Allowed

Vishal Shikshan Prasarak Mandal, Dhule v. the State of Maharashtra and Others

Bombay HC12 Oct 2015WP/5805/2015

Case brief

AI extract

What is this about?

Petitioner public trust requested direction to open a college under a valid five-year perspective plan approved for 2012-2017. Court directed State to get plan sanctioned by Council and consider petitioner's proposal for 2016-17 admissions.

What did the court decide?

Directs State to ensure perspective plan is sanctioned by State Council for Higher Education within eight weeks and consider petitioner's proposal for academic year 2016-17.

Vishal Shikshan Prasarak Mandal, Dhule Vs the State… — Education and Admissions | Bombay HC (2015)

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WP No. 5805/2015

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.5805 OF 2015

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Vishal Shkishan Prasarak Mandal
Dhule, Plot No. 63, Gopal Nagar,
Jamnagiri Road, Dhule,
District Dhule, through its
President – Arun s/o Bhila Patil,
Age: 70 Yrs., occu. Social work
R/o Plot No. 63, Gopal Nagar,
Jamnagiri Road, Dhule,
District Dhule.

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  PETITIONER

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VERSUS

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1)The State of Maharashtra
Through the Secretary for
Higher and Technical
Education Department,
Mantralaya, Mumbai.

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2) The Joint Director, Higher and Technical Education Department, Jalgaon Division, Jalgaon.

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3) The North Maharashtra University P.B.No. 80, Umavi Nagar, Jalgaon, District Jalgaon Through its Registrar RESPONDENTS

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*****

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Mr.VD Hon, Sr.Counsel for Petitioner;
Mr.VJ Dixit, Sr.Counsel for Respondent Nos.1 & 2;
Mr.AB Girase, Advocate For Respondent No.3.

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CORAM: R.M.BORDE &
P.R.BORA,JJ.

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DATE :12th October,2015.

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ORAL JUDGMENT (PER:R.M.BORDE,J.)

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1)Heard. Rule. Rule made returnable

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2 WP No. 5805/2015

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forthwith. With the consent of learned Counsel for
the parties, the petition is taken up for final
disposal at admission stage.

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2)The petitioner is a public trust, duly

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registered under the provisions of the Maharashtra
Public Trusts Act and is also registered as a
society, under the Societies Registration Act. The
petitioner is praying for issuance of directions to
Respondent No. 1 – State Government and its
authorities to issue a letter of approval to the
petitioner/institution for opening of Arts, Commerce
and Science college at Dhule for the academic year
20152016 and to permit the petitioner to admit the
students in the college. The petitioner contends that
North Maharashtra University, Jalgaon has prepared a
perspective Plan in accordance with the provisions of
Section 82(1) of the Maharashtra Universities Act,

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1994, for ensuring equitable distribution of the
facilities for Higher Education having due regard to
the needs of the unserved and underdeveloped areas
within the jurisdiction of the university.

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3 WP No. 5805/2015

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formulation/preparation of the perspective plan by

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the university, an application was tendered by the
petitioner/institution for opening a new college of
Arts, Commerce and Science at Dhule. The perspective

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plan prepared by the university prescribes two Arts,
Commerce and Science Colleges at Dhule proper and in
consonance with the perspective plan, according to

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the petitioner, a proposal was submitted to the
university for opening a new college during academic
year 20132014. The petitioner submits that similar
proposals were tendered by the petitioner institution
for the academic years 20142015 and 20152016. Since
the proposals were not considered by the State

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authorities, the petitioner had approached this court
by presenting writ petition bearing WP No.6969/2013
and another Writ Petition No.5849/2014, requesting

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forissuanceofdirectionstothe

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respondent/authorities therein to accord permission
in favour of the petitioner institution to open new
colleges.

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4)An affidavit in reply came to be presented
during pendency of writ petition No.6969/2013,
wherein it has been stated that the State Government

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4 WP No. 5805/2015

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has already accorded approval for opening a new
college in favour of the petitioner/institution; and
taking into consideration the aforesaid statement

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made on behalf of the State Government in the
affidavit in reply, Writ Petition No.6969/2013 came
to be disposed of by the Division bench of this court
on 19th December, 2014. It has been pointed out that
in consonance with the decision taken by the State
Government, a letter of intent has been issued in
favour of the petitioner/institution by the State
Government, permitting it to open an Arts, Commence
and Science College during the academic year 2015
2016, subject to fulfillment of certain requirements.
The petitioner contends that appropriate steps have
been taken for compliance of the requirements laid
down in Government Resolution dated 9th September,

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2014. In terms of the order issued by the State
Government, it is only after the final sanction by
the State Government, the petitioner/institution is
eligible to secure affiliation from the concerned
university. The petitioner makes a grievance that

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since no further steps were taken in pursuance of the

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order issued by the State Government, granting the
letter of intent, appropriate directions need to be

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5 WP No. 5805/2015

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issued to the Respondent/State and its authorities.

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5)The learned Sr. Counsel for the petitioner
contends that the petitioner/institution has tendered

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a proposal for opening Arts, Science and Commence
College at Dhule, within stipulated time frame, as
prescribed under Section 82 of the Act. The proposal
tendered by the petitioner institution has been duly
recommended by the University; and on taking into
consideration the recommendations of the University,
the State Government has issued the letter of intent
on 9th September, 2014. It would be impermissible for
the State now to contend that final permission cannot
be accorded since the time frame prescribed under
Section 82 of the Act has lapsed. It is further
contended that the blame in respect of lapsing of the
mandatory time frame, prescribed under Section 82 of
the Act, shall have attributable to the State
Government and the petitioner/institution cannot be
put to disadvantage. It is next contended that the
place, where the college is sought to be operated is
prescribed under the perspective plan. The proposal
tendered by the petitioner institution has been duly
recommended by the university as well as the State

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6 WP No. 5805/2015

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Government has also issued the letter of intent for

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opening the college on 9th September, 2014 and as
such, after lapse of few months, the State Government
now cannot be permitted to say that, in view of the
alleged change in the policy, the request made by the
petitioner/institution, cannot be considered.

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.The petitioner further contends that the
perspective plan, prescribing the location for

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opening of the new colleges within the jurisdiction
of the university shall have to be prepared by the
concerned university in accordance with Section 82(1)
of the Act of 1994.

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.The Government Resolution dated 30th

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October, 2010 prescribes the modalities in respect of
preparation and approval of the perspective plan.
Clause 1.2 thereof prescribes that after preparation
of perspective plan by the concerned university under
Section 82(1) of the Act of 1994, as prescribed under
clause 1.1 of the said GR, the perspective plan shall
have to be got approved from the State Council of
Higher Education. The concerned university shall have
also to prepare a plan for every academic year in

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respect of opening of new colleges. The universities
are expected to call for the proposals in respect of

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the colleges and the places included in the

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perspective plan, prepared for the relevant academic
year. On receipt of the applications from the
institutions, if there are any deficiencies, those
are required to be communicated to the concerned
applicants/institutions up to 20th November, calling
upon the concerned institutions/colleges to comply

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with the deficiencies up to 30th November of the

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relevant year. It is also expected of the

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universities to tender a report along with the
applications to Board of College and University
Development (for short, B.C.U.D.). An expert

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committee, appointed by the university, is expected
to visit the colleges and conduct inspection up to
15th January and submit its report to the Director,
B.C.U.D. through Vice chancellor up to 15th February.

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The university is not expected to recommend the
proposal of such of those institutions, which do not
have necessary infrastructure and such institutions

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shall have to be informed accordingly up to 25th
February. In other cases, the university is expected

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to tender its recommendations to the State

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Government. The institutions which are held

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disentitled are provided with an appellate remedy of

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8 WP No. 5805/2015

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tendering an appeal to the Vice chancellor and
decision in the appeal is expected by 15th of April of
the concerned academic year. The university shall
have to tender its recommendations to the State
Government up to 1st May of the relevant academic year
and the State Government is also mandated to
communicate the decision in respect of grant of
approval of the proposal up to 15th June of the
relevant academic year.

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6)The petitioner contends that in observance
of the aforesaid time frame, the proposal was
scrutinized by the university and the same was

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forwarded to the State Government and the State
Government has also accorded a letter of intent in
favour of the petitioner/institution to open a new
college for the academic year 20152016.

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7)The petitioner has placed reliance on the
judgment delivered by the Division Bench at principal
seat at Mumbai in Writ Petition No.6002/2015 and
other companion matters. The petitioners before the

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principal seat at Mumbai raised an identical
grievance as has been raised in the instant petition.

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9 WP No. 5805/2015

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The Division bench of this Court in the judgment in
aforesaid matter, has observed in para Nos.12 and 13
as under,

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“12.Government Resolution dated
29 April 2015, as stated to be the
policy decision of the State, not to
grantpermissiontoopennew
colleges/division/facultyforthe
academic year 201516, is issued by
overlookingtheearlierpolicy
decision and the directions issued to
prepare perspective plan for academic
year 201516 in the month of October
2014 and/or even prior to that. The
said plan, as noted, is still in
existence. Therefore, the prior action
to prepare fresh perspective plan by
the University for 201516 and/or
future year 201617, in no way, in our
view, should have been the reason to
deny the proposals, recommended by the
University for this year. The
affidavit itself shows that the
Government intended to have the fresh
plan for academic year 201617. The
whole action is contrary to the scheme
of the Act as well as earlier
Circular/GovernmentResolutionso
issued by the State of preparing
perspective plan which have a
statutoryfoundationforthe
Petitioners and/or such institutions

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10 WP No. 5805/2015

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to send their respective proposals in
time. The State’s sudden detour is
against the existing plan, practice
and own directions, apart from the
law.

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13.The submission that the State has
“absolute discretion” referring to
Section 82, based upon the stated
policy decision, in our view, is
unacceptable. The whole action of
State, in our view, is arbitrary,
unreasonable and is in breach of their
own statutory provisions and the
Circulars, apart from the breach of
the“principlesoflegitimate
expectation” and “the doctrine of
promissory estoppel”. There was
nothing wrong when they issued last
year direction/guidelines to prepare
the perspective plan as per the still
existing statutory provisions. The
change in policy, even if any, which
is the domain of the State, in the
facts and circumstances, ought to have
beenusedand/orutilised
prospectively for the year 201617 and
ought not to have been for the current
year 201516.”

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8)The Division Bench at the principal seat at
Mumbai had issued directions to the Respondent/State

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11 WP No. 5805/2015

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to consider the applications of the petitioner, as
provided under Section 82(5) of the Maharashtra
Universities Act, without taking into consideration
the Circular dated 29th April, 2015 and 20th July, 2015
in accordance with law. Although the Government
Circular dated 29th April, 2015 and 20th July, 2015 are
considered to be the Government Resolutions by the
Division Bench at principal seat at Mumbai, however,
fact remains that it is not a policy decision of the
State Government and those are merely the Circulars
issued by the State Government. As has been observed
by us in the aforesaid paragraphs, the circulars
issued by the State is not a policy decision and they
will not override the decision of the Government
reflected in GR dated 30th October, 2010. In any
eventuality, while taking a decision in the matter,
Circular dated 29th April, 2015 and 20th July, 2015
being contrary to Government Resolution dated 30th
October, 2010, they shall have to be overlooked.

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9)An affidavit in reply has been presented by
Deputy Secretary, Higher and Technical Education
Department, Mantralaya, on behalf of Respondent Nos.
1 and 2, controverting the contentions raised by the

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12 WP No. 5805/2015

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petitioner in the petition. Reliance is placed on

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the decision taken by the State Government vide its
Circular dated 29th April, 2015 whereby the Stae
Government has declared its intention to prepare a
new perspective plan for the academic year 20152016
onward. The State government has taken a decision not
to accord permission to open new colleges during the
academic year 20152016, since it was noticed that in
most of the colleges operated in the State, out of
total intake capacity of the colleges, about 25% or
more seats were lying vacant. The concerned
universities were expected to communicate the

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decision taken by the State Government in pursuance
of the Government Circular dated 29th April, 2015.

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10)It is argued on behalf of the State

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Government that in view of the Government Circular
dated 29th April, 2015, and appointment of a committee

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for preparing perspective plan by the circular dated
20.7.2015, the claim of the petitioner/institution,
for according sanction to open Arts, Science and
Commerce College for the academic year 20152016,
cannot be considered.

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13 WP No. 5805/2015

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11)Mr. Dixit, learned Senior counsel appearing

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for the Respondent/State, placing reliance on the

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provisions of Section 82 of the Maharashtra
Universities Act, contends that a time frame has been
prescribed for according final permission to open a
new college and since the period prescribed under the
said provision has come to an end, it is not possible
for the State Government to consider the application
of the petitioner/institution for granting permission
to open a new college during the academic year 2015
2016.

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12)It is necessary to take a note of the
important features of the policy declared and framed
by the State Government under its Government

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Resolution dated 30th October, 2010, and para 4

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thereof prescribes that, perspective plan prepared by
the university shall be operative for a period of
five years. It is worthwhile to note that although
Section 82 of the Act of 1994 does not prescribe the
period of operation of the perspective plan, the
policy of the State Government declared under its

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Government Resolution dated 30thOctober, 2010,

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prescribes that the perspective plan prepared by the

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14 WP No. 5805/2015

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university shall be operative for a period of five
years. It thus can safely be inferred that the
perspective plan prepared by the North Maharashtra
University for the academic year 20122013 shall
remain in operation up to the academic years 2016
2017. It has not been pointed out to us that the
policy decision taken by the State Government under
GR dated 30th October, 2010, prescribing existence of
the perspective plan, for a period of five years
prepared by the university, has been deviated or that
there is any change in the aforesaid policy.

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13)The State Government has placed reliance on
the Government Circular dated 29th April, 2015, where
under it has been declared that the State proposes to
appoint a committee for preparation of perspective
plan and the concerned universities are expected to
prepare a revised perspective plan and tender the
same to the State Council of Higher Education within
a period of three months. It must be noticed that
firstly the decision taken by the State Government on
29th April, 2015, recording therein that no permission
could be granted for opening of new colleges during
the academic year 20152016; and decision in that

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15 WP No. 5805/2015

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regard will be taken only after preparation of the

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perspective plan, does not appear to be a policy
decision/declaration of the State. It is merely a
Circular and the Circular is not expected to
transgress the policy decision taken by the State
Government declared under GR dated 30th October, 2010.

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The GR dated 30th October, 2010 prescribes that the
perspective plan would be in operation for a period
of five years; and in the instant matter, since the

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North Maharashtra University has declared the
perspective plan for the academic year 20122013 and

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the same shall remain operative up to the academic

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year 20162017. Apart from this, the decision taken
under the Government Circular dated 29th April, 2015
would be prospective in operation and shall not come

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in the way of the State Government for taking a
decision for granting final approval for opening of
new colleges in favour of the petitioner institution.

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It must be taken note of the fact that the

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application was presented by the petitioner

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institution for opening of new college in observance
of the due procedure prescribed under Section 82 of

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the Act of 1994 as well as the GR dated 30th October,
2010. The proposal tendered by the petitioner has

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16 WP No. 5805/2015

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been duly recommended by the university and the State
Government has also issued the letter of intent,
declaringitsintentiontopermitthe

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petitioner/institution to open a new college for the
academic year 20152016.

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14)An affidavit in reply was also tendered on
behalf of the State Government in Writ Petition No.
5849/2014, which was disposed of by the Division
Bench of this court on 19th December, 2014 on the
assurance of the State Government. It would be,
therefore, in fitness of things for the State
Government to consider the proposal tendered by the
petitioner institution for granting final approval
for opening a new college for the academic year 2016
2017.

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15)The learned Sr. Counsel appearing for the

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State Government, states that validity of the
Circular is not challenged and as such, the same
shall have to be considered as having binding force
while taking decision by the State Government. As we

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have observed herein above that the perspective plan
shall have to be prepared by the university under the

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17 WP No. 5805/2015

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provisions of Section 82(1) of the Act of 1994 and in

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the instant matter, the said perspective plan has

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been prepared by the North Maharashtra university

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during academic year 20132014 for a period of five
years, which would be operative up to 20162017. The
policy framed by the State Government, declared under
GR dated 30th October, 2010 prescribes that the
perspective plan prepared by the university shall be
valid for a period of five years. In such
circumstances, we have a serious doubt as to whether
the State Government can proceed to curtail the

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life/span of the perspective plan and take a
decision for preparation of fresh perspective plan
even for the academic year 20162017.

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16)It has been pointed out that in view of the
provisions of Section 82(1) of the Act of 1994, the
university is required to prepare a perspective plan,
which shall have to be approved by the State Council
of Higher Education.

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17)An affidavit in reply has been presented on
behalf of North Maharashtra university, stating
therein that the perspective plan has been prepared,

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18 WP No. 5805/2015

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as provided under Section 82(1) of the Act and GR
dated 30th October, 2010 for a period of five years,
i.e. 20122013 to 20162017. The said perspective

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plan was placed before the various statutory
authorities/bodies, i.e. State Council of Higher
Education for consideration and after necessary
sanction and approval from the statutory bodies of
the university, the North Maharashtra university has
finalized the perspective plan for the academic year
20122013 to 20162017. It is further contended that
as provided in the GR dated 30th October, 2010, the
university has submitted the perspective plan for

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sanction to the Director of Higher Education, Pune,
and the said authority was expected to submit the
same to the Maharashtra State Council for Higher
Education for necessary sanction. It is further
contended that on 21.7.2011, the university has again
submitted the perspective plan to the State council
for Higher Education for necessary sanction. In
similar fashion, during every academic year, the
university submitted the plan for the academic year
20122013 and 20132014 to the State Council for

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Higher Education for necessary sanction. However,
till this date, no communication has been received

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19 WP No. 5805/2015

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from the said authority. It is not disclosed as to
whether the Maharashtra State Council for Higher
Education has accorded approval to the perspective
plan prepared by the university as well as the plan
tendered for approval every year by the university,
as contemplated by Section 82(1) of the Act of 1994.

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18)Section 82(1) of the Act of 1994 mandates

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preparation of the perspective plan by the university
and approval for the said plan by the State Council
for Higher Education. In the event, the perspective
plan has not yet been approved by the State Council
for Higher Education, We direct the State to ensure
sanction of the perspective plan by the State Council
for Higher Education, as expeditiously as possible
and preferably within a period of eight weeks from
today. It would, however, be open for the State
Council for Higher Education to consider the

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perspective plan prepared and forwarded by the North
Maharashtra University during the academic year 2012
2013 and yearly plans within the contemplation of
Section 82(1) of the Act of 1994, presented during
each of the academic years within time frame,
stipulated as above.

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20 WP No. 5805/2015

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19)In this view of the matter, we direct the
State Government to consider the proposal of the
petitioner institution for the academic year 2016
2017 for the reason that the time frame, prescribed
under the GR dated 30th October, 2010 as well as the
provisions contained in Section 82 of the Act of
1994, has come to an end.

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20)We have issued directions to the State

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Government to consider the application tendered by
the petitioner/institution in the context of letter
of intent, already issued to the petitioner for
opening a new college during the academic year 2016
2017.

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21)The State is expected to take a decision in
the matter in accordance with and subject to approval
to the perspective plan by the State Council for
Higher Education.

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22)Rule is accordingly made absolute in above
terms. There shall be no order as to costs.

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sd/sd/
 (P.R.BORA) (R.M.BORDE)
 JUDGEJUDGE

¶140

bdv/

Vishal Shikshan Prasarak Mandal, Dhule v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vishal Shikshan Prasarak Mandal, Dhule v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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