IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.2948/2008 Reserved on: 3.7.2009 Decided on:12.8. 2009 Himachal Pradesh Nizi Vyavsayik Prishikshan Kenrda Sangh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, A.C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. Advocate General and Mr.P.M. Negi Deputy Advocate General. Per Rajiv Sharma, J. The present petition has been filed by the association of the Vocational Training Centres (VTCs) through its President. The necessary resolution was passed by the association authorizing the President to file the present petition on 19.11.2008. The petitioner’s association is seeking direction to the respondents to hold admission test for admitting the students in State Council for Vocational Training courses for the session 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2007-08 and also to consequently sponsor the candidates to the Vocational Centres approved by the State Council for Vocational Training. Mr. Shrawan Dogra, Advocate appearing on behalf of the petitioner has strenuously argued that once the institutions represented by the petitioner’s association have been permitted to run the vocational courses, the State Government is estopped from changing the rules in the middle of the game. In other words, his submission is that once the members of the petitioner’s association have spent huge amount for opening the vocational centres as per the norms prescribed by the State Government, it is incumbent upon the State to hold admission test and thereafter sponsor the candidates to the members of the petitioner’s institution. He then argued that the committees constituted by the State Government have already inspected the premises of the members of the petitioner’s association and had recommended various courses, including Art and Craft, Physical Training Instructor, Library Science and Ayurveda Pharmacist, on the basis of the infrastructure and wherewithal,. He lastly contended that the action of the State Government not to permit the members of the petitioner’s association in Art and Craft, Physical Training Instructor, Ayurveda Pharmacist and Library Science is arbitrary. Mr. P.K. Sharma, learned Additional Advocate General and Mr.P.M. Negi, Deputy Advocate General have supported the various decisions of the State Government on the ground that it is the duty cast upon the State Government to ensure quality education. We have heard the learned counsel appearing on behalf of the parties and have gone through the pleadings carefully. The Government of India has appointed a committee called ‘the National Trade Certificate Notification Committee’ on the basis of the recommendations of the All India Council for Technical Education in the 3 year 1951. The recommendations made by the committee were accepted by the Central Government. The Central Government in consultation with the State Government constituted a body called “National Council for Vocational Training” (NCVT) in the year 1956. The National Council for Vocation Training has to discharge the following functions: 1. “establish and award National Trade Certificates in engineering, building, textile and leather trades and such other trades as may be brought within its scope by the Government of India; 2. prescribe standards in respect of syallabi, equipment, and scale of accommodation, duration of courses and methods of training; 3. arrange trade tests in various trade courses and lay down standards of proficiency required for a pass in the examination leading to the award of National Trade Certificate; 4. arrange for ad hoc or periodical inspections of training institutions in the country to ensure that the standards prescribed by the council are being followed; 5. recognize training institutions run by government or by private agencies for purposes of the grant of National Trade Certificates and lay down conditions for such recognition; 6. co-opt, if necessary, any person or persons to advise the council in connection with its work; 7. prescribe qualification for the technical staff of training institutions; 8. prescribe the standards and conditions of eligibility for the award of National Trade Certificates; 9. generally control the conditions for the award of National Trade Certificates; 10. recommend the provision of additional training facilities wherever necessary and render such assistance in the setting up of additional training institutions or in the 4 organization of additional training programmes as may be possible; 11. advise the Central government regarding distribution to State Governments of the contribution of the Government of India towards expenditure on the Craftsmen Training Scheme; 12. perform such other functions as may be entrusted to it by the Government of India; 13. perform such functions as are assigned by or under the Apprentices Act, 1961.” The State Government has also constituted State Council called “State Council for Vocational Training”. The State Council for Vocational Training has to discharge the following functions: 1. “to carry out the policy of the National Council with regard to the award of National Trade Certificates in engineering and non-engineering trades as may be brought within its scope by the Central or State government; 2. to implement the decision and carry out the policy laid down by the National Council in respect of syllabi, equipment, scale of accommodation, duration of courses and method of training; 3. to establish State Board of Examination in Vocational trades; 4. to arrange for ad hoc or periodical inspection of the training institutes/centres in the State and ensure that the standards prescribed by the National Council are being followed; 5. to co-opt, if necessary, any person or persons to advise the State Council in connection with its work; 6. to ensure that the staff is employed according to the qualifications prescribed by the National Council and relax qualifications in special circumstances to be recorded, for trades where such staff is not easily available; 5 7. to ensure that the examinations are conducted by the State Board of Examinations according to standards and the manner prescribed by the National Council; 8. to counter-sign and issue the National Trade Certificates to successful candidates; 9. to recommend the provision of additional training facilities, wherever necessary, and render such assistance in the setting up of additional training programmes as may be necessary; 10. to advise the State Government regarding expenditure on different raining schemes; and 11. to perform such other functions as may be entrusted to it by the State Government”. The State Government has come out with a Technical Education Policy (Annexure P-4). The wholesome principle for preparing the Technical Education Policy is to encourage private sector participation in establishment of new world class technical institutions in emerging areas of Engineering/Technologies and also to strengthen industry institutes interaction for enhancing employability of Himachali youths. The State Government has welcomed the participation of the private sector as per the Technical Education Policy. The department of Technical Education has framed the guidelines for the vocational training centres (Annexure P-5). The procedure for admission has been stipulated in para 2.3. Para 2.6 deals with academic session. Para 4.2 deals with the mechanism under which the committee has to be constituted by the Director, Technical Education for the purpose of inspection. In furtherance to achieve the importance visualized in the Technical Education Policy and the guidelines Annexure P-5, the State Government permitted the private participation in setting up of the vocational training centre in the State of Himachal Pradesh. The letters of intents were issued in favour of the members of the petitioner’s association permitting 6 them to run various courses, including Art and Crafts, Hotel Management, Ayurveda Pharmacist, Physical Training Instructor, Library Science etc. The Director of Technical Education had been issuing admission notices like Annexure P-7 for admission to vocational courses under the State Council for Vocational Training for the session 2007-08. The members of the petitioner’s association have spent considerable amount in building infrastructure for running the various educational courses under the umbrella of the State Council for Vocational Training. These institutions were issued letters of intents and approval by the State Government after ensuring due compliance with the guidelines issued vide Annexure P-5. A decision was taken in the proceedings of the 9th meeting of State Council for Vocational Training on 27.4.2006 to encourage private sector to open more vocational training centres in the State and Industrial Training Centres. It was also decided that in certain courses in which large number of trainees have been admitted may not be permitted and in its place new courses as per the demand of market/industry be started. Similarly, in the proceedings of 10th meeting of State Council for Vocational Training held on 21.8.2007, it has been decided to renew the affiliation of existing institutions numbering 112 and to give approval to open new Vocational Training Centres numbering 116. However, despite the endeavour of the State Government to promote and encourage the participation of the private sector, the State Government has not given permission to the institutions to run the vocational courses for the academic session 2007-08. The members of the petitioner’s association made representations to the State Government to do the needful. The respondent-State has taken a stand in the reply that the institution established must fulfill the requirements of the norms and 7 guidelines of various apex bodies like All India Council for Technical Education, Pharmacy Council of India, National Council for Vocational Training and State Council for Vocational Training. It has also been averred in the reply that the whole issue of admission to vocational training centres was taken up in the Cabinet meeting on 25.11.2008 and consequently the decision was taken vide Annexure R-1 dated 19.12.2008. The text of letter dated 19.12.2008 reads thus: “I am directed to refer to the subject cited above and to say that the State Government has carefully considered the matter relating to admission to SCVT affiliated Courses and after consideration has taken the following decisions:- 1. Institutes running Art & Craft,P.T.I and Library Science Courses may be asked to obtain recognition from the NCTE, Education Department to also ensure that no other private institute functioning in the territory of H.P. will run these courses without the approval of NCTE and withdraw their recognition if found violating. 2. The Ayurveda Pharmacist course be permitted only after NOC of the Ayurveda Department and approval of Central Council for Ayurveda. Ayurveda Department be associated at the time of inspection, formulation of syllabus and examination. The Institutes should also make arrangement for providing training in consultation with the Department of Ayurveda. 3. Following courses be permitted only after NCVT approval. i) Pump Operation & Maintenance ii) Motor Winding & Electric Wiring iii) Beautician iv) Multi Purpose Mechanic (Electronics & Electrical) 8 v) Light Motor Vehicle Driver-cum-Maint. Mech.-LMV vi) Plumbing & Sanitation 4. Following courses be permitted to start after associating the Department concerned for the purpose of inspection, syllabus and examination etc. i) Mass Communication ii) Hotel Management & Hospitality Services iii) Tourism & Travel iv) Marketing & Advertising v) Textile Technician vi) Textile Printing & Dyeing 5. All institutes be inspected again as per the norms prescribed with regard to staff, infrastructure and syllabus, etc. as per the revised proforma finalized in the meeting chaired by Chief Secretary on 22.11.2008 by a team of Officers of the Department of Technical Education and the concerned Departments having expertise in that field. This Committee will ensure that the norms are met and will be responsible for any shortcoming found later on. 6. Seats remaining vacant after first counselling of 85% for Himachali bonafide be allowed to be filled up from outside Himachali candidates. 7. Counselling for admission to various courses being run by the institutes be done by the Institutes at their own level as per the procedure to be prescribed by the Department.” You are, therefore, requested to take immediate necessary action accordingly. The implementation report may be sent to this Department within 7 days positively.” 9 The petitioner’s association filed detailed rejoinder to the reply filed by the respondent-State. It is, inter alia, averred in the rejoinder that the few members of the association had approached the National Council for Technical Education as well as Central Council of Indian Medicines seeking clarification whether it was necessary to seek approval by these institutions for running Art and Crafts, Physical Training Instructor and Ayurveda Pharmacist courses. The Court directed the learned Additional Advocate General on 28.5.2009 to seek instructions from the State as to what was the stand of the Government with regard to holding of examination for these institutions. Thereafter the Court passed the following order on 18.6.2009: “Heard learned counsel for the parties. On 28.5.2009, this court was pleased to direct that the learned counsel for the respondents shall obtain instructions regarding holding of examination for the petitioners institutions. During the course of the arguments, learned Deputy Advocate General has submitted that the Director of Technical Education H.P. has informed that the matter of conducting the examination by the petitioners institute is in active consideration by the State Government and outcome of the same is yet to come and for that purpose six weeks time may be granted. However, learned counsel for the petitioner has submitted that the matter may kindly be listed at the earliest. In view of the above submission, the matter be listed on 29th June, 2009. Liberty to mention.” The learned Additional Advocate General informed the Court on 29.6.2009 that the relevant affidavit was proposed to be filed within three days. Thereafter the supplementary affidavit was filed by the State Government on 2.7.2009. It is borne out from the contents of the 10 supplementary affidavit that the State Government had inspected 144 institutions and cases of 110 institutions were turned down. In fact, the State Government had constituted eight teams to inspect the premises of all the Vocational Training Centres in the State of Himachal Pradesh. The matter with regard to final decision regarding 144 institutions was to be put up before the Government as per letter dated 27.6.2009. The judgment was reserved on 3.7.2009. Thereafter the State Government filed CMP No. 4625/2009 to permit it to place on record copy of letter dated 3.7.2009. Mr. P.K. Sharma, learned Additional Advocate General has brought to the notice of the Court that on 18.7.2009, the Cabinet has taken certain decision regarding State Council of Vocational Training courses in the State of Himachal Pradesh. This decision was not placed on record by the respondent-State. Thereafter the State has filed additional affidavit on 21.7.2009 to take on record Annexure R-1 dated 18.7.2009. It is contained in this affidavit that the Cabinet has not approved running of Art and Craft, Library Science and Physical Training Instruction courses. However, regarding the course of Ayurveda Pharmacist, the same was left to be decided by the Ayurveda Department as per its norms. The members of the petitioner’s association have been granted affiliation by the State Government for running various courses, including Art and Craft, Library Science, Physical Training Instruction and Ayurveda Pharmacist etc. as per the material placed on record. These institutions have been issued letters of intents. The State Government had conducted the test for admission to these Vocational Training Centres. These institutions have fulfilled the norms prescribed by the State Council for Vocational Training as well as the guidelines Annexure P-5. The institutions have raised necessary wherewithal to run the courses. In 11 normal circumstances these institutions were permitted to run the courses for which the approval/affiliation was granted by the State Government. However, due to the decision taken by the Cabinet on 25.11.2008 which culminated in the issuance of Annexure R-1 dated 19.12.2008, it was made compulsory for the institutions running Art and Craft, Library Science and Physical Training Instructor courses to obtain approval of National Council for Vocational Training and other apex bodies. The institutions running Ayurveda Pharmacist course were to be permitted to run the course only after the approval from the Central Council for Ayurveda. The State Government, as noticed above, had constituted eight committees to inspect the premises of all the institutions to ensure whether it conforms to the norms prescribed by the State Council for Vocational Training and the guidelines Annexure P-5. The committee had rejected cases of 110 institutions. In other words, it has decided to grant approval to the 144 institutions. The recommendations made by the Department on the basis of the recommendations/observations of the select committee have been annexed with the petition as Annexure R-1. A bare perusal of the recommendations/observations reveals that it has recommended Art and Craft, Physical Training Instructor. Library Science and Ayurveda Courses subject to the ‘No Objection Certificate’ from the National Council for Technical Education etc. as per decision dated 19.12.2008. However, now the Cabinet has taken a diametric opposite stand. The earlier decision of the Cabinet was that the institutions running Art and Craft, Physical Training Instructor, Library Science and Ayurveda Courses will be permitted to run the courses after the approval/No Objection Certificate by the apex bodies. Cabinet on 18.7.2009, has decided not to accord approval to these courses. It is true that the 12 Cabinet is not required to assign reasons why it has adopted a particular course. However, it was necessary for the respondents to convey the reasons to the Court to enable it to effectively adjudicate upon this petition in the supplementary affidavit. Anybody who decides anything having civil or evil consequences must assign reasons. The reasons may not be very elaborate, but the same must reflect due application of mind. Transparent and reasons based decisions definitely promote accountability in a democracy. The power is coupled with the duty to take a decision in a just and fair manner. The citizens must know why decision has been taken adverse to their interests by a particular body. In case the citizens are made aware of the reasons, it will leave the window open for them to improve their case. The decision in opaque manner breeds uncertainty. There has to be precision and accuracy in the decisions taken by the highest bodies leaving as far as possible no scope for ambiguity. The State Government is free to formulate its policy/laws. It is, however, equally settled that while deviating from the earlier policy, there is no violation of Article 14 of the Constitution of India. The members of the petitioner’s association have been permitted to run the institutions for Art and Craft, Physical Training Instructor, Library Science and Ayurveda Courses etc. and there was no mandatory requirement at that time to seek the No Objection Certificate of the apex bodies. This decision was taken only on 25.11.2008. This decision has also been deviated in the decision dated 18.7.2009. There should be consistency in the policy matters of the State Government as well. The consistency is one of the facets of the rule of law. The citizens must know the stand of the State Government in explicit manner to run their affairs efficiently. The condition of getting the approval from the apex body was taken on 25.11.2008. Mr. P.K. Sharma, 13 learned Additional Advocate General has failed to point out any law/regulations under which the approval of the apex bodies was a condition precedent for running Art and Craft, Physical Training Instructor, Library Science and Ayurveda Courses. These conditions can be insisted upon, if these are provided either under the Central or the State enactment. The State Government at its own wisdom has constituted the State Council for Vocational Training and has also prepared the guidelines vide Annexure A-5. The institutions, which have already conformed to these guidelines and norms of the State Council for Vocational Training were to be permitted to run all the courses for which the approval/affiliation was granted to them at the time when they were set up. The members of the petitioner’s association have altered their position to their detriment by investing huge amount while setting up vocational centres in the State of Himachal Pradesh. The members of the petitioner’s association have been deprived of getting students for the academic session 2007-08. The same situation has prevailed for the year 2008-09 except that the Cabinet has decided on 18.7.2009 to run few courses except Art and Craft, Library Science, Physical Training Instructor and Ayurveda Pharmacist. The State Government has highlighted the role to be played by the private sector in setting up industrial institutions as is evident from the Technical Education Policy (Annexure P-4) and the guidelines prepared vide Annexure P-5. In fact, the principles laid down in the Technical Education Policy and guidelines have been followed by the State Government by permitting the institutions to have all the courses initially visualized. We share the anxiety of the State to ensure proper infrastructure and conformity to standards prescribed for these institutions. In the present case, 144 institutions were approved by the committees 14 constituted by the State Government. The Department had recommended the courses to be run by these institutions as per Annexure R-1. The fact of the matter is that the institutions have been inspected and the Department has approved their courses as per the norms laid down for running these institutions. As far as 110 institutions are concerned, these could be re-inspected and the deficiencies pointed out in their cases were to be considered at par with the 144 institutions. The members of the petitioner’s association have also placed on record copy of letter issued by the Pharmacy Council of India. The Pharmacy Council of India has stated that it is not supposed to issue any ‘No Objection Certificate’ before running the courses as decided by Cabinet in its meeting held on 25.11.2008. The running of these institutions is to be regulated under the umbrella of National Council for Vocational Training and State Council for Vocational Training at the State level, including technical education policy and the norms prescribed vide Annexure P-5. Mr. P.K. Sharma, learned Additional Advocate General has vehemently argued that this Court cannot go into the question of change in the policy of the State Government reflected in latest orders. We are of the considered view that though the scope of judicial review is limited to look into the policy matters, however, it is not totally prohibited. In case there is arbitrariness, unreasonableness, capriciousness and massive departure from the previous policy without assigning any reason, the Court can interfere. Their Lordships of the Hon’ble Supreme Court in Kumari Shrilekha Vidyarthi and others versus State of U.P. and others, (1991) 1 SCC 212 have held that Article 14 of the Constitution of India applies also to matters of Government policy. Their Lordships have further held that it is imperative and implicit in Article 14 that a change in policy must 15 be fair. The basic requirement of Article 14 is fairness in the action of the State. Their Lordships have held as under: “29. It can no longer be doubted at this point of time that Art. 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram, Shetty v. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992)). In Col. A. S. Sangwan v. Union of India, 1980 (Supp) SCC 559: (AIR 1981 SC 1545), while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Art. 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions