Disposed

Nilai Educational Trusts Group of Institutions through Its Secretary Shri Manish Koomar v. the State of Jharkhand

Jharkhand HC13 Jun 2019WPC/1877/2019

Case brief

AI extract

What is this about?

Writ petition by a technical institute challenging denial of temporary affiliation and registration of its B.Tech third-semester lateral-entry students for 2018-19 on the ground that the University forwarded its timely application after the cut-off date. Court held the institute could not suffer for the authorities' delay and directed the State Government to decide afresh within three weeks.

What did the court decide?

State Government directed to consider the petitioner Institute's grievance afresh in accordance with law and take a decision within three weeks from receipt of a copy of the order.

Nilai Educational Trusts Group of Institutions… — Education and Admissions | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.1877 of 2019

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Nilai Educational Trusts Group of Institutions……… Petitioner

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Versus

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The State of Jharkhand

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The Secretary, Department of Higher Technical Education and Skill Development, Govt. of Jharkhand

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The Registrar, Ranchi University

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The Regional Officer, All India Council for Technical Education

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………. Respondents

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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Indrajit Sinha, Advocate For the Resp. Nos.1 &2 : Mrs. Aparajita Bhardwaj, A.C. to A.G. For the Resp. No.3 : Mr. Anoop Kr. Mehta, Advocate For the Resp. No.4 : Mr. P.A.S. Pati, Advocate

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05/13.06.2019 The writ petition is under Article 226 of the Constitution of India, whereby and whereunder following directions have been sought for:-

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a. For issuance of an appropriate writ(s), order(s) or direction(s), directing upon the respondents, to show cause, as to how and under what authority of law, the registration of students already enrolled in 3^rd Semester/2^nd year (Lateral Entry) of B.Tech Course has been denied registration vide Letter dated 15.04.2019 (Annexure-3), for the Academic Year 2018-2019, although the modalities required are fulfilled and nothing remains to be carried out at the instance of the petitioner.

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b. Consequent upon showing cause, if any, the letter dated 15.04.2019, issued by the Respondent No.3 be quashed and set aside and the Respondents be directed to facilitate the Registration of the students.

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c. For issuance of an appropriate writ(s), order(s) or direction(s), directing upon the Respondents, to allow the students of 3^rd Semester/2^nd Year (Lateral Entry) of the Petitioner Institute to participate in forthcoming examination to be held w.e.f. 26.04.2019.

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2. The brief facts of the case as per the pleading made in the writ petition is that the petitioner institute has been established and running in the name of Nilai Educational Trusts Group of Institutions situated at Burmu, Ranchi, to conduct the courses of Engineering and Technology and Management for the academic year 2010-11, the students were admitted in the Institute for its various approved courses.

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The AICTE granted extension of approval for the years 2011-12, 2012-13, 2013-14 and 2014-15. The respondent no.4 has notified the approval for the period 2018-19. The petitioner while waiting for the final decision of affiliation by the University has received a letter dated 15.04.2019 by which it has been informed that the petitioner does not have registration with the University for the period 2018-19 3^rd Semester/2^nd Year (2018-2021) nor with the State Government and for the earlier period also there is no registration, hence the petitioner has been restricted to carry out any admission (Lateral Entry) and has been informed that the students in B.Tech Course 2018-2019 academic session cannot be enrolled with the University for which the University cannot be held responsible. The University has published the dates for examination for 3^rd Semester 2018-2019 under B.Tech programme to be held with effect from 26.04.2019.

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3. The grievance of the petitioner as has been agitated in this writ petition is that an application to the University for grant of temporary affiliation for B.Tech Course for the academic session 2017-18, has been made, in pursuance thereto vide office order dated 25.01.2018, a Committee was constituted to carry out the inspection of the petitioner Institute followed by another Committee constituted on 05.09.2018, in terms thereof, an inspection has been carried out which has been found up to the satisfaction of the University but the temporary affiliation has not been granted and when inquired it has been informed that the application submitted by the petitioner Institute is beyond cut-off date i.e. on 15.05.2017 and therefore, appropriate order for granting temporary affiliation to the petitioner Institute has not been granted and therefore, the petitioner has compelled to file the writ petition inter-alia on the ground that when the application has

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been made before the University in the Month of February, 2017 i.e., on 15.02.2017 which was received by the University on the same date but the University ought to have taken decision but having not done so and in the meanwhile the deadline of 15.05.2017 has crossed, therefore, the petitioner cannot be held responsible, if no decision has been taken on the application filed by the petitioner on 15.02.2017 and thereby the denial of the order of temporary affiliation, is not proper.

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4. The counter affidavit has been filed by the Ranchi University inter-alia therein the stand has been taken that since the application for approval of the temporary affiliation for the academic session 2017-18 has been received, although the petitioner has made an application on 15.02.2017 but without any requisite fee, therefore, the same has not been processed and it is only in the Month of January, 2018, the required fee has been submitted and it is then only the inspection was conducted by the University which has been found to be satisfactory, thereafter the same has been referred before the State Government and it was the State Government who was to take decision.

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So far as the academic session 2018-19 is concerned, since the temporary affiliation for the academic session 2017-18 has not been taken, therefore, the approval for academic session 2018-19 has not been taken.

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5. The State of Jharkhand has filed an affidavit inter-alia therein stand has been taken that as per the cut-off date fixed by the Hon’ble Apex Court in the case of Parshvanath Charitable Trust and Ors. Vrs. All India Council for Technical Education and Ors . passed in Civil Appeal No.9048 of 2012, the cut-off date has been fixed and therefore, in-complete adherence to that direction since, the Ranchi University has forwarded the said application after the cut-off date i.e., after 15.05.2017, therefore, the required approval has been granted in favour of the petitioner Institute.

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6. In the backdrop of this aspect of the matter, this Court thinks it proper to deal with the judgment rendered by the Hon’ble Apex Court in the case of Parshvanath Charitable Trust and Ors. Vrs. All India Council for Technical Education and Ors ., reported in (2013) 3 SCC

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385 wherein at paragraph nos.24 and 25 the Hon’ble Apex Court has been pleased to inter-alia hold as hereunder:-

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“ 24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of AICTE in the field of technical education. Statutes like the present one as well as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law. AICTE is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by AICTE. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education, examination and proper infrastructure for betterment of technical educational system.

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25. It is also a settled principle that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE Act. In All India Council for Technical Education v. Surinder Kumar Dhawan⁸ , this Court, while stating the principles that the courts may not substitute their opinion in place of the

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opinion of the Council, held as under: (SCC pp. 732-33 & 736, paras 17-18 & 32)

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“17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha v. Allahabad Universit y⁹ this Court observed: (SCC pp. 424-26, paras 11-17)

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‘11. … Judges must not rush in where even educationists fear to tread. …

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17. … While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.’

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(emphasis supplied)

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18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth¹⁰ this Court reiterated: (SCC pp. 56-57, para 29)

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‘29. … the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-today working of educational institutions and the departments controlling them.’

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* *

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32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like AICTE. This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma-holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards

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and quality of engineering degree courses. Courts should guard against such forays in the field of education.”

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In the aforesaid judgment, at paragraph 35, the Hon’ble Apex Court has been pleased to lay down by holding therein, about the requirement of law, which is strictly to be adhered to, pertaining to the time schedule for grant of approval as well as for admission without inspection, the same reads hereunder as :-

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“ 35. It is the requirement of law that there should be strict adherence to the time schedule for grant of approval as well as for admissions without exception. In exercise of the powers vested in AICTE, under subsection (1) of Section 23 of the AICTE Act, it had made regulations, namely, the All India Council for Technical Education (Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Approval of Intake Capacity of Seats for the Courses or Programmes) Regulations, 1994. The Schedule to these Regulations reads as under:

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Sl. No. Stage of processing application Last date by which the processing should be completed

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(1) (2) (3)

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1. For receiving proposals by Bureau RC.31st December

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2. For Bureau RC to screen the application and (a) to return the incomplete applications to the applicants, and (b) to forward the applications to (i) State Government concerned (ii) University or State Board concerned, for their comments (iii) Regional Officer to arrange visits by Expert Committees, and (iv) Bureaus MPCD, BOS and RA for their comments.

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3. For receiving the comments from (i) the State Government (ii) the University or the State Board, and (iii) the Regional Committee based on the Expert Committee’s report, and (iv) from the Bureaus MPCD, BOS and RA. 15th March

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4. For consideration of the comments from the State Governments, Universities or State Boards, Regional Committees, and Bureaus of the Council by the State level Committee. 31st March

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5. For recommendations to be made by the Central Task Force. 15th April

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6. For communicating the final decision to the State Government or the University Grants Commission, under intimation to the Regional Office, Director of Technical Education, applicant, University or State Board. 30th April. This Schedule has statutory backing. Thus, its adherence is mandatory and not directory.”

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At paragraph 36, it has been laid down, which reads hereunder

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as :-

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“ 36. Non-adherence of this Schedule can result in serious consequences and can jeopardize not only the interest of the college students but also the maintenance of proper standards of technical education. The authorities concerned, particularly AICTE, should ensure proper and timely action upon the applications submitted to it. It must respond to the applicant within a reasonable time period and should not let the matter drag till the final date giving rise to avoidable speculations by all stakeholders. Thus, it would be appropriate for these authorities to bring to the knowledge of the parties concerned, the deficiencies, if any, and the defects pointed out by the Expert Committee during the inspection within three weeks from the date of such inspection or pointing out of defects, as the case may be. For better administration, AICTE should also state the time within which such deficiencies/defects should be removed by the applicant. This will help in building of a coherent and disciplined method of working to ensure the proper implementation of the entire formulated scheme of technical education. AICTE will not have any jurisdiction or authority to issue approval for commencement of a new course or for additional intake of students beyond 30th April of the year immediately preceding the commencement of an academic year.”

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In the concluding part at paragraph 46, following principles have been laid down, which reads hereunder as:-

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“ 46. For the reasons afore-recorded, we find no merit in both the appeals afore-referred. While dismissing these appeals, we issue the following directions:

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46.1. Both grant/refusal of approval and admission schedule, as aforestated, shall be strictly adhered to by all the authorities concerned including AICTE, the University, the State Government and any other authority directly or indirectly connected with the grant of approval and admission.

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46.2. No person or authority shall have the power or jurisdiction to vary the schedule prescribed hereinabove. 46.3. While dealing with the application for grant of approval to new colleges or additional seats, AICTE shall inform the applicant within three weeks from the date of receipt of its application or date of inspection, as the case may be, the shortcomings/defects, who, in turn, shall remove such shortcomings/defects within 15 days from the date of such communication or within such period as AICTE may grant and re-submit its papers

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without default. The process of grant of approval has to be transparent and fair. AICTE or the University or the State Government concerned shall take disciplinary action against the person who commits default in adherence to the schedule and performance of his duties in accordance therewith.

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46.4. The reports submitted by the Expert Committee visiting the College should be unambiguous and clear, and should bear the date and time of inspection and should be sufficiently comprehensive and inspection be conducted in the presence of a representative of the institute.

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46.5. The students of the appellant College shall be reallocated to the recognized and affiliated colleges in terms of the judgmen t¹ of the High Court; and AICTE and the university concerned shall ensure that the academic courses of these students are completed within the balance period of the academic year in all respects. For this purpose, if extra classes are required to be held, the institute concerned, the University and AICTE are directed to ensure holding of such extra classes.

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46.6. If the appellate authority decides the matter prior to 30th April of the year concerned and grants approval to a college, then alone such institution will be permitted to be included in the list of colleges to which admissions are to be made and not otherwise. In other words, even if the appellate authority grants approval after 30th April, it will not be operative for the current academic year. All colleges which have been granted approval/affiliation by 10th or 30th April, as the case may be, shall alone be included in the brochure/advertisement/website for the purpose of admission and none thereafter.”

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7. In the further judgment as has been rendered by the Hon’ble Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and others reported in (2013) 2 SCC 617, wherein at paragraph 79, the Hon’ble Apex Court has been pleased to lay down which reads as hereunder:-

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“ 79. It is on record and the Regulations framed under the Act clearly show that upon receiving an application for recommendation, NCTE shall send a copy of the application with its letter inviting recommendations/comments of the State Government on all aspects within a period of 30 days. To such application, the State is expected to respond with its complete comments within a period of 60 days. In other words, the opinion of the State on all matters that may concern it in any of the specified fields is called for. This is the stage where the State and its Department should

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play a vital role. They must take all precautions to offer proper comments supported by due reasoning. Once these comments are sent and the State Government gives its opinion which is considered by NCTE and examined in conjunction with the report of the experts, it may grant or refuse recognition. Once it grants recognition, then such grant attains supremacy vis-à-vis the State Government as well as the affiliating body. Normally, these questions cannot be re-agitated at the time of grant of affiliation. Once the university conducts inspection in terms of its statutes or Act, without offending the provisions of the Act and conditions of recognition, then the opinion of the State Government at the second stage is a mere formality unless there was a drastic and unacceptable mistake or the entire process was vitiated by fraud or there was patently eminent danger to the life of the students working in the school because of noncompliance with a substantive condition imposed by either of the bodies. In the normal circumstances, the role of the State is a very formal one and the State is not expected to obstruct the commencement of admission process and academic courses once recognition is granted and affiliation is found to be acceptable.”

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8. Considering the aforesaid observation made by the Hon’ble Apex Court in the aforesaid judgment, it has been directed therein that after getting the approval under the NCTE, the petitioner, therein, has deposited the inspection fee and thereafter, the delayed fee has also been deposited. The Inspection Committee was constituted, which inspected the petitioner-College and a decision was taken to grant affiliation to the petitioner-College for the Academic Session 2014-15.

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9. It needs to refer herein an order passed by the Coordinate Bench of this Court passed in W.P.(C) No.3977 of 2015 wherein the respondent-Sido Kanhu Murmu University has notified that the B.Ed. Colleges including the petitioner-college who have yet not been approved by the Human Resources Development Department, Govt. of Jharkhand, would not be permitted to submit examination forms of B.Ed. Final Examination, 2015 and against that the writ petition was filed.

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10. The contention raised by the petitioner-college therein that the National Council for Teachers Education for grant of recognition for conducting B.Ed. courses for academic session 2014-15 and NCTE

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granted recognition on 03.03.2014 for the academic session 2014-15 and onwards. The petitioner-college received the letter of recognition on 11.03.2014 and immediately thereafter, it submitted application on 13.03.2014 seeking grant of affiliation from Sido Kanhu Murmu University. The University vide letter dated 15.03.2014 directed the petitioner-college to deposit Rs.5,000/- as inspection fee which the petitioner-college deposited on the same day through Challan bearing No.72267 dated 15.03.2014. The University inspected the college on 26.03.2014 and vide letter dated 17.04.2014 it informed the petitioner-college that it has been granted affiliation. The University directed the petitioner to deposit Rs.2,50,000/- as Reserved Fund for the academic session 2014-15 which was deposited by the petitionercollege on the same day and it was duly communicated to the Registrar of the University through letter dated 17.04.2014. Subsequently, the students admitted by the petitioner-college were registered under the University for the academic session 2014-15 and the University accepted deposit of Rs.1,00,000/towards development fee for 100 students and Rs.16,000/- towards migration and registration fee for 80 students on 19.09.2014. Later on, affiliation for the academic session 2015-17 was granted by the University and the same was approved by the Department of Human Resources Development. While the proposal for grant of approval for affiliation to the petitioner-college remained pending with the State Government, the respondent University issued notifications dated 10.08.2015 and 13.08.2015, wherein it was notified that the examination forms from the petitioner-college and other Institutes would not be accepted by the University until, grant of approval by the Human Resources Development Department, aggrieved the petitioner-college has approached this Court.

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11. The Coordinate Bench of this Court has taken aid of the judgment rendered by the Hon’ble Apex court in the case of Asha Vrs. PT. B.D. Sharma University of Health Sciences and Ors., reported in (2012) 7 SCC 389 wherein, it has been laid down that if there is no laches on the part of the students they cannot be victimized.

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Likewise, the judgment rendered by the Hon’ble Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya vrs. State of Uttar Pradesh and others (supra) has taken note of this Court after going across the aforesaid judgment has considered the factual aspect involved in this case.

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12. The undisputed fact in this case is that the deadline for submission of the application form is 15.05.2017 and prior to that date the institute is to make application before the University for conducting inspection and the said inspection report is to be forwarded by the University before the competent authority of the State Government for its approval for granting affiliation.

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13. Admittedly, herein the petitioner Institute has submitted application on 15.02.2017 but the same has not been processed by the University and kept the same pending till the Month of January, 2018 and it is only in the Month of January, 2018, the petitioner Institute has been informed to deposit the required inspection fee and thereafter the University has conducted an inspection and found everything as per the norms provided by the AICTE and forwarded the report before the State Government, the State Government has refused to grant affiliation on the ground that University has forwarded the report only after the cut-off date i.e. after 15.05.2017.

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14. In these circumstances now it is to be examined by this Court that if any application submitted by the petitioner Institute, the date is much prior to the cut-off date if the University is forwarding it to the State Government, after expiry of the cut-off date can the petitioner Institute be denied relief and in these circumstances whether the judgment pronounced by the Hon’ble Apex Court in the case of Parshvanath Charitable Trust and Ors. Vrs. All India Council for Technical Education and Ors .,(supra), will be applicable.

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15 . The Hon’ble Apex Court in the case of Parshvanath Charitable Trust has been pleased to hold that the strict adherence to the time schedule for grant of approval as well as for admissions without exception is to be made and for which the 15^th day of the Month of

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the academic session has been said to be the cut-off date for taking decision for affiliation or its refusal.

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The petitioner Institute if is submitting the application after the cut-off date of the Month of the following academic session certainly would not be entitled to get the recognition/approval since laches lies on its part but if no laches lie on the part of the Institute the said Institute cannot be denied the relief for the laches committed on the part of the University or the State Government.

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16. The Hon’ble Apex Court in the case of Parshvanath Charitable Trust has laid down that the strict adherence to the time schedule is to be made and the said judgment is applicable to all concern even to the Institute or the competent authority granting approval or the affiliation, in that course, if the laches lies on the part of the Institute certainly, in view of the judgment rendered in the case of Parshvanath Charitable Trust, no relief can be extended and in the light of this factual aspect, this Court has examined the fact involved therein wherefrom it is evident that the petitioner Institute has submitted the application on 15.02.2017 which is much prior to the cut-off date i.e., 15.05.2017 but the same has not been acted upon by the University rather the communication has been made by the University only in the Month of January, 2018, wherefrom the petitioner Institute has been informed that the application submitted by it on 15.02.2017 is not supported with the required fee of inspection upon which the petitioner Institute has deposited the required fee and thereafter the Inspection has been conducted.

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17. The stand which has been taken by the University that the application dated 15.02.2017 cannot be said to be application in the eye of law since the same was incomplete in absence of required fee and therefore, the same has not been acted upon and it is only acted upon when the required fee has been submitted in terms of the letter issued by the authority in the Month of January, 2018.

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Now the question would be that when the petitioner Institute has made application on 15.02.2017 and if the said application was incomplete then it was onus duty of the University in exercise of statutory function to forthwith either reject the said application or to

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communicate the petitioner Institute regarding shortcomings in the application but the University has failed to discharge its duty of its part and sat idle for a period of about 11 months and it is only in the Month of January, 2018, the required communication has been made asking the petitioner to deposit the required fee which has duly been complied with.

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18. The contention of the petitioner is that there is no regulation or rule of depositing the required fee save and except if communicated by the concerned University which has not been disputed by the learned counsel for the University and therefore, once the petitioner Institute has made application without any requisites fee it was incumbent upon the University to forthwith informed to the petitioner Institute by communicating about the required fee or to reject it, this contention of the petitioner is not to be discarded because the petitioner has fulfilled its part of action by making application on 15.02.2017 which is prior to the cut-off date i.e. 15.05.2017 and if the University has sat idle for a period of 11 months in the meanwhile the cut-off date has expired on 15.05.2017 for which the petitioner Institute cannot be made to suffer.

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19. In the case of Maa Vaishno Devi Mahila Mahavidyalaya vrs. State of Uttar Pradesh and others (supra) wherein at paragraph 79 as referred above, the observation has been made, although with respect to the NCTE, that on receipt of the application with its letter inviting recommendations/comments of the State Government on all aspects within a period of 30 days. To such application, the State is expected to respond with its complete comments within a period of 60 days , meaning thereby, in this case the authority is supposed to discharge their duty without causing any delay and that is also the spirit of the judgment passed by the Hon’ble Apex Court in the case of Parshvanath Charitable Trust.

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20. However, the judgment rendered in the case of Parshvanath Charitable Trust, the strict adherence to the time schedule is to be maintained but the question herein is that when there is no laches on the part of the petitioner then why the petitioner Institute is made to suffer and this aspect of the matter is very much clear from

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fact discussed hereinabove, therefore, this Court is of the view that the grievance of the petitioner Institute is required to be considered by the State Government afresh in accordance with law by taking a decision in this regard within a period of three weeks’ from the date of receipt of copy of the order.

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21. In view thereof, the writ petition stands disposed of.

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Rohit/-

Nilai Educational Trusts Group of Institutions through Its Secretary Shri Manish Koomar v. the State of Jharkhand

Case brief

What is this about?

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Nilai Educational Trusts Group of Institutions through Its Secretary Shri Manish Koomar v. the State of Jharkhand

Case brief

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