1 wp4390.09.odt FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No.4390/2009 ( Yogkshem Shikshan Sanstha, Adyal, through its Secretary ..V/s.. State of Maharashtra, through its Secretary + 1 ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P.N. Shende, counsel for petitioner. Ms B.H. Dangre, Add. G.P. for respondent no.1. Mr. B.G. Kulkarni, counsel for respondent no.2. CORAM : D.D. SINHA & F.M. REIS JJ. DATE : 25 th NOVEMBER , 2009 . Heard Mr. Shende learned counsel for petitioner, Ms Dangre Addl. G.P. for respondent no.1 and Mr. Kulkarni learned counsel for respondent no.2. It is the case of petitioner that the application dated 31st October 2007 was submitted by petitioner to respondent no.2 – University to be forwarded to the State for grant of permission to start Senior College of Arts, Commerce and Science for women at village Adyal, Tahsil Paoni, District Bhandara for the academic session 2009 – 2010. Respondent no.2 after following due procedure applicable in this regard taken favourable decision and forwarded the proposal of petitioner to the State Government for necessary order. 2 wp4390.09.odt Learned counsel for petitioner has submitted that the State Government did not communicate its decision to petitioner after receipt of proposal of petitioner. Hence petitioner approached this Court by filing present petition for necessary direction to the State Government to consider the said proposal for grant of permission to start Senior College of Arts, Commerce and Science for women at village Adyal, Tahsil Paoni, District Bhandara for academic session 2010 – 2011. Ms. Dangre, learned A.G.P. has submitted that the proposals were received by the State Government from the University for academic session 2009-2010 and were considered by the State Government. However, the proposals which were accepted by the State Government and in whose favour the permission was granted to start colleges were published in the Government Resolution and the colleges which were not mentioned in the Government Resolution, their proposals were deemed to have been rejected and the University was already directed by the State Government to inform the concerned Society/Mandals accordingly. Mr. Kulkarni, learned counsel for respondent no.2 – University, has submitted that the University has already communicated the decision of the State Government to petitioner in respect of its proposal. This fact has been disputed by the learned counsel for petitioner. We have considered the contentions canvassed by the respective parties. 3 wp4390.09.odt This is really unfortunate that time and gain, the people have to approach this Court seeking direction to the State Government to communicate the reasons, orders passed by State Government on the proposals forwarded by the University in regard to the opening of colleges, in spite of decision of this Court in case of Shetkari Shikshan Prasarak Mandal, Ashti, District Beed V/s. State of Maharashtra and other reported in 2002 (1) Mh.L.J. 814 and in view of the specific observations in paragraphs 31 and 32 which reads thus - “31. In the affidavit filed on behalf of the State Government, it is stated that the State Government has absolute discretion in the matter of grant of approval. In order to magnify this proposition, a reference is made to the provisions of sub-section (5) of section 82 of the Maharashtra Universities Act, 1994 in the affidavit of Dr. Pandurang Keche, who is the Joint Director of Higher Education, Aurangabad. No doubt, the power of absolute discretion is given to the State Government. However, this discretionary power is required to be exercised in a reasonable manner. Absolute discretion does not mean absolute arbitrariness. The very sub-section (5) of section 82 of the Maharashtra Universities Act, 1994 makes it clear that the absolute discretion is to be exercised in the light of what is right and what is proper. Even in case of extreme categories of discretion, the idea of fair play is inherent in the power of absolute discretion. The concept of absolute discretion does not absolve the State Government in each and every case from not giving reasons for its administrative actions. Having of one is necessarily exclusion of another and, therefore, fair play demands some kind of reasons for giving preference to someone. The external actions sometime show internal secrets. In spite of directions of this court given in earlier writ petitions, the State Government has not passed reasoned order. Therefore, we are inclined to quash and set aside the impugned order dated 30-4-2001. It is to be 4 wp4390.09.odt remembered that weak foundation destroys the superstructure. The State Government has not laid a foundation in the form of valid reasons to support the impugned order. Therefore, our interference is justified. Law ought not to fail in doing justice to those with serious grievance. All the petitioners have demonstrated the serious grievance and, therefore, the impugned order dated 30-4-2001 is liable to be nullified. 32. In the result, all the petitions succeed. The impugned order dated 30-4-2001 passed by the State of Maharashtra granting permission to start a new college at Shirur Kasar to Saint Bhagwan Shikshan Prasarak Mandal, Pangari is hereby quashed and set aside. We direct the State Government to transmit back all the proposals to the University forthwith for its fresh consideration. The University, after having made scrutiny of the proposals strictly in accordance with the provisions of law and in full compliance of the observations made by this Court in earlier writ petitions, should submit its recommendations on inter se merits to the State Government before 31-12-2001. The State Government is directed to reconsider the recommendations to be submitted by the Universities afresh and pass appropriate and reasoned order before 31-1-2002.” The State Government neither given any reasons for rejecting the proposal of petitioner which was recommended by the University nor communicated the order of rejection to petitioner. The Division Bench has rightly observed that the reason is sole of administrative action without which the order would a dead letter. Mere communication of the order which does not contain reasons is also inconsistent with the concept of fair play and rationality and would attract arbitrariness and such order would not be sustainable in law. When the application/proposal for opening new college, forwarded by University, rejected by the State Government 5 wp4390.09.odt the order must be reasoned order and the said order must be communicated to the applicant. We direct the Principal Secretary, State of Maharashtra to ensure that this procedure shall be followed in future. In the instant case for the reasons stated herein above and in the interest of justice we direct respondent no.2 – University to reconsider the application/proposal of petitioner dated 31st October 2007 for academic session 2010-2011 in accordance with law and procedure applicable in this regard and if petitioner fulfills the eligibility, then forward it to the State Government accordingly for necessary orders. State Government shall pass an order in accordance with law and communicate the same to petitioner. It is made clear that this order is passed considering the peculiar facts and circumstances of the present case and therefore the order is strictly restricted to the present case. Registrar (Judicial) is directed to communicate our order to the Chief/Principal Secretary State of Maharashtra, Mumbai forthwith. Writ petition is disposed of accordingly. JUDGE JUDGE Tambaskar.