Delhi High Court
Acn College Of Pharmacy vs All India Council For Technical ... on 17 July, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th July, 2015
+ W.P.(C) 5943/2015
INSTITUTE OF INTERNATIONAL EXCELLENCE ..... Petitioner
Through: Mr. Sanjay Sharawat and Mr. Ratish
Kumar, Advs.
Versus
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION ......Respondent
Through: Mr. Anil Soni and Mr. Naginder
Benipal, Advs. for AICTE.
AND
+ W.P.(C) 6138/2015
ACN COLLEGE OF PHARMACY ..... Petitioner
Through: Mr. Mayank Manish, Mr.
Chandrashekhar Singh and Mr. Ravi
Kant, Advs.
Versus
ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION ..... Respondent
Through: Mr. Anil Soni and Mr. Naginder
Benipal, Advs. for AICTE..
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner institutions in both the petitions applied to the
respondent All India Council for Technical Education (AICTE), within the
prescribed time, for approval for imparting education in the course of
W.P.(C) Nos.5943/2015 & 6138/2015 Page 1 of 17
Diploma in Pharmacy, with effect from the academic year 2015-16 but the
application of both the petitioners was rejected by the Scrutiny Committee of
the respondent AICTE on 7th April, 2015. In accordance with the Handbook
of Procedure of the respondent AICTE, both petitioners appeared before the
Standing Appellate Committee (SAC) of the AICTE on 13th April, 2015
which ordered the institutions of the petitioners to be visited by the Expert
Visiting Committee. The Expert Visiting Committee, pursuant to visit,
pointed out deficiencies in the institution of each of the petitioners and on
the basis thereof the SAC of the respondent AICTE also, vide orders dated
30th April, 2015 rejected the application of each of the petitioners.
2. Both petitioners preferred writ petitions (W.P.(C) No.4884/2015 and
W.P.(C) No.4707/2015 respectively) and vide orders dated 18th May, 2015
in each of the said petitions, the matter was remanded to the SAC of the
respondent AICTE and it was further observed that in the event of the SAC
being satisfied with the explanations offered by the petitioners, the
applications of the petitioners for commencing imparting education in the
said course would be accepted. Opportunity was also given to each of the
petitioners to appear before the SAC and the SAC of the respondent AICTE
W.P.(C) Nos.5943/2015 & 6138/2015 Page 2 of 17
was directed to pass speaking order, if again rejecting the application of the
petitioners.
3. The SAC of the respondent AICTE vide order dated 29th May, 2015 in
W.P.(C) No.6138/2015 and vide order dated 28th May, 2015 in W.P.(C)
No.5943/2015 has now held that though all the deficiencies pointed out have
been cured, but since the last date stipulated of 30th April, 2015 for granting
approval was over, permission cannot be granted for the academic year
2015-16. Accordingly, the applications have again been rejected with
liberty to each of the petitioners to apply for the next academic year if so
desire.
4. Notice of W.P.(C) No.5943/2015 was issued on 9th June, 2015 and the
respondent AICTE has filed a counter affidavit pleading, i) that the Supreme
Court in Parshvanath Charitable Trust Vs. All India Council for Technical
Education (2013) 3 SCC 385 has laid down the time schedule and in
accordance therewith, AICTE could not have granted approval to the
petitioner for the year 2015-16; ii) that if approval is given at this late stage,
there may be cascading effect thereof in taking university approval /
application which was to be done by 15th May and further schedule of
W.P.(C) Nos.5943/2015 & 6138/2015 Page 3 of 17
conduct of entrance examination and counseling / admission for allotment of
seats etc.; iii) that admittedly deficiencies existed in the petitioner
institutions and some of the said deficiencies existed even till 18th May, 2015
as is evident from the order of the said date in W.P.(C) No.4707/2015; iv)
that though the Supreme Court vide judgment dated 16 th February, 2015 in
W.P.(C) No.1034/2014 titled Mahatma Education Society's Pillai's
Institute of Information Technology, Engineering, Media Studies &
Research Vs. All India Council for Technical Education had directed
AICTE to grant approval for the academic year 2014-15 beyond the
stipulated date but the same was done in exercise of powers under Article
142 of the Constitution of India; v) that the fact that the Supreme Court
invoked its power under Article 142 is indicative of Supreme Court
acknowledging that the time schedule is solemn and strict adherence thereto
required.
5. W.P.(C) No.6138/2015 came up first before this Court on 30 th June,
2015 when the counsel for the petitioner therein, faced with the query as to
what could be said to be wrong with the order of the SAC - though finding
the petitioner therein to have removed all the deficiencies and on account of
which earlier the application of the petitioner was rejected, having refused
W.P.(C) Nos.5943/2015 & 6138/2015 Page 4 of 17
approval for the reason that the deadline laid down by the Supreme Court for
grant of approval had expired. It was asked, how the respondent AICTE
could be expected to notwithstanding the date fixed by the Supreme Court
for grant of approval having passed, grant approval. On the request for
adjournment by the counsel for the petitioner to show a judgment of a
Single Judge of the High Court of Kerala holding that even the High Court
could relax the said time schedule, the matter was adjourned to 2 nd July,
2015 when W.P.(C) No.5943/2015 was also listed. The counsel for
respondent AICTE was also asked to obtain instructions whether any appeal
/ SLP had been preferred against the said judgment of the Kerala High
Court.
6. On 2nd July, 2015, the counsels for the petitioners referred to
Irinjalakuda Diocesan Education Trust Vs. All India Council for
Technical Education MANU/KE/0781/2015. Myself, having in the
interregnum come across the order dated 12th June, 2015 of the Division
Bench (Vacation) of this court in LPA No.397/2015 titled Jamia Hamdard
(Deemed University) Vs. Union of India observing that in the event of a
party aggrieved by a refusal of permission by the Central Government
successfully challenging such refusal in a writ petition, the date on which
W.P.(C) Nos.5943/2015 & 6138/2015 Page 5 of 17
such party should be held to have been granted permission would relate back
to the last date fixed in the schedule - subject however to adherence to the
other time schedule as regards admission of students, attention thereto was
also invited of the counsel for the parties and arguments were heard and
judgment reserved.
7. It is not in dispute that the Supreme Court in Parshvanath Charitable
Trust (supra) has provided for the following schedule:
Event Schedule
th
"Last date of granting or refusing 10 April
approval by AICTE
Late date of granting or refusing 15th May
approval by University / State
Government.
Conduct of entrance examination In the month of May
(AIEEE / State CET / Management
quota exams, etc.)
Declaration of result of qualifying On or before 5th June
examination (12th exam or similar) and
entrance examination.
1st round of conselling / admission for To be completed on or before 30th
allotment of seats. June.
2nd round of counseling for allotment To be completed on or before 10th
of seats July
Last round of counseling for allotment To be completed on or before 20th
of seats July
Last date for admitting candidates in 30th July
seats other than allotted above However, any number of rounds
for counseling could be conducted
depending on local requirements,
but all the grounds shall be
completed before 30th July.
Commencement of academic session 1st August
W.P.(C) Nos.5943/2015 & 6138/2015 Page 6 of 17
Last date up to which students can be 15th August"
admitted against vacancies arising due
to any reason (no student should be
admitted in any institution after the
last date under any quota)
and ordered that the same shall be strictly adhered to by all the authorities
concerned including AICTE, University, State Government and any other
authority directly or indirectly connected with the grant of approval and
admission and that no person or authority shall have power or jurisdiction to
vary the schedule. In the light thereof, no error can be found with the orders
impugned of the respondent AICTE, of though holding the petitioners to,
upon removal of the deficiencies earlier pointed out, having become eligible
for approval, being not entitled thereto by that date.
8. The only question which thus arises is, whether this Court in exercise
of powers under Article 226 (and which the Supreme Court in B.C.
Chaturvedi Vs. Union of India (1995) 6 SCC 749, State of West Bengal Vs.
The Committee for Protection of Democratic Rights, West Bengal (2010) 3
SCC 571 and Asha Sharma Vs. Chandigarh Administration (2011) 10 SCC
86) has held are as wide as the powers of the Supreme Court under Article
142) should direct AICTE to grant approval.
W.P.(C) Nos.5943/2015 & 6138/2015 Page 7 of 17
9. I had in this context enquired from the counsel for the petitioners that
even if such a direction was to be issued to the respondent AICTE, what else
remained to be done by the petitioners before they could be said to have
become entitled to commence imparting education in the current academic
session. It was in this context enquired whether affiliations from the
University or State Board as may be applicable had been obtained.
10. The counsels for the petitioners though stated that affiliation from the
University / State Board had not been received till now and further informed
that the University / State Board does not grant affiliation without the
respondent AICTE approval, however stated that obtaining the said
affiliation from the University would take not more than 3/4 days after the
grant of approval by the respondent AICTE. They further stated that they
will be able to still join in the counseling / admission which is to go on till
20th July, 2015 and would be able to admit the students, the last date whereof
is 30th July, 2015 and would be able to commence the academic session on
1st August, 2015.
11. I however further enquired from the counsels as to how they expect
the University / State Board, even if willing to grant affiliation, to so grant
W.P.(C) Nos.5943/2015 & 6138/2015 Page 8 of 17
affiliation, the last date for grant of which stipulated in the schedule
aforesaid was of 15th May, 2015. It was enquired whether not the University
/ State Board would also be bound by the restrain aforesaid by the Supreme
Court not to grant the approval after the stipulated date of 15st May, 2015.
12. The counsels fairly agreed that they may have to approach the High
Court again vis-à-vis the University.
13. As far as Mahatma Education Society's Pillai's Institute of
Information Technology, Engineering, Media Studies & Research (supra)
is concerned, the applicant institute therein had been imparting education for
the previous 15 years and was denied approval for the year 2014-15 owing
to not meeting with the requirement of land as per All India Council for
Technical Education (Grant of Approvals for Technical Institutions)
Regulations, 2012. It was for the reason of finding that approximately 550
students were pursuing their studies and that because of non-grant of
approval their academic year 2014-15 would be ruined and they would be
put to great inconvenience and difficulties for no fault on their part, that the
Supreme Court invoked its power under Article 142 of the Constitution of
India and directed grant of approval.
W.P.(C) Nos.5943/2015 & 6138/2015 Page 9 of 17
14. As far as the judgment aforesaid of the Single Judge of the High Court
of Kerala is concerned, the finding therein is of the SAC having not
considered the report of the Expert Visiting Committee in its proper
perspective and the rejection by the respondent AICTE of approval being
thus not proper and which was set aside. It was as a corollary to the said
finding, that even after the stipulated last date had expired, on 11th June,
2015 direction was issued for consideration of the matter afresh by the SAC,
expeditiously, since the last date for commencing of the academic session
was 1st August.
15. The counsel for the respondent AICTE informed that an SLP had been
preferred to the Supreme Court against the aforesaid judgment of the Kerala
High Court though had not been listed till then.
16. Similarly, as far as the order dated 12th June, 2015 of this Court in
Jamia Hamdard (Deemed University) supra is concerned, the same also
proceeds on the premise of the Central Government having wrongfully
refused approval and which wrong had to be set right by the High Court on
its jurisdiction under Article 226 being invoked. It is for this reason that it
was held that the order of the High Court in exercise of powers of judicial
W.P.(C) Nos.5943/2015 & 6138/2015 Page 10 of 17
review over the decision of the Central Government, reversing the decision
of the Central Government would relate back to the date of the order when
the approval was wrongly refused or the last date prescribed for grant of
approval.
17. Neither of the petitioners here, can be said to be in the same position
as the petitioner in Mahatma Education Society's Pillai Institute of
Information Technology, Engineering, Media Studies & Research (supra)
for it to be said that a case for invoking power under Article 226 is made out.
The reason which prevailed with the Supreme Court was of Institute in that
case being 15 years old, approval being denied owing to change in
Regulations and the suffering which 550 students already admitted were
likely to suffer therefrom for no fault of theirs. Here, in both matters, we are
concerned with applications for establishing new Institutes and no students
are involved. So the said judgment / order of the Supreme Court has no
application to the facts of these cases.
18. Considered in the light of Irinjalakuda Diocesan Education Trust
and Jamia Hamdard supra also, the petitioner in W.P.(C) No.6138/2015 has
not placed before us any material on the basis of which we can conclude that
W.P.(C) Nos.5943/2015 & 6138/2015 Page 11 of 17
the denial of approval to the petitioner on 30 th April, 2015 was wrongful and
owing to which the fresh decision dated 29th May, 2015 impugned in this
petition should relate back to 30th April, 2015 for it to be said that the
petitioner on the stipulated date was entitled to approval which had been
wrongfully refused by the respondent AICTE. All that the petitioner has
placed before us is the copy of the writ petition earlier filed and the order
dated 18th May, 2015 therein besides of course the impugned decision dated
29th May, 2015 and its related documents. The copy of the writ petition
earlier filed is also not accompanied with the annexures thereto. I am thus
not in a position to know on what grounds the Scrutiny Committee had
rejected the application on 7th April, 2015 and on what ground the SAC had
rejected the application on 30th April, 2015. Though undoubtedly vide order
dated 18th May, 2015 in the earlier writ petition the order dated 30th April,
2015 was set aside but on the basis of the documents shown to the Court and
which were not before the SAC. It was for this reason only that the matter
was remanded to the SAC for consideration afresh in accordance with the
said documents. The SAC in its order dated 29th May, 2015 has noted that
the representative of the petitioners who had earlier appeared before it could
not even explain properly the enquiries made with respect to the land and in
W.P.(C) Nos.5943/2015 & 6138/2015 Page 12 of 17
the hearing pursuant to the order dated 18th May, 2015 (supra) fresh
documents had been placed before it to explain the queries which had been
earlier put and which had remained unexplained and on the basis of which
fresh explanations the SAC was satisfied of the petitioner institute having
fulfilled all the requirements. It would thus be seen that no fault in rejecting
the application for approval on 30th April, 2015 can be attributed to the SAC.
19. As far as W.P.(C) No.5943/2015 is concerned, though the petitioner
therein has filed a copy of the order dated 30th April, 2015 therein but the
order dated 18th May, 2015 in the earlier writ petition filed by the said
petitioner is itself on the basis of the undertakings given by the petitioner to
make up the deficiencies on account of which approval was rejected on 30 th
April, 2015. The impugned order dated 29 th May, 2015 therein also records
that the deficiencies earlier found had been made up after 30th April, 2015.
It is thus not as if any error was found with the earlier order dated 30th April,
2015 rejecting the approval. It cannot thus be said in this case also that the
denial of approval on 30th April, 2015 was wrongful.
20. An applicant institution, before making an application for approval, is
required to fulfill all the pre-requites and knowing fully the said pre-
W.P.(C) Nos.5943/2015 & 6138/2015 Page 13 of 17
requisites, should during the process of scrutiny and hearings before the
SAC be in a position to establish so and cannot be heard to contend that the
deficiencies remaining would be fulfilled by the dates stipulated of
commencing of the academic session.
21. If the applicant institutions have any grievance with the rule requiring
them to be in a state of readiness on the date of making of the application
even though the date for commencement of the academic session may be
several months away and the same working to their prejudice by requiring
them to incur recurring costs of retaining the infrastructure, faculty members
etc., the remedy thereagainst is to challenge the said rule. The remedy is not
in contending that because they have remedied the defence, though after the
stipulated date but before the date stipulated for commencement of academic
session, the rule should be bent.
22. The Courts often, in their desire to make education available to the
vast population of the country, allow the institutes to make up the
deficiencies even after the date of application, in contravention of the rules.
However the same, it is being increasingly found, has led to the institutions
making it a habit rather than an exception. It cannot be lost sight of that the
W.P.(C) Nos.5943/2015 & 6138/2015 Page 14 of 17
time with the authorities such as the AICTE, after the receipt of applications
for decision thereon, is limited and considering the large number of
applications such authorities are hard pressed for time. All this is resulting
in a number of institutions though half baked in infrastructure and pre-
requisites, obtaining approval for imparting education and churning out
students with half baked degrees as been noticed by the Supreme Court also
in Manohar Lal Sharma Vs. Medical Council of India (2013) 10 SCC 60.
23. I thus feel that the Courts need to maintain a discipline and only if
find a gross wrong having been committed by the authority in rejecting the
application for approval when approval ought to have been granted, should
they intervene even after the last date for grant of approval has passed.
24. The petitioners herein have failed to make out any such case. This,
coupled with the fact that the petitioners do not even have a university
affiliation and for which they will have to again litigate, I am not inclined to
interfere with the orders impugned of though finding the petitioners to have
after the stipulated date removed all the deficiencies being still not entitled
to the approval.
W.P.(C) Nos.5943/2015 & 6138/2015 Page 15 of 17
25. The Supreme Court, in Maa Vaishno Devi Mahila Mahavidyalaya
Vs. State of Uttar Pradesh (2013) 2 SCC 617 has held that adherence to the
schedule is the essence of granting admission in a fair and transparent
manner as well as to maintain the standards of education. It was further held
that the purpose of providing a time schedule is to ensure that all concerned
authorities act within the stipulated time and that a schedule on the one hand
places an obligation upon the authorities to act according to the schedule, it
on the other hand provides complete clarity to other stakeholders as to when
their application would either be accepted and / or rejected and what will be
the time duration for it to be processed at different quarters. It was yet
further held that a schedule gives clear understanding to the students for
whose benefit the entire process is set up as to when they are expected to
take admission to different colleges in order of merit obtained by them or for
the purpose of subject and college preference. The Supreme Court earlier
also in National Council for Teacher Education Vs Shri Shyam Shiksha
Prashikshan Sansthan (2011) 3 SCC 238 held that an institution is not
entitled to recognition until it fulfills the conditions and further directed that
no institution be granted recognition unless it fulfills the requirements and
the time schedule fixed by the Regional Committees.
W.P.(C) Nos.5943/2015 & 6138/2015 Page 16 of 17
26. Directing the respondent AICTE to now grant approval to the
petitioners and presuming that the petitioners get university affiliation also,
would upset the entire admission process already underway and all of which
cannot be permitted, especially when the petitioners have failed to establish
that the denial of approval on the stipulated date was wrongful.
The petitions are accordingly dismissed. However no costs.
RAJIV SAHAI ENDLAW, J.
JULY 17, 2015 „gsr‟ W.P.(C) Nos.5943/2015 & 6138/2015 Page 17 of 17