IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP Nos.919 and 1123 of 2008. Date of decision: 24.07.2008. 1. CWP No.919 of 2008. Abhilashi Shiksha Samiti & Another …Petitioners Versus State of H.P. & Others …Respondents 2. CWP No.1123 of 2008. Shanti Education Society …Petitioner Versus State of H.P. & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner(s): Mr.R.L. Sood, Senior Advocate with Mr.Arjun Lall, Advocate and Mr.Rakesh Chandel, Advocate. For Respondents No.1&2: Ms.Ruma Kaushik, Additional Advocate General. For Respondent No.3: Mr.B.C. Negi, Advocate. Dev Darshan Sud,J. Both these writ petitions are being disposed of by a common judgment. The petitioner has challenged the order passed by the respondent-State (Annexure-PV) dated 7th June, 2008 denying permission to the petitioners to start post graduate courses on the ground that:- “No.EDN-A-Chha(7)-47/2008 Government of Himachal Pradesh Department of Higher Education. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 From The Secretary (Hr.Edu.) to the Government of Himachal Pradesh. To The Director of Higher Education, Himachal Pradesh, Shimla-1. Dated: Shimla-2, the 2008. Subject: Regarding issue of NOC for the Introduction of M.Sc Courses in Abhilashi Shiksha Samiti, Ner Chowk, Teh.Sadar, Distt.Mandi. Sir, I am directed to refer to your office letter No.EDN-H(8)A(1) Pvt.D.C.-38/2007-A.E.S.(MN) dated 29th Dec.2007 on the subject cited above and to say that it has been decided in principle that postgraduate course may not be permitted in M.Sc. in subjects in which the organizations does not have experience of running undergraduate courses. The applicant society does not have an experience of running under graduate course in B.Sc. stream. Hence the NOC may not be issued. Yours faithfully, Sd/- Additional Secretary(HE) to the Government of Himachal Pradesh” I have been taken through the pleadings of the parties and the records by the learned counsel appearing for the parties. 3 This letter / communication has been challenged by the petitioner on a number of grounds including the ground that:- (a) No policy has been framed till date; (b) The decision is arbitrary and violates Article 14 of the Constitution of India as there is no rationality behind the order which has been passed and discloses unfettered exercise of discretion by the respondent-State. (c) It is not germane to the object sought to be achieved and even the object has not been stated in the communication nor any policy disclosed. I had called for the file / record which dealt with the matter that is grant of `No Objection Certificate / Recommendation’ for starting Post Graduate Courses by the petitioners. The record shows that the case of the petitioner was favourably recommended by the Director of Higher Education, Himachal Pradesh. A detailed report has been placed on the record showing the availability of facilities and equipment for conducting the courses. Another Notification No.EDN-A-Chh(7)-6/99- Vol.IV-Loose, dated 13th May, 2008 (Annexure R-1), has been placed on the record to show that some policy decision is likely to be taken. This is indeed a strange situation. On the showing of the respondents it was a policy which was to determine the grant of no objection 4 for starting of post graduate courses and yet no policy has been framed and placed before this Court. It is by now well settled that no action can be sustained which is based on unfettered discretion. Reply to this petition, filed by the State, is contrary to the record. Reliance is placed on Annexure- R-1 which is Notification dated 13th May, 2008 noted hereinbefore. It is admitted that no guidelines, pursuant to this Notification, have been framed. The respondents have also been conveniently avoiding reference to the inspection(s) which has been carried out but are inconsistent with the decision (Annexure-PV). How and in what manner the order Annexure-PV protects the rights and interests of the students is not at all explained. There is no manner of doubt that the University-respondent No.3 from whom the petitioner seeks affiliation, would have to consider the parameters as provided in the University Statutes to ensure that affiliation is not granted as a matter of right converting the Educational Institution into a teaching shop but the permission would be strictly in accordance with law and before granting affiliation it shall ensure that adequate and complete facilities residential/non- residential including lecture theaters, class rooms, equipment, library, play ground etc. exists and appointment of qualified staff and a proper selection procedure for appointment of the teaching staff including the other staff etc. is followed and further the Institution 5 remains under the strict supervisory control of the University. Learned counsel appearing for the University submits that in terms of Statute 38.2, the University would only consider the matter after No Objection has been received from the Government. He has referred to Statute 38.6(h)(i) which requires the concurrence of the Government before the case of the Institution can be considered by the University for grant of affiliation. All that need be said for the decision of the present petition is that there is no decision on the record much less a policy decision having been taken by the State to grant / withhold permission for starting educational courses based on some rational grounds or policy. In Parvin Rai and Others vs. H.P. Univeristy and Others, ILR 1983 HP 3 (SC), the Court struck down unfettered power to take a particular action, as arbitrary. In Suman Gupta & Others etc. etc. vs. State of J& K and Others, AIR 1983 SC 1235, the Supreme Court held: “6. For the purpose of these cases, we shall proceed on the assumption that national integration, which is undeniably in itself a highly commendable and laudable objective, will be effectively served by a policy encouraging the admission of candidates of one State to seats in the Medical Colleges of another 6 State. After considering the matter carefully, we confess, we are unable to subscribe to the view that the selection of candidates for that purpose must remain in the unlimited discretion and the uncontrolled choice of the State Government. We think it beyond dispute that the exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason - relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision of this Court in Maneka Gandhi v. Union of India (1978) 2 SCR 621 has laid down in clear terms that Art. 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason. To contend that the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to the unfettered discretion of executive authority is to 7 deny a fundamental principle of our constitutional life. We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether. Proceeding from there it is evident that if the State Government desires to advance the objective of national integration it must adopt, procedures which are reasonable and are related to the objective. In this Age of Reason, all law must measure up to that standard, and necessarily so also must all executive acts. Viewed in this context, the claim of the State Government in these cases that the nature of the objective and the means adopted to serve it entitle it legitimately to vest in itself an absolute power in choosing candidates for nomination cannot be allowed to prevail. It is incumbent on the State Government to adopt a criterion or restrict its power by reference to norms which, while designed to achieve its object, nevertheless confine the flow of that power within constitutional limits. We are not convinced that an adequate system of standards cannot be devised for that 8 purpose. Tested on the touchstone of our constitutional values, the claim of the State Government to the content of the power assumed by it must, in our opinion, be declared invalid.” (emphasis supplied) To similar effect is the judgment of Supreme Court in Surendra Kumar vs. State of Bihar & Others, AIR 1985 SC 87, wherein the Supreme Court further expressed its dismay in the manner in which un-canalized powers were being exercised by the State Government. It observed: “2. We desire to add by way of expression of our concern and regret that this is not the first occasion that such interference and abuse of power at such high level has come to the notice of this Court from the State of Bihar. In Chandrika Jha vs. State of Bihar (1984)2 SCC 41: (AIR 1984 SC 322), it related to the constitution of Board of Directors of a Co-operative Society; here it relates to nomination of candidates for admission to Medical Colleges. But in both there is clear misuse of power. The less said the better” Learned counsel appearing for the petitioner places reliance on the judgment of the Supreme Court in Punjab Water Supply & Sewerage Board vs.Ranjodh Singh and Others, (2007)2 SCC 491, holding that: 9 “10. … … … … A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules. 19. … … … … … It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires.” He submits that letter Annexure-PV cannot be considered to meet the requirement of Article 166 of the Constitution and places reliance on Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS and Another, (2006)7 SCC 188, in which the Court held: “13. … … … … … The letter on which great emphasis has been laid by Respondent 1 and highlighted by the High Court, the authority to write the letter has not been indicated. It has 10 also not been established that the person was authorized to take a decision. In any event, the same does not meet the requirements of Article 166 of the Constitution. The letter is not even conceptually a notification. The High Court was, therefore, not justified in holding that there was a notification rescinding the earlier notification.” The principle of law relied upon by the petitioner, is well settled in view of the judgments of the Supreme Court. Learned counsel for the petitioner is correct when he contends that the impugned order / communication cannot be construed to have been issued under Article 166 of the Constitution of India. The principles of law relied upon are by now well settled. As I have held, that barring the letter Annexure-PV there is nothing on the record of this case or in the file which was summoned, to show that there is any power / source or authority in the respondents to have issued this letter. Moreover, no norms / guidelines have been made. The communication cannot be considered as having been issued under Article 166 of the Constitution of India. Annexure-PV can be described as nothing less than arbitrary and in violation of Article 14 of the Constitution of India, placing an unconstitutional restriction on the right to the 11 petitioner. If the State is so serious regarding protection of the interest of students and preventing people / organizations from opening teaching shops, surely a rational policy or rules etc. should have been framed by now. The respondents also ignore that the University which is the affiliating body is itself exercising stringent control over teaching institutions affiliated to it. These writ petitions are accordingly allowed. Annexure-PV is quashed and set aside as being arbitrary, unconstitutional and violative of the principles enshrined in Article 14 of the Constitution of India. A direction is issued to respondents No.1 and 2 to consider and decide the case of the petitioners not later than two weeks from today. There shall be no order as to costs. July 24, 2008. (Dev Darshan Sud) (aks) Judge.