1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 1233 OF 2009 ALONG WITH WRIT PETITION (LODGING) NOS. 1234 OF 2009 AND 1235 OF 2009 WRIT PETITION (LODGING) NO. 1233 OF 2009 1) Shri Chatrapati Shivaji College of ) Engineering, Shri Shivaji Nagar (Rahuri ) Factory), Taluka – Rahiri, Dist. Ahmednagar. ) 2) Shri Shivaji Shikshan Prasarak Mandal ) Shri Shivaji Nagar (Rahuri Factory) ) Taluka – Rahuri, Dist. Ahmednagar. ) 3) Shri Kishore Vane ) Secretary, Shri Shivaji Shikshan Prasarak ) Mandal, Shir Shivaji Nagar (Rahuri Factory) ) Taluka – Rahuri, Dist. Ahmednagar. )Petitioners VERSUS 1) All India Council for Technical Education ) a statutory body established under the ) All India Council for Technical Education ) Act, 1987 through its Member Secretary ) AICTE, Regional Office, Industrial Assurance ) Building, Churchgage, Mumbai 400 021. ) 2) The Principal Secretary Higher and ) Technical Education and Employment ) Dept., Government of Maharashtra, ) Mantralaya, Mumbai. ) 2 3) The Director of Technical Education ) having his office at Mahapalika Marg ) Mumbai 400 001 (to be served on learned ) Government Pleader, High Court, ) Bombay (O.S.) )Respondents ALONG WITH WRIT PETITION (LODGING) NO. 1234 OF 2009 1) Indira School of Business Studies ) having its address at 89/2A, Thathawade ) New Pune Mumbai Highway, Near Wkad ) Police Chowki, Pune 411 033. ) 2) Shri Chanakya Education Society ) a Society registered under the Societies ) Registraton Act, 1860 and a public trust ) registered under the Bombay Public Trust ) Act, 1950 having its office at 89/2A ) Thathawade, New Pune Mumbai Highway ) Near Wkad Police Chowki, Pune 411033 ) 3) Dr. Renu Bhargava, Director, ) Indira School of Business Studies ) having its office at 89/2A, Thathawade ) New Pune Mumbai Highway, Near Wkad ) Police Chowki, Pune 411 033. )Petitioners VERSUS 1) All India Council for Technical Education ) a statutory body established under the ) All India Council for Technical Education ) Act, 1987 through its Member Secretary ) AICTE Regional Office, Industrial Assurance ) Building, Churchgage, Mumbai 400 021. ) 3 2) The Director of Technical Education ) Government of Maharashtra, having its ) Regional Office, 412-E, Shivaji Nagar ) Pune 411 016. ) 3) The State of Maharashtra through its ) Secretary, Higher & Technical Education ) Department, Mantralaya, Mumbai ) (To be served on learned Government ) Pleader, High Court, Bombay (A.S.) )Respondents AND WRIT PETITION (LODGING) NO. 1235 OF 2009 1) Indira College of Engineering and ) Management established by ) Shree Chanayaka Education Society ) S.No.64-65, Gut No.276, Paradwadi ) Of Pune-Mumbai Highway, Near Somatne ) Phata, Taluka Maval, Pune 411 506. ) 2) Dr. R.V. Kulkarni Director, ) Indira College of Engineering and ) Management having his address at ) .No.64-65, Gut No.276, Paradwadi ) Of Pune-Mumbai Highway, Near Somatne ) Phata, Taluka Maval, Pune 411 506. )Petitioners VERSUS 1) All India Council for Technical Education ) a statutory body established under the ) All India Council for Technical Education ) Act, 1987 through its Member Secretary ) AICTE Regional Office, Industrial Assurance ) Building, Churchgage, Mumbai 400 021. ) 4 2) The Principal Secretary Higher and ) Technical Education and Employment Dept ) Government of Maharashtra, Mantralaya ) Mumbai. ) 3) The Director of Technical Education ) having his office at Mahapalika Marg ) Mumbai 400 001 (To be served on learned ) Government Pleader, High Court, ) Bombay (O.S.). )Respondents Mr. Shekhar Naphade, Senior Advocate, a/w Mr. Girish Kulkarni i/b Sandeep Waghmare for the Petitioners in Writ Petition (L) No.1233 of 2009. Mr. Y.S. Jahagirdar, Senior Advocate, a/w Mr. Girish Kulkarni i/b Sandeep Waghmare for the Petitioners in Writ Petition (L) No.1234 of 2009. Mr. J.J. Bhatt, Senior Advocate, a/w Mr. Girish Kulkarni i/b Ms. Sushma Kulkarni for the Petitioners in Writ Petition (L) No.1235 of 2009. Mr. M.D. Naik, Assistant Government Pleader, for the State in all the Writ Petitions. Ms. Beena Menon for All India Council for Technical Education (AICTE) in all the Writ Petitions. CORAM : SWATANTER KUMAR, C.J. AND S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 7TH /22ND JULY 2009 JUDGMENT PRONOUNCED ON : 30TH JULY 2009 5 JUDGMENT (PER SWATANTER KUMAR, C.J.) Heard. Rule in all the Writ Petitions. Rule made returnable forthwith. By consent, taken up for hearing and final disposal. 2. By this common judgment we will dispose of the above three Writ Petitions. A some what common question of law and interpretation arises for consideration in these Petitions, however, on distinct facts, thus it will be necessary for the Court to notice the facts of each case separately. 3. At the outset, we may notice that the All India Council for Technical Education (hereinafter referred to as “the Council”) could not file the reply in any of these cases and the Court had directed the Council to produce the original records in the Court as these Writ Petitions were required to be disposed of at the earliest keeping in view the interest of the colleges and the students. Records had been produced before the Court which were perused during the course of arguments. 6 4. In Writ Petition No.1233 of 2009, the Petitioner is Shri Shivaji Chhatrapati College of Engineering which is being run by Shri Shivaji Shikshan Prasarak Mandal, Rahori, District Ahmednagar. The Petitioners with the intention of starting and establishing the College, submitted an application on 18th December 2007. Even according to the Petitioners, the applications received prior to 31st December 2008 were to be considered for the academic year 2009-10 and the applications received thereafter were to be considered for the academic year 2010-11. It is stated that the Council was required to grant approval by 30th June 2009 of completed applications received by 31st December 2008, in terms of Clause 6.2.10 of “The All India Council for Technical Education (AICTE) Grant of Approval for starting new technical institutions, introduction of courses or programmes and increase/variation of Intake capacity of Seats for the Courses and Programmes and Extension for Approval for the Existing Technical Regulations 2006” (hereinafter referred to at “the Regulations”) framed by the Council. Vide letter dated 28th December 2007, the Petitioners submitted the application, duly complete in all respects along with the requisite fees of Rs.40,000/-, which 7 was acknowledged by Respondent No.1 on 28th December 2007 itself. It appears from the record that on 30th July 2008, Letter of Intent was issued to Petitioner No.2 for establishment of new Degree Engineering Institution for the academic year 2009-10 (Exhibit “A” to the Writ Petition). It stipulated various conditions and required the Petitioners to deposit an amount of Rs.35 lakhs for Engineering and Technology (Degree). It also contained various terms and conditions and stated that the Expert Committee would visit the institution to verify the original documents and will also verify all the necessary infra- structural facilities required for establishment of a new institution as per the norms of the Council as detailed therein. The Petitioners were also informed by the Council that the Expert Committee shall process the proposal as per the revised Approval Process and final decision of grant of approval or otherwise shall be communicated to all concerned by the Council, subsequently. 5. In the Letter of Intent, the following clause was also mentioned :- 8 “The applicant Trust/Society is hereby informed that issuance of LOI by AICTE does not entitle to automatic grant of approval. The proposed institution cannot commence any educational activity and admit students based on LOI.” 6. The Expert Committee visited the College and submitted a report dated 1st June 2009, not recommending the grant of approval to the Institution of the Petitioners. Inter alia, it pointed out the following deficiencies :- “1) 100% deficiency of equipments in the Labs and W/S. 2) Principal is got to attain 65 years of age on 16th June 2009. 3) Existing school building is being converted into Engg. College and it is in the process of modification and is not as per approved building plan. 4) No Bills and vouchers are available for the procurement made. 5) Bank statements not available. 6) Faculty members are short.” 7. Vide letter dated 11th June 2009, the Council informed the Petitioners that various deficiencies, as noticed 9 above, were observed which related even to lack of infrastructure of laboratories, workshop and other defects as pointed out by the Inspecting Team. On 13th June 2009, the Petitioners filed an application for reconsideration of their proposal for approval(Exhibit “C” to the Petition). In this application, the Petitioners had specifically requested for, “reconsideration of approval for Shri Chatrapati Shivaji College of Engineering for the current academic year” and have also claimed to have written about compliance of rectifying the deficiencies. The Expert Committee Report dated 15th June 2009, had clearly recorded “not recommended for issue of LOA for 2009-10, deficiencies as pointed out in the report may be conveyed”. The objections related to defects in building plans, lack of infra-structure, Principal appointed not possessing requisite statutory experience, etc. The Petitioners, vide their letter dated 19th June 2009, preferred an appeal before the Appellate Authority which commented upon the defects pointed out and then observed as under :- “Approved Y. LOA be issued for 2010-11”. 10 8. Vide letter dated 23rd June 2009, the Council issued the letter of approval for the academic year 2010-11 and pointed out number of deficiencies which were to be complied with and as per clause 7(d) of the said letter, the compliance report was to be submitted by fulfilling the conditions in each year within the time prescribed by the Council from time to time. Other conditions related to that of laboratories, workshops, etc. should be operational before college starts; the library should be established with adequate number of titles, books and journals and the Institution should provide for the facilities indicated in paragraph 16 thereof. This conditional grant of approval is the basis of the Petitioners’ in the present Writ Petition. 9. According to the Petitioners and as per the law enunciated by the Full Bench of this Court in the case of Mahatma Gandhi Missions Institute, Aurangabad vs State of Maharashtra and others, 2008 (5) Mh.L.J. 913, the approval should have been for the current academic year and the College is entitled to grant admission to the students for the current academic year of 2009-10 and to that extent they pray 11 for the modification of the Letter of approval dated 23rd June 2009. 10. In Writ Petition (Lodging) No.1235 of 2009, Indira College of Engineering and Management which had been established by Shree Chanayaka Education Society, Paradwadi, Pune, is an institution which is running an Engineering College which, according to them, was founded in the year 2007 and they are running 12 educational institutions ranging from primary level and post graduation. To increase the intake capacity of the seats in their institution and after providing complete infra-structure, the Petitioners submitted an application on 14th October 2008 to the Council, which complied with the several requirements. The Petitioners wanted to enhance the intake capacity in Mechanical and Computer Engineering faculties from 90 to 120 and 60 to 120, respectively. The Council through its Regional Office, Mumbai had forwarded the application to the New Delhi office on 17th March 2009. Vide letter dated 18th June 2009, the Respondent Council pointed out that there was deficiency in the faculty of Mechanical Engineering and Computer Engineering and called 12 upon the Petitioner to rectify the deficiencies and submit fresh proposal with all relevant documents in support of compliance of deficiencies with requisite fee for further action. According to the Petitioners, they did not receive this letter and they obtained a copy of the said letter from the website on 16th June 2009 and the actual copy was received on 20th June 2009. The Petitioners immediately vide their letter dated 16th June 2009 recorded that it was a matter of great concern, the faculty was sufficient and that there was no deficiency and also requested the respondents to issue necessary corrigendum on their website so as to enable the petitioners to take part in the centralised admission in the State with effect from 15th June 2009 for allocation of seats to the students. It appears that on 23rd June 2009, Hearing Committee reconsidered the proposal and recommended the increase and thereafter revised letter (increase in intake) dated 24th June 2009 for increase in intake capacity for Mechanical, Computer Engineering and MCA was issued for the academic year 2010-11 to be valid for two years from the date of issue for getting affiliation with university and State Government requirements of admission and various other conditions were 13 imposed for compliance before admission could be granted. According to the Petitioners, the intake capacity should have been increased for the current academic year and not for 2010-11. 11. In Writ Petition (Lodging) No. 1234 of 2009, Indira School of Business Studies claims to be an educational institution and conducts autonomous courses in Business Management. The Petitioners, after providing the entire infra- structure requirements, on 14th October 2008 submitted their duly completed application form to the Respondent Council for starting additional course in PGDBM-IB, Exhibit “A” to the Writ Petition. According to the Petitioners, the Inspecting Team of respondent No.1 is stated to have undertaken the inspection on 20th March 2009 and vide letter dated 1st June 2009, which according to the Petitioners, was received by them on 18th June 2009, they were informed that there were some deficiencies on account of shortfall in area and additional intake could not be considered. The said letter which is at Exhibit “B” to the Writ Petition reads as under :- 14 “ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (A Statutory Body of the Govt. of India) F.No.06/07/MS.MBA/2006/011 Date : June 1, 2009. To The Director Indira School of Business Studies’ 85/5A, Tathawade, Near Wakad Police Chowki Mumba-Banglore Bypass Highway, Pune 411 033 Sub: Application for increase in Intake/Additional Course of Indira School of Business Studies 85/5A, Tathawade, Near Wakad Police Chowki Mumbai-Banglore Bypass Highway, Pune 411 033 for the Academic year 2009-1010. Sir, This has reference to your application made for considering grant of approval for increase in intake/ additional course. The same has been examined by the Hearing Committee as per the norms and standard of the AICTE. Based on the recommendation of the hearing committee, I am directed to inform you that your application for increase in intake/additional course has not been found suitable due to the following deficiencies :- * Shortfall in built up area as per AICTE norms. * The additional intake cannot be considered as the even the first batch has not been passed out as per AICTE norms. The institute should consolidate its position. * The cadre ratio is not as per AICTE norms. 15 However, if you wish to apply again for Increase in Intake/additional course(s), you may submit a fresh proposal, alongwith the requisite fees, to the concerned Regional Office after rectification of above deficiencies, as per policy of the council. It may be noted that as per policy only one application for reconsideration shall be considered by the Council. Yours faithfully, Sd/- (Prof.H.C.Rai) Advisor (PC) Copy to : 1) The Regional Officer AICTE-Western Regional Officer Mumbai, Maharashtra. 2) Guard File (AICTE-PC Bureau).” 12. Vide letter dated 19th June 2009, the Petitioners disputed the deficiencies and pointed out that they had been running the academic courses successfully and the Council should grant approval for the current academic year. It was also averred that their first batch had passed out. However, no letter of approval was issued by the Council to the Petitioners. Thus, the Petitioners have filed the present Writ Petition 16 praying that the Respondents be directed to grant approval to the Petitioners for the academic year 2009-10. 13. The learned Counsel appearing for the parties primarily relied upon the various parts of the Full Bench Judgment in Mahatma Gandhi Missions Institute (supra). According to the learned Counsel appearing for the Petitioners, any approval granted prior to 30th June should have the effect for the current academic year i.e. 2009-10 and the Respondents have granted approval with effect from the next academic year i.e. 2010-11 which is arbitrary, discriminatory and has no reasonable basis. It is further contended that it is contrary to the law enunciated in the case of Mahatma Gandhi Missions Indtitute (supra) as well as other judgments of the Supreme Court. On the contrary, the learned Counsel appearing for the Council has vehemently argued that they have strictly acted as per the judgment of this Court in Mahatma Gandhi Missions Institute (supra) and contended that any approvals granted prior to 15th June 2009 could be operative for the current academic year and any approval granted, particularly conditionally granted, has to be operative 17 for the next academic year. According to the learned Counsel, this would not only prejudice the interest of the Council but even the admission of the students to the courses as well as the education standards. 14. It will be useful to refer to the relevant part of the judgment of the Full Bench of this Court in Mahatma Gandhi Mission (supra). The same reads as under :- “39. The Division Bench of this court in the case of Atharva Institute of Management (supra), after noticing the various judgments of the Supreme Court as well as the directions issued by different Benches of this court had not only prescribed the need for adherence to uniform standard and to the cut-off date but also noticed the further difficulty that the college is not entitled to admit the students merely on the ground that AICTE has granted its approval. It has to be supplemented by proper exercise of power by the statutory authorities. The satisfaction of such authorities, obviously, has to be in consonance with the conditions imposed by the AICTE. The Bench dealing with the difficulties posed by the State Government in implementation of eleventh hours increase in intake strength etc., issued the following directions: “9. The State Government has, in the course of these proceedings, set out the serious difficulties that arise in implementing the admissions process if AICTE grants approval throughout the 18 year in an unregulated manner. This, it has been stated, would cause irreparable loss, hardship and immense inconvenience to students. An increase in the number of seats for a particular academic year can occur for one of the following reasons viz., : (i) An approval granted for opening of a new College; (ii) An approval granted for opening of a new course in an existing affiliated College; and (iii) An approval granted for an increase in the intake capacity of an approved affiliated old course conducted by an existing approved and affiliated College. The State Government has stated that if approval is granted on the eve of the commencement of admission, such additional seats should not be made available for the grant of admissions in the particular Academic Year for several reasons: (i) The educational institution is not immediately entitled to admit students merely on the ground of approval by AICTE, because AICTE grants approval subject to the fulfillment of various conditions. Hence, unless an exercise is conducted by the statutory authority to record a finding that such conditions subject to the fulfillment of which approval has been granted by AICTE are, in fact, fulfilled, admissions cannot be granted in furtherance of the approval. This process of recording the satisfactory fulfillment of the conditions prescribed by AICTE takes time and cannot be completed before the commencement of the admissions process if the approval received from AICTE is on the eve of the commencement of admissions; (ii) Upon the approval by AICTE, institutions are required to obtain affiliation from the concerned University. The process of affiliation takes a few months since it involves inspection by a local Inspection Committee and the consideration of the report of the Academic Council of the 19 University. The process of affiliation, therefore, cannot be conducted and completed if the initial approval of AICTE is received just before admissions are to commence; (iii) In view of the judgments of the Supreme Court, it is impermissible in such a case to grant provisional admissions, thereby putting the career of a large body of innocent students in danger. Several institutions admit students armed with the approval of AICTE and in such cases if affiliation is refused by the University, that would seriously affect the careers of the students; (iv) If additional seats are made available during the admissions process, the students who are already admitted prior to making such additional seats available, do not get an opportunity to claim those seats. As a result of this, the golden rule for the allotment of seats on the basis of merit-cum-choice gets breached; (v) In the event that the seats which additionally become available during the continuation of the admissions process are made available to students who have already been admitted by the time that such seats are made available, the entire process would be thrown out of gear and would get severely disturbed. If students who have already been admitted are allowed to change their admissions, this would set in motion a change which would have a cascading effect destroying the entire admissions process that has already become settled; (vi) The Competent Authority which is incharge of conducting admissions would also be faced with innumerable administrative difficulties when additional seats become available during the admissions process. The distribution of the 20 allotment of seats to various categories including reserved seats is a complex process which has to be conducted not only on the basis of seats available at the College, but also seats available overall in the State. As against the Health Science Courses where admissions are granted to a limited and restricted number of course, in the case of Technical Courses, thee are numerous choices available to students, namely, (i) coursewise choices, there being more than 60 courses; (ii) collegewise choices, there being about 163 colleges; (iii) quotawise choices; (iv) categorywise choices – reserved, open, reserved for women etc.; and (v) institutionwise choices – involving a differential fee structure and affordability of the payment of fees. The state Government has, therefore, submitted that approval should not be granted by AICTE on the eve of the commencement of the admissions process so that no complications would arise. Institutions which get approval either for the first time or for additional courses or, for that matter for additional intake capacity, can wait for the next Academic Year for commencement of that course within which period, requisite statutory approvals and permissions can be obtained. A large number of students seeking admissions to technical courses come from rural areas and the students, their parents and teachers go strictly by what is stated in the admissions brochure. Such students have no access to know, inter alia, about the availability of additional seats. xxxxx xxxxx xxxxx 43. The enunciation of law in Atharva Institute of Management Studies (supra) is in accordance with law. Notifications issued by the Government as well as AICTE specifies the various ingredients essential for maintaining the very object of excellence in education, proper completion of 21 course and adherence to the standards and norms prescribed for infra-structure and amenities. While the Court is granting relief to the Petitioners on equitable ground, it is also desirable that Court keeps in mind that neither the statutory provisions are varied or relaxed in a manner that the object of education would be the casualty. It is much required that in the present day of competitive academics, the standards of education courses and merit cum preference are not given up in favour of mere prayer of the colleges that admission to seats have been denied for want of or co-operation or co- ordination simpliciter between these authorities. This is a matter of common knowledge that every