of being heard needs to be provided to such institute. He has submitted that if there is any breach of principles of natural justice then any action of the Government needs to be set aside only on that ground. He has submitted that in the present case since no opportunity of being heard was provided to the petitioner before stopping recurring grant, the impugned communication needs to be set aside and the petition deserves to be allowed. In support of his submissions he has relied upon the following decisions:-
(i) Patel Narshi Thakershi and Others v. Shri Pradyumansinghji Arjunsinghji reported in 1971 (3) SCC 844, wherein it is observed as under:-Page 16 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022
C/SCA/11415/2022 ORDER DATED: 11/11/2022 "4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside."
(ii) Shivagangagiri Vidyabiruddi Samste v. State of Karnataka and Others reported in (2011) 15 SCC 543, wherein it is held as under:-
"7. Valuable rights had accrued to the appellant by reason of the order dated 1.1.2002 which revived the earlier order dated 3.8.1985 thereby granting permission to the appellant to establish the Junior college from Page 17 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 1985-86. Such an order, obviously, could not be withdrawn without any show cause notice or giving an opportunity to the appellant to show cause. In fact, having regard to the provisions of the Karnataka Education Act, 1983, an opportunity to show cause is required before withdrawal of any permission. In the circumstances, the order dated 21.9.2002 being opposed the principles of natural justice cannot be sustained. The appellant has to succeed on this limited ground."
(iii) Dipak Babaria and Another v. State of Gujarat and Others reported in (2014) 3 SCC 502, wherein it is held as under:-
"64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay vs. Gordhandas Bhanji reported in AIR 1952 SC 16 in the following words:-
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer Page 18 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commissioner reported in 1978 (1) SCC 405 wherein Krishna Iyer, J. has stated as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
(iv) Lloyd Electric and Engineering Limited v. State of Himachal Pradesh and Others reported in (2016) 1 SCC 560, wherein it is held as under:-
"14. The State Government cannot speak in two voice. Once the Cabinet takes a policy decision to extend its Page 19 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31.03.2009, upto 31.03.2013, and the Notification dated 29.05.2009, accordingly, having been issued by the Department concerned, viz., Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the Government policy and not their own policy. Once the Council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31.03.2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification."
(v) Opto Circuit India Limited v. Axis Bank and Others reported in (2021) 6 SCC 707, wherein it held as under:-
"13. The action sought to be sustained should be with reference to the contents of the impugned order/communication and the same cannot be justified by improving the same through the contention raised in the objection statement or affidavit filed before the Court. This has been succinctly laid down by this Court in the case of Mohinder Singh Gill & Another vs. The Chief Page 20 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 Election Commissioner, New Delhi & Ors. (1978) 1 SCC
405) as follows;
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:
9. .... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
9. Per contra, learned Government Pleader, Ms. Manisha Shah, while placing reliance upon the material placed on Page 21 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 record, has vehemently submitted that it is an undisputed fact that the petitioner is a self-finance institution and as per earlier order dated 29th July 2015 it is not entitled to any grant in aid or financial assistance from the Government. She has submitted that, on the basis of the application made by the petitioner for recurring grant, the concerned authority has only recommended to the lower authority to act in accordance with law. She has submitted that as per the rules of business of the Government and the State policy, whenever there is financial implication, approval of the Finance Department needs to be obtained. While referring to the communication and the orders regarding recurring grant to the petitioner institution, she has submitted that prior to issuing such order of recurring grant, no financial approval was obtained. When the order of giving recurring grant to the petitioner was without any prior approval of the Finance Department, the action itself is defective and, therefore, it can be rectified at any point of time. She is also submitted that the Director cannot act on the recommendation of the Minister as he has to act in accordance with the Government policy and the Grand in Aid Code. She has submitted that the decision has been taken without prior approval of the Finance Department. She has submitted that Page 22 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 the impugned communication was issued as a stop gap arrangement and final decision is not yet taken by the Government and representation of the petitioner is still pending. She has submitted that when the representation was pending, the petitioner ought to have waited till decision on such representation. While referring to the contentions raised in the petition as well as the affidavit in reply, she has submitted that impugned communication is of 23 rd May 2022 and the representation was made on 31 st May 2022, which was received in the first week of June 2022 by the department and in few days the present petition came to be filed. She has submitted that the petition itself is premature as the petitioner did not wait till the decision is taken on its representation. She has submitted that the decisions relied upon by the learning advocate for the petitioner are factually are not applicable to the present case. She has prayed to dismiss the petitions. She has relied upon the following decisions:-
(i) Bhagwan Budha Prathmik Technical Training College, Nirmali v. State of Bihar and Others reported in (2010) 13 SCC 572, wherein it is observed as under:-Page 23 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022
C/SCA/11415/2022 ORDER DATED: 11/11/2022 "19. If an administrative order is based under an erroneous assumption of one's own power and if it goes to the root of the matter, the authority concerned can certainly review it for valid reasons, and if that is so done, the withdrawal can not be called to be a mala fide one. ............."
(ii) Vinod Kumar v. State of Haryana and Others reported in (2013) 16 SCC 293, wherein it is observed as under:-
"25. The decision of the administrative authority must be related to the purpose of the enabling provisions of Rules or Statutes, as the case may be. If they are manifestly unjust or outrageous or directed to an unauthorized end, such decisions can be set aside as arbitrary and unreasonable. Likewise, when action taken is ultra vires, such action/decision has no legal basis and can be set aside on that ground. When there are Rules framed delineating the powers of the authority as well as the procedure to be followed while exercising those powers, the authority has to act within the limits defined by those Rules. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross Page 24 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 unreasonableness. This was so explained in Shri Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223 in the following manner:
"51. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B.
223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426:
"...It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first...."
In Barium Chemicals Ltd. and Anr. v. The Company Law Board and Ors., : [1966] Supp. SCR 311, this Court states:
"60. ......Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one Page 25 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts."
In Renusagar, AIR 1988 SC 1737 , Mukharji, J., as he then was, states:
"86. .....The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated".
52. The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
26. Thus, if wrong and illegal acts, applying the aforesaid parameters of judicial review can be set aside by the courts, obviously the same mischief can be undone by the administrative authorities themselves by reviewing such an order if found to be ultra vires. Of course, it is to be done after following the principles of natural justice. This is precisely the position in the instant case and we are of the considered opinion that it was open to the Page 26 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 respondents to take corrective measures by annulling the palpably illegal order of the earlier DGP, Haryana."
10. In rejoinder, leaned advocate Mr.Shelat has submitted that the Director is head of the department and any decision taken by the director is binding upon his successor. He has submitted that the successor Director cannot review the order of his predecessor in office. He has vehemently submitted that there were many persons present in the meeting and it was a collective decision and copy thereof was sent to various departments of the Government. He has submitted that therefore earlier order of recurring grant is a decision of the Government. He has also submitted that considering the decision of 2019 since grant has been released to the petitioner on sanctioned post there was no need of any prior approval of the Finance Department and, therefore, the impugned communication needs to be set the side. He has prayed to allow the petitions.
11. Having considered the submissions advanced on behalf of both the sides coupled with the material placed on record and decisions cited at bar, it reveals that there is no dispute Page 27 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 that the petitioner is self financed institution. It also appears from the material placed on record that the petitioner has approached the Government for sanction of recurring grant for unutilized seats which were sanctioned to other institutions. It also appears that on such application the concerned authority has directed its subordinate office to verify the information and to take appropriate action. It appears that on the basis of such communication, the concerned subordinate authority has verified the information submitted by the petitioner and has recommended for giving recurring grant to the petitioner as per the prevalent grant in aid Code. This fact is reflected from the communication dated 3rd July 2021 of the Deputy Director, Training, Regional Office, Baroda. It also appears that recommendations have been made by MLA and thereafter there was some meeting held in presence of the concerned Minister and certain seats which were unutilized and were earlier sanctioned on the basis of the grant in aid Code were allotted to the present petitioner and recurring grant came to be sanctioned. Now it is also admitted fact that on the basis of said communication, salary bills for the months of January to April 2022 came to be paid. By impugned communication dated 23rd May 2022, the grant came to the suspended as an Page 28 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 interim measure till further instruction is received from the Government.
12. Now, it appears that both the sides are relying upon Government Resolution dated 14th August 2014, which is that page 55 to 62 in the compilation. On perusal of the said Government Resolution, it appears that it is a composite instruction issued by the Government for various economic measures regarding establishments. It has been provided that no post be created without prior permission of the Finance Department. There is also a provision made to the effect that all the departments have to revisit their establishment and as per the workload, the strength of the concerned post is to be decided and thereafter, it has to obtain prior permission of the GAD as well as Finance Department. That, thereafter, the concerned department could make recruitment for the same. It is also provided that, in all such cases, thereafter, there would be no need of any prior approval of the Finance Department. It is also provided therein that for certain posts there would be no need of prior approval of the Finance Department which includes posts pertaining to medical services and various posts in the establishment of the Courts which are under the control Page 29 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 of the High court and the posts of staff members of the Gujarat High court. It is also mentioned therein that the posts relating to educational institutions which have already been sanctioned,as per MCI, AICTE norms and grant in aid posts, no prior approval of the Finance Department is required. In clause 8, it has been specifically provided that there would be necessity of prior approval of the Finance Department before recognizing any self finance institution as grant in aid institution. Thus, elaborate instructions are issued by the Government in respect of necessity of prior approval of the Finance Department in case of creation of new posts as well as treating a institute as self financial institute or a grant in aid institute. On perusal of the order of recurring grant to the petitioner, it clearly reveals that it is issued with a clear observation that the grant in aid Code is to be applied. Thus, though underutilized seats of other institutions, which were earlier treated as grant in aid to that particular institution have been sanctioned or allotted to the petitioner, the nature of grant would be governed under the grant in aid Code. Therefore, naturally the concerned authority has to act in accordance with the grant in aid Code. It reveals that there is no mention as to the approval of the Finance Department for Page 30 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 the proposal. It is pertinent to note that decision of the Government is cumulative decision of the Ministers and any individual Minister has no authority in the eyes of law to sanction any post or grant any financial benefits to anybody without concurrence of the entire Government. It is obvious that any decision which has financial implication needs approval of the Finance Department. It is also pertinent to note that if any decision of the administrative authority has not been taken in accordance with the established procedure or rules, then the said decision can be reviewed by the concerned competent authority. The submission of the petitioner that the Minister as a head of the department has authority to take a decision cannot be accepted in the facts of the present case.
13. It is also pertinent to note that by impugned communication the concerned authority has only made stop- gap arrangement by suspending payment of salary bill till further instructions are received from the Government. Thus, it is not a final decision taken by the concerned competent authority canceling earlier order of giving recurring grant. It is pertinent to note that the impugned communication is dated 23rd May 2022 and the petitioner has made representation on Page 31 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022 C/SCA/11415/2022 ORDER DATED: 11/11/2022 31st May 2022 and without waiting for appropriate decision by the concerned authority, the petitioner has rushed to this Court by filing present petition on 8.6 2022. Thus, the petitioner has not even waited for appropriate time to enable the authority to decide its representation. It is pertinent to note that during the course of arguments the respondents have expressed that the representation made by the petitioner is still pending and it would be decided after hearing the petitioners.
14. Thus, considering overall facts and circumstances of present case, these petitions are premature and deserve to be dismissed. The representation of the petitioner is still pending for hearing. In view of above, if the following order is passed it will meet the ends of justice.
15. All these petitions are dismissed. The respondent Government authorities are hereby directed to decide the representations made by the petitioners against impugned communication, after affording appropriate opportunity of being heard to the petitioners, within a period of six weeks from the date of receipt of this order and without being influenced by any observation made in the order by this Court. No order as to costs. Direct service is permitted. Page 32 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022
C/SCA/11415/2022 ORDER DATED: 11/11/2022
16. In view of above order, connected Civil Applications in the respective Special Civil Applications are also disposed of.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 33 of 33 Downloaded on : Fri Nov 11 21:11:36 IST 2022