:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION (L) NO.1848 OF 2008 PETITION (L) NO.1848 OF 2008 PETITION (L) NO.1848 OF 2008 1. Late Shri Meghrajaji Ojha Smruti Shikshan Sanshta, Giri Peth, Nagpur-10 Through its Secretary Shri Ramkrishna Motila Ojha Age 41 2. Shri Sainath Pharmacy College, Survey No. 46, Dawalameti Nagpur 16 Through its Principal Dr. Vinita Kale, Age 43 years ..Petitioners V/s 1. State of Maharashtra 2. Director of Technical Education Maharashtra State, Mumbai 3, Mahapalika Marg, Opp. Metro Cinema Mumbai- 400001 ..Respondents WRIT WRIT WRIT PETITION (L) NO.1849 OF 2008 PETITION (L) NO.1849 OF 2008 PETITION (L) NO.1849 OF 2008 1. New - Era Education Society Registered office : d-436 ’clover centre’ 7- Moledina Road, Camp, Pune 411001 (Through its Secretary Prof. Sultan Shaikh) 2. Apex Institute of Management Survey No. 59, Undri Pune 28 (Through its Founder Director Sultan D. Shaikh) ..Petitioners V/s 1. State of Maharashtra :2: 2. Director of Technical Education Maharashtra State, Mumbai 3, Mahapalika Marg, Opp. Metro Cinema Mumbai- 400001 ..Respondents Mr. A.V. Anturkar, Sr.Advocate for the petitioners Mr. M.D. Naikh, AGP for the respondents CORAM CORAM CORAM : : : SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : 5TH AUGUST, 2008 : 5TH AUGUST, 2008 : 5TH AUGUST, 2008 ORAL ORAL ORAL JUDGMENT ( PER SRI R.M.S. KHANDEPARKAR, J.) JUDGMENT ( PER SRI R.M.S. KHANDEPARKAR, J.) JUDGMENT ( PER SRI R.M.S. KHANDEPARKAR, J.) 1. As the common question of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment. 2. Heard. 3. Rule. By consent, rule is made returnable forthwith. Mr. Naik, learned AGP waives service on behalf of the respondents. 4, The petitioners in both these petitions are educational institutions and the petitioners in Writ Petition (L) No. 1848/2008 are seeking to start course in Pharmacy, and those in Writ Petition (L) :3: No. 1849/2008 are seeking to start the course in Management. Apart from the difference in the Courses which the petitioners seek to commence, the facts in both the petitions are common. The petitioners approached the All India Council for Technical Education for the purpose of obtaining letter of approval in terms of provisions of law comprised under All India Council for Technical Education Act, 1987. Vide Letter dated 25-7-2007 and 21-7-2007 All India Council for Technical Education granted letter of approval to the respective petitioners with intake capacity of 60 students to the each of the respective courses. The respondent N2.2 has prepared time table for completion of the admission process to such courses and according to the programme regarding admission process published by the respondent, the admission process would be completed by 22nd August, 2008. The petitioners on obtaining letter of approval from All India Council for Technical Education had approached the respondents to include the petitioners’ institutions for the purpose of such admission process. However, respondents refused to accede to the request of the petitioners. Therefore, the petitioners have filed the present petitions, :4: whereby the petitioners are seeking direction to the respondents to allow the students to the petitioners’ institution and not to refuse the allotment of students to the petitioners’ institution, on the ground that of letter of approval was given to the institution after 30th June, 2008. 4. The facts as stated above are not in dispute. It is, however, the contention on behalf of the respondent that apart from the fact that the letter of approval had been issued by All India Council for Technical Education after 30th June, 2008 and therefore, considering the decision of the Division Bench of this Court in Yerla Medical Trust Research Yerla Medical Trust Research Yerla Medical Trust Research Centre Centre Centre and others V. State of Maharashtra and others V. State of Maharashtra and others V. State of Maharashtra, reported in 2006 Bom. C.R. 701 even the conditions enumerated under the approval letter are not satisfied. In that regard the attention is sought to be drawn to clause 2 (a) of the conditions enlisted in the said approval letter which provides that the admission shall be made only after adequate infrastructure and all other facilities are provided as per norms and guide-lines of the AICTE and clause 2 (c) is to the effect that the admissions to the :5: courses shall be made only after the affiliating University/State Board has given permission to start the course. 5. The learned Council appearing for the petitioner however, has drawn our attention to section 10(i),(j) and (k) r/w section 2(g) of All India Counsel for Technical Education Act, 1987 and has placed reliance in the decision in the matter of State State State of Maharashtra V. Sant Dnyandeshwar Shikshan of Maharashtra V. Sant Dnyandeshwar Shikshan of Maharashtra V. Sant Dnyandeshwar Shikshan Shastra Shastra Shastra Mhavidyalaya and others Mhavidyalaya and others Mhavidyalaya and others, reported in (2006) 9 S.C.C.1 as well as in the matter of Guru Nanak Guru Nanak Guru Nanak Eduction Eduction Eduction Society and others V. The State of Society and others V. The State of Society and others V. The State of Maharashtra Maharashtra Maharashtra and others and others and others in Writ Petition No.3423 of 2007, delivered on 31st August, 2007 as well as in the matter of Late Smt. Hanjabai Gahlot charitable Late Smt. Hanjabai Gahlot charitable Late Smt. Hanjabai Gahlot charitable Trust, Trust, Trust, Navi Mumbai, & Anr V. State of Maharashtra Navi Mumbai, & Anr V. State of Maharashtra Navi Mumbai, & Anr V. State of Maharashtra and and and others, others, others, in Writ Petition No.5538 of 2006, delivered on 18th August, 2006 and has submitted that once the AICTE grants the approval, the clause relating to the to need for affiliation to the Maharashtra University is not attracted and therefore, the respondents could not have refused to accede to the request of the petitioners to consider :6: the petitioners’ institute for the purpose of admission of the students to Pharmacy and Management courses for the academic year 2008-09. Drawing our attention to the approval letter dated 22-7-2008 he further submitted the approval was granted based on the recommendations of the Expert Committee and E.C. Sub-committee and that such Committees include members on behalf of the State Government and hence, there was substantive compliance even of the requirements contemplated under the provisions of Maharashtra University Act and being so, there is no justification to refuse to consider the institution of the petitioners for the purpose of admission to the students of Pharmacy and Management for the current academic year. He further submitted that there is no time limit proscribed for grant of approval by AICTE and considering the fact that the application for necessary approval was made by the petitioners prior to 1st January, 2008, mere inaction on the part of the concerned authority to issue necessary letter of approval prior to 30th June, 2008 could not be a justification for refusal to allot the students in the petitioners’ institution for the said courses for the current academic year. :7: 7. The provisions of law comprised under section 10 of AICTE Act clearly speak of the functions of the Council and relevant provisions therein provide that it shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated developmental technical education and maintenance of standards and for the purposes of performing its functions under the said Act.The Council may lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations, fix norms and guide-lines for charging tuition and other fees, to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned to provide guide-lines for admission of students to technical institutions and Universities imparting technical education, inspect or cause to inspect any technical institution, declare technical institutions at various levels and types offering course in technical education fit to receive grants as also advice the Commissioner or declaring any :8: institution imparting technical education as a deemed University etc. 8. Section 11 of the AICTE Act deals with the subject of inspection for various purposes and for due compliance of functions of Council under the Act. Sub-section (1) thereof provides for the purposes of ascertaining the financial needs of a technical institution or a University or its standards of teaching examination and research, the Council may cause an inspection of any department or departments of such technical institution or University to be made in such manner as may be prescribed and by such person or persons as it may direct. Sub-section (2) provides that the Council shall communicate to the technical institution or University the date on which any inspection under sub-section (1) is to be made and the technical institution or University shall be entitled to be associated with the inspection. 9. Section 2(g) of the said Act defines term "technical education" means programme of education, research and training in engineering technology, architecture, town planning, management, pharmacy and :9: applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare. The expression "technical institution" has been defined under section 2(h) means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institution. 10. The provisions of said AICTE Act therefore, clearly provides that the functions to be performed by the Council constituted under the said Act and such functions includes not only the power but to lay down the norms, standards for courses and for maintenance of necessary qualities in the institutions, as well as guide-lines for admission, examination,it also includes power to grant approval for commencement of new technical institution as well as to advise to commission to declare any such institution to be a deemed University. The power includes also to inspect such technical institution :10: as well as to withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuing compliance of the directions of the council. 11. Section 23 of the said AICTE Act empowers the Council to make regulations not inconsistent with the provisions of this Act, and the Rules generally to carry out the purposes of the said Act and sub-section (2) thereof specifically provides that such regulations may relate to the area of the concern, the constitution, and power and functions of the Board of Studies as also regulating the meetings of Council and procedure for conducting the business thereof, regulating the meetings of the Executive Committee and the procedure for conducting business thereat. Undisputely the Council has formulated such regulations and functions in relation to the procedure to be followed for the purpose of considering the application for grant of approval and in terms of any book published in that regard by the :11: Council in terms of clause 4.3.4 deals with the issue of letter of intent whereas the clause 4.3.5 deals with issue of letter of approval and those clauses reads thus:- "4.3.4.- Based on the recommendations of the Hearing Committee,the AICTE may issue letter of intent (LOI) within 7days from the date of Hearing Committee meeting, which shall be valid for three years from the date of issue of LOI during which time, the applicant Society/Trust shall obtain Letter of Approval (LOA) from the Council after fulfilling the norms and standards and other conditions prescribed from time to time. On expiry of 3 year duration, the Applicant/Society/Trust shall make a fresh Proposal for issuance of Letter of Intent. In cases where Letter of Intent is denied from non-fulfilment of norms and standards and conditions as may be stipulated by the Council, the Applicant Society/Trust shall be informed along with grounds of denial. The Applicant Society/Trust may seek reconsideration of the proposal after rectifying the deficiencies.Such claims shall be verified, at the cost of the Applicant Trust/Society. The requests for reconsideration of the proposal along with the fee of Rs. 40,000/- shall be submitted to the concerned Regional Office of the Council. The requests of reconsideration received from the Applicants shall be forwarded by the concerned Regional Office to the AICTE HQs at New Delhi within 15 days from the date of receipt, which will be placed before the Hearing Committee for reconsideration at its next meeting. :12: However, the Applicant Society/Trust shall be eligible to seek reconsideration only once. In case the proposal is rejected by the Hearing Committee again the Applicant Trust/Society shall be required to make a fresh Proposal for issuance of Letter of Intent. In case the Applicant Society/Trust dispute the decision of the Council, it may appeal to an Appellate Committee constituted by the Chairman AICTE from time to time with the following members; An educationist/academician of repute as Chariman. Director of IIT/NIT/IIm* (8for Management Proposals) Vice Chancellor of a University Adviser (AICTE+ as covener The Appellate Committee shall meet as required. Based on the recommendations of the Appellate Committee and other relevant information, a final decision shall be taken by the chairman AICTE on grant of Letter of Intent or otherwise. In case the proposal is rejected by the Appellate Committee, the applicant/ society/ trust may make a fresh Proposal for issuance of Letter of Intent." "4.3.5.-The applicant Society/Trust to whom a Letter of Intent has been issued shall be required to make an application to the Council, within two months from the date of issue of Letter of intent (LOI), conveying its readiness for Expert Committee visit along with the following documents; 1) A Non refundable processing fee of Rs. 50,000/- drawn in favour of the "Member :13: Secretary, AICTE" payable at New Delhi ( Government Institutions and Govt.. Universities are exempted). 2) A Joint Fixed Deposit created for a period of 8 years in favour of the President/Chairman of the Applicant Society/ Trust and the concerned Regional Officer of AICTE for an amount as applicable to the category of the institutions indicated below (Government and Government Aided Institutions and Govt. Universities are exempted). Category of Institution Joint fixed Deposit Engineering & Technology Rs.35.00 Lakhs Pharmacy/HMCT/Architecture Planning/Applied Arts/ & Crafts/MCA/MVA/PGDM/PGCM Rs.15.00 Lakhs The original Joint Fixed Deposit receipt shall be kept under the custody of the proposed institution. A copy of the Joint Fixed Deposit receipt shall be submitted to the concerned Regional Office of the AICTE along with an affidavit on non judicial stamp paper of prescribed value stating that the Joint Fixed Deposit shall not be encashed or modified without prior consent of AICTE. The Regional Officer AICTE shall also instruct the concerned Bank not to allow any encashment/modification of fixed deposit and grant of loan against the deposit without the prior consent of AICTE. The interest accrued on the fixed deposit shall be credited to the concerned institution on yearly basis and shall be utilised for award of scholarships to the students. The Joint Fixed Deposit hall be permitted to be encashed on expiry of the terms of the Fixed Deposit. However, the term of the fixed deposit could be extended for a further period as may be decided on case to case basis and/or forfeited in case of any violation of norms, :14: conditions and requirements and/or non-performance by the institution and/or complaints against the institution. The processing fee and the Joint FDR amount for Minority Institutions may be reduced by 20% An Expert Committee shall visit within 15 days from the date of intimation of readiness from the Applicant Society/Trusts, the proposed premises of the institution on payment of requisite processing fee by the applicant Society/Trust and examine the preparedness of the institution to impart quality education as per the norms and standards and conditions prescribed by technical from time to time. The Expert Visiting Committed shall comprise of the following members: Three Expert members not below the level of Associate Professor/Reader nominated by the Chairman, AICTE Expert members one each not below the level of Associates Professor/Reader to be nominated by the State Govt. and the respective Affiliating University. Concerned Regional Office or an Officer of the Council as convener to be nominated by the chairman AICTE. The Expert Committees shall be headed by an academician/professional of repute fro the above committee. The State Govt./University shall be requests to nominate expert members not below the level of Associate professor/Reader to participate in the visit. However, if no nomination is received within 15 days, the Council shall complete the visit without the nominees. of the State Govt. University. :15: The applicant institution/trust/society shall be required to make available the following original documents/necesary information to the Visiting Expert Committee as per details in the Expert Committee Report format. 1. A copy of the Proposal submitted to AICTE 2. The Letter of Intent, in original 3. A copy of DPR 4. A copy of the Joint Fixed Depose along with the copy of affidavit submitted to the Conceal 5. Society/Trust Registration documents indicating members of the Society/Trust and its objectives. 6.Minutes of the Meeting of Society/Trust pertaining to proposed institution and allocation of the land/building funds etc. 7. Original Land Documents. 8. Village Map/Location Map/Topo Graphic Sketch/City Road Map. 9. Original Land Use Certificate/Land Conversion Certificate, allowing the land to be used fro educational purpose. 10. Original approved Building Plan. 11. Details of built up structure available exclusively for the proposed institute at the permanent site. 12. Architectural Drawing of building construction duly prepared by an Architect and approved by the concerned statutory authority. 13. Master Plan of the Campus for the entire land indicating land-use, circulation, landscaping, infrastructure etc. :16: 14. Floor Plans, Sections and Elevations of all existing Academic building including Area details. 15. Phase-wise Plan of construction. 16. Proof of sanction of required electrical loan. 17. List of equipment required as per syllabus and equipment available. 18. Stock Register of Equipment / Computers/ Software. 19. Accession Register for Library Books. 20. Copy of Invoice/Cash Memo for equipments and library Books. 21 Copy of the advertisement for recruitment of rector/Principal/faculty members. 22. List of candidates applied, called and attended the interview. 23. Composition and proceedings of Selection Committee. 24. Minutes of Selection Committee for Faculty. 25. List of faculty appointed/identified with qualification and expertance 26. Letter of appointment/offer Letters issued to director/Principal/Faculty. 27. Details of Bio-data of Principal/Director. 28. Joining report of the Principal/Director. 29. One page bio data with passport size photographs of the identified/apointed faculty members. :17: 30. Joining report of faculty member appointed/consent letter of identified faculty. 31. Details of the appointment of supporting and administrative staff.’ 32. Acquittance Register, if any. 33. Fund position/Original FDR and Bank Certificate/Statement. 34. Cash Book of the Society/Trust." The regulations in this regard apparently disclose that after issue of letter of intent the applicant has to again approach the Council for obtaining necessary letter of approval and before grant of such approval an Expert Committee has to visit the premises wherein the applicant intents to establish the institutions and such Expert Committee shall include Associate Professor/Reader nominated by the Chairman of the Council, Expert members, one each not below the level of Associate Professor, Reader nominated by the State Government and respective Affiliating University, the concerned Regional Officer or an officer of the Council as convener to be nominated by the Chairman of the Council. It is only after the necessary inspection of the premises wherein the institution is intended to be used by the :18: applicant and after submission of the report by such Expert Committee and consideration thereof, the Council may grant or refuse the approval. In the case in hand undisputely the letter of approval on the face of it discloses that the approval has been granted to the petitioners only after taking into consideration the recommendations of the Expert Committee and Sub-Committee. This obviously discloses that the necessary procedure which was required to be complied with by the applicant and the AICTE has been complied with before grant of letter of approval to the petitioners. 12. It cannot be disputed that the letter of approval contains the following conditions; (a) That the admission shall be made only after adequate infrastructure and all other facilities are provided as per norms and guide-lines of the AICTE and the necessary admission to the courses shall be made only after the affiliating University/State Board has given permission to staff the course. 13. In the case in hand it is not the case that :19: the petitioners do not have the necessary infrastructure or are lacking any other facility as per the norms and gudelines of AICTE. In the absence of any material being placed on record on this aspect, we fail to understand the hesitation on the part of the respondent to accede to the request made by the petitioners for consideration of the petitioners’ institutions for grant of admission to the students for the courses which the petitioners intent to commence for the academic year 2008-09. 14. As regards the conditions regarding the grant of affiliation by the University as rightly pointed out by the learned Counsel for the petitioners that such requirement is not mandatory requirement in view of the decisions of this Court and approved by the Apex Court in State of Maharashtra V. State of Maharashtra V. State of Maharashtra V. Sant Sant Sant Dnyaneshwar Dnyaneshwar Dnyaneshwar (Supra) (Supra) (Supra). 15. It is true that the approval has been granted to the petitioners on 22/7/2008, after 30th June, 2008. However, it is to be noted that the applications for necessary approval by the petitioners were made prior to 1st January, 2008. In :20: other words as far as petitioners are concerned, there was no lapse on the part of the petitioners in approaching the concerned authority for grant of necessary approval. If in the process of dealing with such applications, there has been some delay on the part of the Competent authority for grant of necessary approval, on such approval having been granted much prior to the completion of the admission process to such courses, we fail to understand the hesitation on the part of the respondent to accede to the request of the petitioner to consider the petitioners institution for the purpose of process of admission to the students for the academic year 2008-09. It is not in dispute that the petitioners have made all the necessary facilities available in terms of the requirement of law and guide-lines laid down by the AICTE and being so, merely because the letter of approval on the part of AICTE was issued after 30-6-2008, in the peculiar facts and circumstances before us, we do not find any justification for hesitation on the part of the respondent to consider the petitioners request to include the petitioners’ institutions for the process of admission to the students to the course of :21: Pharmacy and the Management for the academic 2008-09. In the facts and circumstances of the case therefore, we find that the petitioners have made out the case for grant of necessary relief asked for, albeit subject to payment of necessary fees and the steps to be taken by the institutions for completion of admission process in relation to the students to be admitted to the petitioners institutions and in that regard to follow the direction in terms of the judgment in the matter of Writ Petition NO.5538/2006 delivered on 18th of August, 2006. The petitioners in each of the petition will be required to deposit sum of Rs.