Punjab-Haryana High Court
Khalsa College (Asr) Of Technology And ... vs All India Council Of Technical ... on 18 February, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.20710 of 2012 1
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.20710 of 2012
Date of decision:18.02.2013
Khalsa College (ASR) of Technology and Business Studies, SAS Nagar,
Punjab and another
...Petitioner(s)
Versus
All India Council of Technical Education, New Delhi and others
...Respondent(s)
CORAM:HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Dr.Balram Gupta, Sr. Advocate with
Ms.Madhu Sehgal, Advocate,
for the petitioners.
Mr.S.K.Sharma, Advocate for respondent Nos 1 and 2 with
Mr.Mr.S.K.Jena, Regional Office, AICTE.
RAMESHWAR SINGH MALIK, J. (Oral)
Petitioners, by way of instant writ petition filed under Articles 226/227 of the Constitution of India, seek a writ in the nature of certiorari, for quashing of the impugned orders dated 4.4.2011 (Annexure P-11) and dated 6.7.2012 (Annexure P-21) issued by respondent No.1. Further, a writ in the nature of mandamus is also sought directing the respondents to grant approval to the petitioners, on the basis of proceedings of the Standing Appellate Committee of the respondents.
Facts first. The petitioners submitted an application to respondent No.1 with a view to seek its approval for starting new course CWP No.20710 of 2012 2 of Masters in Business Administration for the Academic Session 2012-
13. Petitioners were intending to establish a new technical campus for starting the Masters in Business Administration (`MBA' for short). With a view to achieve this object, petitioners applied vide application dated 23.1.2012 (Annexure P-1), alongwith process fee of Rs.5 lacs, as clear from Annexure P-2 dated 1.2.2012. Petitioner-college is affiliated with Punjab Technical University (PTU), Jalandhar. Petitioners applied for intake capacity of 60 seats.
In response to the application of the petitioners, they received a letter dated 12.2.2012 (Annexure P-3), wherein the petitioners were requested to be present in person with all the specified relevant documents in original, on 15.2.2012 at National Institute of Technical Teachers Training and Research in Sector-26, Chandigarh. On scrutiny, some deficiency was pointed out vide Annexure P-4 and petitioners were requested to be present in person with all the relevant documents at PHD Chamber of Commerce and Industry, Sector-31A, Chandigarh, on 3.3.2012, vide Annexure P-5 dated 26.2.2012.
Re-scrutiny Committee of respondent No.1, vide Annexure P-6, recommended the case of the petitioners for the visit of Expert Committee and petitioners were informed accordingly, vide Annexure P- 7 dated 3.3.2012. Thereafter, petitioners were intimated vide Annexure P-8 dated 4.3.2012 that the Expert Committee will visit on 12.3.2012. The Expert Committee visited and submitted its report, Annexure P-9. Certain deficiencies with regard to the area of some rooms and construction not as per approved map, were raised, but the application of CWP No.20710 of 2012 3 the petitioner was recommended to the Regional Committee, as per Annexure P-10 dated 12.3.2012. However, vide impugned communication dated 4.4.2012, Annexure P-11, application of the petitioners was rejected.
Dissatisfied, petitioners moved their appeal before the Standing Appellate Committee, which was duly received as clear from letter dated 9.4.2012 (Annexure P-12). Thereafter, vide letter dated 18.4.2012 (Annexure P-13), petitioners were directed to appear before the Standing Appellate Committee on 20.4.2012. After considering the appeal of the petitioners, the Standing Appellate Committee vide its report dated 20.4.2012 (Annexure P-14), made the following observations:-
"Documents verified and found correct. The institute stated that they did construction as per the approved plan which were not made for AICTE Institution. Now they have changed the construction as per the norms of the AICTE, but technically, they have not got the approval from Municipal Authority, PUDA. They moved an application seeking some time to get the plan approved."
On that very day, i.e. 20.4.2012, petitioners moved an application (Annexure P-15), seeking time of 20 days for doing the needful, which was duly entertained by the Chairman of the Standing Appellate Committee, who put his endorsement thereon, which reads as under:-
"Letter submitted by Dr.Harish Kumari. Letter to be placed on the record and may be taken as part of the proceedings.
-Sd-
Chairman, SAC."CWP No.20710 of 2012 4
Re-scrutiny Committee submitted its report dated 1.5.2012 making following observations:-
"The plans were approved previously by Town planning department. The plans were re-submitted and the final approval is pending in a few days. The previous approval details are given in the old report, as follows:-
Approving Authority: State Officer, PUDA, SAS Nagar, Mohali Certificate No.: 88 Approval date: 4/12/2007 Permitted use: Educational."
Petitioners received the intimation from Greater Mohali Area Development Authority (GMADA) regarding sanctioning of Building Plan, vide communication dated 10.5.2012 (Annexure P-17). Petitioners at once intimated the same to respondent No.2 on the same day, i.e., 10.5.2012 vide Annexure P-18, which was duly received by respondent No. 2 on 10.5.2012 itself. Petitioners requested for granting approval, as all the deficiencies pointed out had been duly removed. Petitioners wrote another request letter dated 11.5.2012 to respondent No.2, vide Annexure P-19, repeating their request for granting approval.
When the petitioners did not get any intimation and after waiting for a reasonable time, a request was again made, vide letter dated 25.5.2012 (Annexure P-20), giving all the details of the case. However, request of the petitioners did not find favour with the respondent authorities and the impugned communication dated 6.7.2012, rejecting CWP No.20710 of 2012 5 the request of the petitioners, was issued vide Annexure P-21.
Feeling aggrieved against the impugned action of the respondents, conveyed to the petitioners vide letters dated 4.4.2012 (Annexure P-11) and dated 6.7.2012 (Annexure P-21), petitioners have approached this Court by filing the present writ petition. That is how, this Court is seized of the matter.
Notice of motion was issued by this Court on 15.10.2012 by passing the following order:-
"The prayer of the petitioners for starting MBA Course was rejected on the ground that the building, which was constructed by the Institution, did not conform to the norms laid down by AICTE. The Institution at the time of inspection brought to the notice of the authorities that they have carried out the construction as per the requirement of AICTE and sought 20 days time to get the necessary approval from the concerned authorities, like PUDA etc. The sanction has been obtained within the requisite period of 20 days and intimation in this regard was sent to the respondents on 20.4.2012 (Annexure P-15). Still, the prayer of the petitioner-Institution has been rejected without taking into account this position.
Notice of motion for 31.10.2012.
At this stage, Mr.Vivek Singla, Advocate appears and accepts notice on behalf of respondent No.1. Prays for time to have instructions.
In response to the above-said order and having been duly CWP No.20710 of 2012 6 served, a joint reply was filed on behalf of respondents Nos. 1 and 2. However, no reply was filed on behalf of respondent No.3.
Learned senior counsel for the petitioners submits that impugned action was unjust and unreasonable, being violative of Article 14 of the Constitution of India. He further submits that the application of the petitioners submitted on 20.4.2012, vide Annexure P-15, was duly entertained by the Chairman of the Standing Appellate Committee. However, the impugned order (Annexure P-21) does not show whether the request made on behalf of the petitioners and also the recommendation made by respondent No.2 in favour of the petitioners, were even considered by respondent No.1, before issuing the impugned communication dated 6.7.2012. He next contended that the impugned communication dated 6.7.2012 was non speaking on the face of it. Learned senior counsel also submits that one year of the petitioners has gone waste because of the arbitrary action of the respondents. Since all the deficiencies have been duly removed by the petitioners to the entire satisfaction of the respondent authorities and nothing was lacking in their application, the request of the petitioners may be directed to be considered at least for the coming Academic Session, i.e. 2013-14. Finally, he prays for setting aside the impugned orders and acceptance of the writ petition.
Per contra, learned counsel for respondents Nos. 1 and 2 submits that the respondents did not commit any error of law, while rejecting the application of the petitioners. The impugned orders were passed in accordance with law and the same deserve to be upheld. He CWP No.20710 of 2012 7 concluded by submitting that since the writ petition was misconceived and without any substance, the same liable to be dismissed.
Having heard the learned counsel for the parties, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the the present writ petition deserves to be allowed, the impugned orders being unsustainable in law. To say so, reasons are more than one, which are being recorded hereinafter.
A bare combined reading of the different reports submitted by the Expert Committee, Scrutiny Committee and Re-scrutiny Committee, pointing out some deficiencies would show that vide Annexure P-10, application of the petitioner was not rejected but it was recommended to the Regional Committee for further processing. However, without making even a passing reference about the material fact, that application of the petitioners was recommended to the Regional Committee for further processing, rejection of the application of petitioners was conveyed vide Annexure P-11 dated 4.4.2012. Thereafter, on the basis of communication dated 9.4.2012 (Annexure P-12) and 18.4.2012 (Annexure P-13), the case was placed before the Standing Appellate Committee, who made its observations on 20.4.2012, which have been reproduced above.
The documents of the petitioners were verified and found correct. It was also observed that now the petitioners have changed the construction as per norms of AICTE, but technically they have not got approval from the Municipal Authority, for which they have moved an CWP No.20710 of 2012 8 application seeking some time to get the plan approved. It is important to note that the Standing Appellate Committee did not reject the application of the petitioners. On the other hand, scrutiny was recommended. On the same day, i.e. 20.4.2012, petitioner-college moved an application vide Annexure P-15, which was duly entertained by the Chairman of the Standing Appellate Committee, directing that letter be placed on record and may be taken as part of the proceedings. Vide this letter dated 20.4.2012 (Annexure P-15), petitioners requested for a time of 20 days, for getting approval of Municipal Authority. This fact has been recorded by the Standing Appellate Committee also, in its proceedings at Annexure P-14.
This request of the petitioners for granting time of 20 days was also not rejected. However, the Re-scrutiny Committee again met on 1.5.2012, that is before expiry of time of 20 days sought by the petitioners and made its observation as reproduced above, to the effect that the plans were resubmitted and the final approval was pending in a few days. Although, this approval came on 10.5.2012 (Annexure P-17) which was at once intimated to the respondents on the same day vide Annexure P-18 yet it seems that respondents did not consider it at all, without disclosing any reason, much less cogent reasons thereof. Having said that, this Court feels no hesitation to conclude that action taken by the respondent authorities was not reasonable.
Thereafter, petitioners moved representation dated 11.5.2012 (Annexure P-19). Rightly considering the case of the petitioners as a genuine one, respondent No.2 recommended the same to respondent No.1 CWP No.20710 of 2012 9 vide his letter dated 17.5.2012. Petitioners also repeated their request on 25.5.2012 (Annexure P-20), making a reference about the recommendatory letter dated 17.5.2012 issued by respondent No.2. However, it seems that respondent No.1 neither considered the request of the petitioners nor the recommendation made by respondent No.2, while passing a non-speaking and cryptic order dated 6.7.2012 (Annexure P-
21). In fact, there is not even a passing reference about the recommendations made by respondent No.2 vide letter dated 17.5.2012, in the impugned communication dated 6.7.2012 (Annexure P-21). It is also pertinent to note here that the reply filed on behalf of respondents Nos. 1 and 2 is conveniently silent in this regard. Again, there is not even a word about the recommendation made by respondent No.2, as to why it was not considered before passing the impugned order dated 6.7.2012. In this view of the matter, the impugned orders passed by respondent authorities cannot be sustained.
Petitioners have taken categoric averments in para 15 of the writ petition, raising the different issues giving complete sequence of events. However, para 15 of the writ petition, including the grounds challenging the impugned orders, have not at all been denied by respondents Nos. 1 and 2, in their written statement. In fact, the reply filed by respondents Nos. 1 and 2 ends at para 13 only, as if they were not supposed to reply to the specific averments taken against them. Even during the course of arguments, learned counsel for the respondents could not give any explanation in this regard.
Further, a bare reading of the impugned communication dated CWP No.20710 of 2012 10 4.4.2012 (Annexure P-11) and 10.5.2012 (Annexure R-1/1) will show that both are verbatim except the date and its subject. There is no difference of even one word. This also shows non-application of mind. Thus, it has come on record that neither the direction issued by the Chairman of the Standing Appellate Committee, vide his endorsement on the application dated 20.4.2012 (Annexure P-15), nor the recommendations made by respondent No.2, vide its letter dated 17.5.2012 in favour of the petitioners, were taken into consideration at any relevant point of time, before passing the impugned communication dated 6.7.2012 (Annexure P-21) and the same is liable to be set aside for this reason as well.
When the case came up for hearing on 24.1.2013, following order was passed by this Court:_ "Learned counsel for the respondents No. 1 and 2 seeks short adjournment to get instructions, as to why the recognition/approval is not being granted to the petitioner, when there is no deficiency in the application submitted by the petitioner and how the order dated 6.7.2012 (Annexure P-21), is justified in law.
On his request, adjourned to 29.1.2013."
During the course of arguments on 29.1.2013, time was again sought on behalf of respondents Nos. 1 and 2 and it was granted to them so as to enable them to reconcile the situation and apprise this Court as to whether the application of the petitioners could be considered for the next Academic Sessions, i.e. 2013-14, because the application was no CWP No.20710 of 2012 11 more suffering from any deficiency. On 29.1.2013, the case was adjourned to 13.2.2013, by passing the following order:-
"It is noted with concern that the impugned order dated 4.4.2012 (Annexure P-11) as well as the appellate order dated 10.5.2012 (Annexure R-1) are verbatim the same, of course, except the date thereon. Further, the order dated 6.7.2012 (Annexure P-21) is also totally non- speaking and cryptic one, in spite of the fact that representation dated 20.4.2012 submitted by the Principal of petitioner-college was duly entertained by the Chairman of Standing Appellate Committee making his specific endorsement thereon.
Faced with the above-said situation, learned counsel for respondents Nos. 1 and 2 seeks a short adjournment to get clear instructions from the respondents as to how the impugned orders passed by them can be reconciled. He shall also get instructions as to whether application of the petitioner which has not been stated to be suffering from any deficiency in view of Annexure P-21 dated 6.7.2012, could be considered for the next academic session 2013-14.
List on 13.2.2013.
A copy of this order, under the signatures of the Court Secretary, be given dasti to the learned counsel for respondent Nos. 1 and 2 for onward transmission to the concerned authorities, for compliance thereof."
Thereafter, during the course of hearing on 13.2.2013, it was CWP No.20710 of 2012 12 felt necessary that official record would be required. Accordingly, Regional Officer-respondent No.2 was directed to come present with the official record, by passing the following order:-
"During the course of hearing, it has transpired that the Chairman of Standing Appellate Committee entertained the application of the petitioners on 20.04.2012, making his endorsement thereon, that it shall be placed oh record and may be taken as part of the proceedings. Whether this request made on behalf of the petitioners was, as a matter of fact, made part of the proceeding or not; whether it was considered or not by the Standing Appellate Committee before issuing its communication/order dated 01.05.2012 (Annexure P16); can be verified only from the record of the case. Further, before issuance of impugned communication dated 06.07.2012, whether the recommendations made by the Regional Officer, vide his communication dated 17.05.2012 were considered by AICTE or not, can also be verified only from the relevant record of AICTE.
The Regional Officer is directed to be present in Court with the official record on the next date of hearing.
List on 18.02.2013."
Learned counsel for the respondents could not address any substantial argument, to support the non-speaking and cryptic order dated 6.7.2012 (Annexure P-21). A perusal of the official record, which was made available to this Court by respondent No.2, further reveals that no CWP No.20710 of 2012 13 heed was paid to the recommendation made by respondent No.2, before passing the impugned order dated 6.7.2012 (Annexure P-21). The relevant note dated 25.6.2012 on the file, made by the consultant reads as under:-
"As SAC has also reported deficiencies the application of the institute was rejected by the competent authority and as seen from the entry on bottom of Note Sheet at p3/n. LOR was issued on 15/05/2012.
The Institute submitted a letter before the SAC wherein, it has assured that they will get the plan approved by the competent authority and submit the same within 20 days. Now RO NWRO has intimate that the approved plan have been submitted by the institute on the 20th day, as promised and has viewed that the matter being complicated the issue may be referred to Appellate Committee to review the entire case on merit.
In view of the position indicated above, the File is submitted for orders please."
On the basis of the above-said note, the final order was passed on 27.6.2012, which reads as under:-
"The LOR (letter of rejection) has already been given. The request cannot be accepted. The process is already over."
The order is non-speaking and cryptic, which cannot be sustained.
Another equally important issue that falls for consideration of CWP No.20710 of 2012 14 this Court is whether an authority, like respondent No.1 in the present case, is also under legal obligation to record reasons, in support of its administrative order. Initially, there was a distinction drawn between an administrative order and quasi-judicial order, in this regard. However, more than five decades ago, the Hon'ble Supreme Court in Harinagar Sugar Mills Ltd vs. Sham Sunder Jhunjhunwala and others, AIR 1961 S.C. 1669, observed that even an administrative order should also be supported with reasons. It was reiterated by the Constitution Bench of the Hon'ble Supreme Court, in Bharat Raja vs. Union of India and others, AIR 1967 S.C. 1606.
The law came to be crystalized in this regard, in A.K.Kraipak and others. Vs. Union of India and others, AIR 1970 S.C. 150, which has been followed thereafter, in a long catena of judgments without any exception. Reiterating the law laid down in A.K. Kraipak's case (supra), the Hon'ble Supreme Court in M/s Kranti Associates Pvt. Ltd. & another Vs. Sh. Masood Ahmed Khan & others, (2010) 9 SCC 496, observed as under:-
"The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 Supreme Court 150."
After making the above-said observations, the Hon'ble Supreme CWP No.20710 of 2012 15 Court recorded its conclusion on this issue, in para 51 of the judgment in M/s Kranti Associates Pvt. Ltd.'s case (supra) and the relevant clauses thereof which apply with full force in the present case, are clauses a, f and l and the same read as under:-
"Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. Reverting back to the facts of the present case, a bare glance at the impugned orders, coupled with the relevant part of the official record reproduced above, no room for doubt is left for arriving at an irresistible conclusion that the respondent authorities proceeded on an erroneous approach, during the decision making process. Thus, the impugned orders have resulted in miscarriage of justice.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of CWP No.20710 of 2012 16 the considered view that the impugned orders cannot be sustained and the same are hereby ordered to be set aside. Respondent No.1 is directed to consider the application of the petitioners, which is now complete in all respects without there being any deficiency, but for the coming Academic Sessions, i.e. 2013-14. The competent authority shall take its final decision in this regard, at an early date by passing an appropriate order, in accordance with law, however, within a period of two months from the date of receipt of a copy of this order.
Resultantly, the instant writ petition stands allowed, however, with no order as to costs.
18.02.2013 (RAMESHWAR SINGH MALIK) mks JUDGE