Gujarat High Court
Parul Arogya Seva Mandal vs All India Council For Technical ... on 24 December, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12574/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12574 of 2013
================================================================
PARUL AROGYA SEVA MANDAL....Petitioner(s)
Versus
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION....Respondent(s)
================================================================
Appearance:
MR JIGAR M PATEL, ADVOCATE for the Petitioner(s) No. 1
MR VILAS G GOSWAMY, ADVOCATE for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/12/2014
ORAL ORDER
Leave to amend the petition so as to add (i) the State Government through Secretary, Education Department, Gandhinagar and (ii) Gujarat Technological University through its Registrar, Ahmedabad as party respondent Nos.2 and 3.
The amendment to be carried out forthwith. On advance service of copy of the petition, Mr. DM Devnani, learned AGP, has appeared for the respondent State and Mr. Dipen Desai, learned advocate, has appeared for the respondent Gujarat Technological University.
2. Heard Mr. Patel, learned advocate for the Page 1 of 19 C/SCA/12574/2013 ORDER petitioner, and Mr.Goswamy, learned advocate for the respondent AICTE, Mr. Devnani, learned AGP for the respondent State, and Mr. Desai, learned advocate for the respondent Gujarat Technological University. Rule. With consent of learned advocates for respondents including newly added respondents viz. the Education Department and the Gujarat Technological University, the matter is taken up for hearing and final orders today.
3. In present petition, the petitioner has prayed inter alia that:-
"6A) This Hon'ble Court may be pleased to issue a writ of or in the nature of, Mandamus or any other appropriate writ, order or direction commanding the respondent to accord forthwith an approval to the application submitted by the petitioner for closure of the Parul Institute of Hotel Management & Catering Technology;
B) Pending admission, disposal and final hearing of the present petition, this Hon'ble Court may be pleased to direct the respondent to process the application submitted by the petitioner before it for closure of Parul Institute of Hotel Management & Catering Technology forthwith;"
4. On the premise that the petitioner is not financially strong to continue to run the institute, Page 2 of 19 C/SCA/12574/2013 ORDER i.e. Parul Institute of Hotel Management & Catering Technology, the trust passed a resolution dated 8.8.2010 to close the institute.
5. The petitioner, pursuant to the said resolution dated 8.8.2010, initiated necessary steps and formalities to close the institute.
6. For the said purpose, the petitioner institute requested for No Objection Certificate from the Gujarat Technological University. Similar request was made by the petitioner to the Education Department.
7. In pursuance of the request made by the petitioner, the respondent university issued No Objection Certificate dated 8.2.2011 and declared that the university has no objection if the petitioner institute is granted permission as prayed for by the petitioner. Similar certificate came to be issued by the Education Department vide its communication dated 13.10.2010.
8. The remarks put in the certificate by the Page 3 of 19 C/SCA/12574/2013 ORDER respondent university reads thus:-
"3. Re-arrangement of current students / students who were admitted in these courses in the previous years and who are trailing due to failures, etc. in the following table.
Course Number of Number of students Details about re- requested for current admitted in these arrangements of closure. students. course for the new students.
academic year.
Diploma in Hotel 77 - No-rearrange is
Management & possible since this
Catering Technology. program does not exist.
Institute has to run the
course till last student
passes the course.
Likewise, the remarks mentioned by the
respondent education department in the certificate issued by it reads thus:-
"1. re-arrangement of current students who were admitted in these courses in the previous years and who are trailing due to failures, etc. in the following table.
Course Number of Number of students Details about re- requested for current admitted in these arrangements of closure. students. course in the students.
previous years and who are trailing due to failrue.
Diploma in Hotel 77 - -
Management &
Catering Technology.
9. Thereafter, the petitioner submitted necessary application, alongwith the said certificates, to the respondent AICTE.
10. Having regard to the remarks in the Page 4 of 19 C/SCA/12574/2013 ORDER certificates, the respondent AICTE has, raised objection on the grounds that, (a) the application appears to be an application seeking permission to "close the course" and not to "close the institute"; and (b) the petitioner institute appears to have admitted 77 students and so long as the said students complete their course and pass out from the institute, permission to close down the course cannot be granted. In this context, the respondent AICTE has filed affidavit dated 10.2.2014 wherein it is averred and claimed that:-
"4. I say that the petitioner has produced letter dated 05-12/01/ 2011 regarding the processing application for closure of Institute and list of relevant documents required for the closer of institute {Page-16), in which condition No, 3 is to the effect that "No objection certificate from affiliating University / board with clear mention about provision / alternative arrangements made to take care of education of existing students studying in the institute in the format prescribed on the web portal." I say that the Gujarat Technological University has issued NOC dated 08/ 02/ 2011 (Page-18), which shows that the current students studying in the instate are 77 and with a condition that "No-rearrange is possible since this Page 5 of 19 C/SCA/12574/2013 ORDER program does not exist Institute has to run the course till last student passes the course."
5. I say that it is clear from the NOC granted by the Gujarat Technological University that at the time of making application the students are studying in the petitioner institute. I say that the petitioner institute has submitted an application dated 28/03/2011 for closure of course / programme (Page-21) as per Chapter -2 of (Approval Process Handbook), I say that as it appears from the report at (page-27) to the effect that the petitioner institute has applied for closure of course.
6. I say that the petitioner institute has passed the resolution to closure of the institute (Page-17), but submitted an application for closure of course to the answering respondent under Chapter-2 of APH. It is submitted that in the petition the petitioner themselves have stated that they have sought permission for closure of college, but in fact they have applied for closure of course under Chapter-2 of APH and not for the closure of institution under Chapter-1 of APH. Therefore the averments and allegations made in the memo of the petition are not correct and true.
7. I say that as per the rules mentioned in APH, if any institution seeks permission to close down the institution under Chapter - 1 of APH, then in that event the FDR amount is requires to be refunded, but in the present case the petitioner institute has sought permission to closure of course under Chapter - 2 of APH, therefore the permission of closure of course has been granted by the respondents herein. I say that if Page 6 of 19 C/SCA/12574/2013 ORDER the petitioner institute want their FDR amount to be return then in that event they will have to make an application under Chapter - 1 of APH 2013-14 along with requisite documents and after following proper procedure as mentioned in of APH 2013-14 the FDR amount can be released only after "Closure of Institute" is approved by appropriate authority of answering respondents.
8. I say that in pursuance of the application made by the petitioner institution for closure of course / programme, the scrutiny held on 25/03/2012, but the same application was not recommended for closure as students were still studying and they need to be shifted. Thereafter the Regional committee has met and after considering the report of scrutiny committee the proposal of the petitioner institute was not approved as students were studying in the institute.
9. I say that in view of facts mentioned herein above the prayers made in the present petition cannot be granted in the interest of justice and the petitioner may kindly be directed to make an fresh application to the answering if respondents as per close 3.7 of APH 2013-14 and answering respondents will consider the same application in accordance with law, in that view also the present petition requires to be dismiss in the interest of justice.
10. I say that the decision taken by the AICTE is just and proper and the petition is requires to be rejected in the interest of justice. It is submitted that the petitioner could have moved before AICTE for clarification instead of filling the present petition. It is submitted that the petition was affirmed on 30/07/2013 and the notice was issued by this Hon'ble Page 7 of 19 C/SCA/12574/2013 ORDER court on 12/08/2013, if the case of the petitioner so genuine then they could have filed petition urgently and requested the Hon'ble court for urgent order, but with a view to take undue advantage of their wrong the present petition is being filed belatedly. I say that once any decision on the proposal has been taken by the AICTE after considering all the reports, then the same proposal cannot review by its own, therefore the petitioner will have to make a fresh application along with requisite fees and if AICTE will find all things in order as per rules then the appropriate orders will be passed for next academic year. In view of that and the facts and circumstances mentioned herein above the petition is requires to be rejected in the interest of justice."
11. At the time of hearing, Mr. Patel, learned advocate for the petitioner institute, on instructions received by him from the petitioner, submitted that actually the petitioner institute had taken decision to "close down the institute" and not to "close the course". He also clarified that even the resolution makes reference of "closure of the institute" and not "closure of the course". In response to the objections by learned advocate for the respondent AICTE to the effect that even in its application, the petitioner prayed for permission to "close the course/programme", Mr. Page 8 of 19 C/SCA/12574/2013 ORDER Patel, learned advocate for the petitioner, submitted that the petitioner will submit a clarificatory letter and request / application to the respondent AICTE clarifying that the application is made for permission to close down the institute and it may be treated as such i.e. application for "closure of the institute" and that the petitioner will also seek permission to amend the application accordingly i.e. to close down the institute and not for closure of the course.
Mr. Patel, learned advocate for the petitioner, on instructions from petitioner further submitted that all the students have passed out from the petitioner institute and though at the time when the petitioner filed the application there might some students in the college and might be prosecuting their study there, however, as of now there are no students continuing their studies with the petitioner institute. So as to support the said submission, learned advocate for the petitioner filed further affidavit dated 23.12.2014 wherein it is averred and stated and declared that:-
"1. I say that all 77 students, shown in No Objection Page 9 of 19 C/SCA/12574/2013 ORDER Certificates granted by Gujarat Technological University and the State of Gujarat (Page Nos.18 and 19) as prosecuting their studies, passed out from Parul Institute of Hotel Management & Catering Technology in the academic year 2011-2012. At present, not a single student is studying in Parul Institute of Hotel Management & Catering Technology. I further say that the last academic year in which the students were enrolled by Parul Institute of Hotel Management & Catering Technology was academic year 2009-2010. Thereafter, no students were admitted by Parul Institute of Hotel Management. All students admitted by Parul Institute of Hotel Management & Catering Technology in academic year 2009-2010 passed out in academic year 2011-2012."
In response to the submissions by learned advocate for the petitioner, Mr. Goswami, learned advocate for the respondent AICTE opposed the petitioner's submissions and contended that the petitioner's application can not be considered and granted since (a) the application seeks permission to close the course; and (b) on the date of application students were still studying in the college. According to the learned advocate for the respondent AICTE such application cannot be considered and petitioner can not now amend the petition.
12. In view of the said objection by respondent AICTE and having regard to the fact that in the Page 10 of 19 C/SCA/12574/2013 ORDER application submitted to respondent AICTE, the petitioner though inadvertently and by mistake seems to have mentioned "closure of the course / programme"
instead of "closure of the institute", learned advocate for the petitioner submitted that there are no students in the college and the college is virtually (i.e. in absence of any students) closed and since the application is yet not finally disposed of, the petitioner may be permitted to amend the application.
12.1 So far as the objections raised by the respondent AICTE are concerned, it is relevant to mention that the learned advocate for the respondent AICTE submitted that the application submitted by the petitioner to respondent AICTE is an application with request for permission for closure of the course / programme and that therefore, the said application cannot be permitted to be amended and it cannot be considered as application for permission to close the institute and that there is no material before the AICTE to show that as of now there are no students studying in the college. He submitted that the Page 11 of 19 C/SCA/12574/2013 ORDER petitioner should file fresh application and the fees paid with present application cannot be and will not be returned.
12.2 In this context, it is relevant to note that,
(a) though the petitioner submitted the application as back as in 2010-2011, until now, the said application has not been finally rejected by the respondent AICTE by recording reasons for such rejection,
(b) any order finally disposing/rejecting the application has not been passed until now,
(c) the application is, undisputedly, still pending before the respondent AICTE,
(d) the relevant documents, more particularly the resolution passed by the petitioner trust spell out that the petitioner resolved to close the institute.
(e) it is true that in the application submitted to respondent AICTE, the petitioner appears to have mentioned "closure of the course/programme", however, as submitted by learned advocate for the petitioner, t seems to be an inadvertent error, and
(f) that the resolution clearly speaks about closure Page 12 of 19 C/SCA/12574/2013 ORDER of the institute, and
(g) even in the "No Objection Certificate" issued by the respondent Education Department, it is mentioned that ".... have resolved to close Parul Institute of Hotel Management and Catering Technology...".
12.3 Thus, when the application is yet not finally disposed of and is still pending with the respondent AICTE and when the resolution passed by the petitioner trust gives out that the petitioner trust resolved to close the institute and not merely the course / programme, then, there does not appear to be any justification for refusing the petitioner's request to make necessary amendment in the application.
12.4 On this count, it is also relevant to mention that it was inquired from the learned advocate for the respondent AICTE as to whether there is any rule / provision in the Act or in the duly framed regulations which does not permit and prohibits any correction or amendment in the application, however, in reply to the quarry, the learned advocate for the Page 13 of 19 C/SCA/12574/2013 ORDER respondent AICTE could not point out any provision.
It is not the case of the respondent AICTE that any provision or any regulation prohibits and does not permit an applicant to make any correction or amendment in the application, though the application may be pending and final order thereon is not passed. 12.5 In this view of the matter and more particularly when the application is not finally disposed of, there does not appear to be any justification in the objection by respondent AICTE and/or in its stand to not permit the petitioner to make application seeking permission to amend the pending application and to compel the petitioner - that too in absence of any rule - to submit another / fresh application to also pay fees and forgo the fees paid earlier. 12.6 Of course, if there is any difference in the fees to be paid in respect of application for closure of institute than what is payable in respect of application for closure of course / programme, then, obviously, it would be obligatory for the petitioner to make good and pay such difference towards fees. Page 14 of 19 C/SCA/12574/2013 ORDER
Likewise, if any further or additional procedure is required to be followed and/or any additional formalities are required to be completed in respect of request for permission to closer the institute, then, the petitioner would be obliged to complete such formalities and comply the requirements which an institute may have to fulfill and comply for permission to close the institute.
However, in absence of any provision prohibiting modification or amendment in the application and that too for correcting bonafide inadvertent error in mentioning the subject of the application, it would not be just or proper for the respondent AICTE to refuse such request.
12.7 In this view of the matter, the Court is of the view that present petition can be disposed of at this stage with following observations, clarifications and directions:-
[a] The petitioner may submit a clarificatory request / application informing the respondent AICTE that the application submitted by it is for Page 15 of 19 C/SCA/12574/2013 ORDER permission to close down the institute and not for closure of the course.
[b] It would also be open for the petitioner to submit application / request seeking permission to appropriately correct / modify and amend the application submitted by it.
[c] If the provisions under the Act and the applicable regulations require that higher rate of fees should be paid in respect of application seeking permission for closure of the institute, then, the petitioner shall be obliged to pay such difference towards fees and it shall have to pay such fees within the time limit which may be prescribed by the respondent AICTE.
[d] Likewise, if any other or additional procedure is required to be followed and/or any other formalities are required to be completed, then, the petitioner shall have to follow such procedure and fulfill the requirements, which may be necessary for making the application eligible for consideration. Page 16 of 19 C/SCA/12574/2013 ORDER [e] After payment of requisite fees and after completing all formalities, the petitioner may request the respondent AICTE to correct the inadvertent error and to rectify the mistake by deleting the words "course/programme" by substituting the said words by word "institute".
[f] When such application is submitted and after the petitioner fulfills the requirement regarding payment of fees and after it completes the prescribed procedure and fulfills all requirements, the respondent AICTE will permit the petitioner to amend the application so as to make the application as application for permission to close the institute. [g] After permitting such amendment, the respondent AICTE will consider the application as application seeking permission to close the institute and process the said application accordingly and in accordance with as well as subject to applicable rules and regulations and in accordance with law. Page 17 of 19 C/SCA/12574/2013 ORDER [h] It will also be open to the petitioner to make appropriate application / request to the respondent Gujarat Technological University as well as respondent Education Department to issue fresh or modified No Objection Certificate/s declaring exact fact situation with regard to the students i.e. as to whether any students are admitted by the petitioner institute and/or any students are still prosecuting studies with the petitioner institute after having been admitted earlier or all students have completed their course and have passed out and there are no students prosecuting studies with the petitioner institute.
[i] After the respondent Gujarat Technological University and the respondent Education Department receive such application, the said two respondents will make necessary inquiry and upon being satisfied, issue appropriate fresh or modified No Objection Certificate/s. After such No Objection Certificate is received, the petitioner may forward the same to the respondent AICTE, who in turn will take into account the said certificate.
Page 18 of 19 C/SCA/12574/2013 ORDER [j] After receipt of such clarificatory certificate from the said two respondents and on satisfactorily completion of other formalities in accordance with rules, the respondent AICTE will reconsider the petitioner's application and pass appropriate fresh order in accordance with rules.
Such formalities may be completed by the respondent AICTE as expeditiously as possible and within six weeks from the receipt of such clarificatory certificates from the respondents. 12.8 It is clarified that in case of need for any further clarification or any modification in the order, the petitioner or respondents may make appropriate applications.
With aforesaid observations, clarifications and directions, present petition stands disposed of. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) kdc Page 19 of 19