Om Sai Punya Educational and Social Welfare Society & another vs All India Council for Technical Education and Another

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.571 OF 2017

Om Sai Punya Educational and Social Welfare Society & Another ….Petitioners

Versus

All India Council for Technical Education and Another …. Respondents

JUDGMENT

A.M. KHANWILKAR, J.

1. The petitioners have filed this writ petition under Article

32 of the Constitution of India for issuing a writ of mandamus

or any other appropriate writ directing respondent No.1 to

immediately issue a Letter of Approval permitting petitioner

No.1-society to start its college, namely Anant Institute of

Business Studies from the academic year 2017-2018. The

Signature Not Verified petitioner No.1-society applied in February, 2017 to Digitally signed by CHETAN KUMAR Date: 2017.08.16 15:31:19 IST Reason: respondent No.1-All India Council for Technical Education (for

short “AICTE”) for its approval to establish Anant Institute of 2

Business Studies (for short “AIBS”). The Scrutiny Committee

of AICTE (for short “SC”) tendered a report dated 01.03.2017.

The petitioners assert that the report did not point out any

deficiency and recommended grant of Letter of Approval to the

petitioner No.1-society.

2. The said proposal was processed by different committees

between March 2017 and April 2017, such as Expert Visit

Committee (for short “EVC”) and the Standing Appellate

Committee – Scrutiny Committee (for short “SAC - SC”). As the

petitioners entertained some apprehension that there would be

delay in processing the application, petitioner No.1- society

rushed to the High Court of Madhya Pradesh Bench at Gwalior

by way of Writ Petition No. 2793 of 2017. They prayed for a

direction against the respondents to process the application as

per the procedure given in Approval Process Handbook

2017-18 and consider the report of SC which has clearly

mentioned that the two different institutes of the petitioners

were on different patches of land and therefore to issue a

Letter of Approval without any further delay and, in any case, 3

to complete the process of approval before 30 th April, 2017.

The respondent No.1-AICTE, however, issued a letter of

rejection on 30th April, 2017. As a result, the writ petition filed

by the petitioners before the High Court came to be dismissed

on 16th May, 2017, as having become infructuous. The

petitioners challenged the said decision before this Court by

way of SLP (C) No.15799 of 2017 which was disposed of on

22nd June, 2017, in the following terms:

“O R D E R By two letters dated 30.04.2017, the first respondent rejected the applications submitted by the petitioners for setting up an Institute of Management and an Institute of Business Studies. The ground on which the rejection took place was primarily that when the EVC team proceeded to inspect the institutions, it was not allowed to do so.

When this petition came up before the court on 19.06.2017, a submission was made on behalf of the petitioners that having regard to the ground which weighed with the first respondent, the petitioners are ready and willing to submit themselves to a fresh inspection by an EVC team to be constituted by the first respondent. The hearing was adjourned to enable counsel for the first respondent to take instructions.

During the course of the hearing learned counsel appearing on behalf of the first respondent states, on instructions, that an EVC Team shall be constituted expeditiously and a fresh inspection shall be carried out within a period of two weeks from today. This, it has been submitted, is subject to two conditions; firstly, that the petitioners shall pay the usual charges and expenses for 4

the inspection; and secondly, that one EVC team shall inspect both the Institutions. Both these conditions are acceptable to the petitioners.

We accordingly take on record the statement which has been made on behalf of the first respondent and direct that in consequence the earlier rejection of the proposal submitted by the petitioners shall not come in the way of the EVC team while carrying out a fresh inspection, as agreed. Thereupon, the first respondent 3 shall take a fresh decision in accordance with law expeditiously uninfluenced by the earlier order of rejection. If the petitioners are aggrieved by the fresh decision, they will be at liberty to pursue the remedies available in law.

The special leave petition is accordingly disposed of.

Pending applications, if any, shall stand disposed of.”

3. The petitioner No.1-society thereafter decided to

withdraw the application for grant of approval for its other

institute Anant Institute of Management (for short “AIM”) vide

Application ID No.1-3395565031, as it was not possible for

them to get affiliation from the Jiwaji University, Gwalior for

the academic year 2017-18. This decision was communicated

to AICTE vide letter dated 5th July, 2017.

4. In the meantime, in deference to the observation made by

this Court in its order dated 22 nd June, 2017, EVC conducted 5

a fresh inspection in respect of AIBS and submitted its report

on 1st July, 2017 pointing out the deficiencies. The petitioners

then rushed to this Court by way of present writ petition filed

on 22nd July, 2017, but before that the proposal for grant of

Letter of Approval to the petitioners’ institution was referred to

SAC-SC, which finally submitted its recommendations and

observations to AICTE. The respondent No.1-AICTE, vide letter

dated 21st July, 2017 informed its decision to the

Principal/Chairman of the petitioner No.1-society. The said

communication reads thus:

“ALL INDIA COUNCIL FOR TECHNICAL Education (A Statutory Body of the Govt. of India) Ministry of Human Resource Development, Govt. of India Nelson Mandela Marg, New Delhi – 110067 Phone: 011-26131576, 77, 78, 80 Website: www.aicte-india.org F.No. AICTE/AB/CR/PID 1-3404613481 Date: 21.07.2017 To, The Principal/Chairman, Om Sai Punya Educational and Social Welfare Society, 404, Suparsvnath Apartment, A-8, Silicon City, Madhya Pradesh – 452012 Sir, This has reference to Hon’ble Supreme Court order dated 22.06.2017 regarding conduct of a fresh Inspection in respect of Anant Institute of Business Studies, M.P. (AID 1-3404613481) and 2. Anant Institute of Management, M.P. 6

(AID 1-3395565031). The EVC was conducted on 01.07.2017 to both institutes. The EVC has reported deficiencies in respect of both Institutes. The matter was placed before the SAC on 13.07.2017 for recommendation. The representative of the Institute presented the case before the SAC.

The recommendation and observation of SAC in respect of Anant Institute of Business Studies, (AID 1-3404613481) are as under:

S. Deficiencies Observation of SAC No. noted by dated 13.07.2017 EVC Other Institution Documents for closure are (AICTE submitted & accepted. approved/ not under AICTE ambit) are being run/proposed to be run in the same patch of land of land shown for the present Institution. – Proposed to run in the new Anant Institute of Management. 1. Amenities Area: Architects certificate & Boys Common Affidavit are submitted & Room Accepted. Girls Common Room

Recommendation:

“The SAC recommends LOA for starting Anant Institute of Business Studies from the Academic year 2018-19.

The above recommendation of SAC has been approved by the Competent Authority in the Council. You are hereby intimated to comply with the recommendation of SAC for 7

starting Anant Institute of Business Studies from the Academic year 2018-19.

Sd/-

Advisor (Approval Bureau)”

5. Notably, the petitioners have not claimed any relief with

reference to the aforementioned communication. The relief in

the writ petition, however, is to issue a writ in the nature of

mandamus to respondent No.1-AICTE, to immediately issue a

Letter of Approval and permit the petitioner No.1-society to

start its college AIBS from the academic year 2017-18.

Absence of challenge to the communication dated 21 st July,

2017 even if overlooked, the moot question is whether in the

fact situation of the present case the petitioners can succeed

in getting the relief as claimed in the writ petition. Indubitably,

it is not open to AICTE to breach the timelines specified in the

AICTE Act and the Regulations framed thereunder for

processing the proposal for grant of a Letter of Approval. It is

well settled that the schedule specified in the Regulations has

statutory backing. Its adherence is mandatory and not

directory. As per the said schedule, AICTE does not have any 8

jurisdiction or authority to issue approval for commencement

of a new course or for additional intake of students beyond

30th April of the year immediately preceding the

commencement of an academic year. In the case of

Parshvanath Charitable Trust Vs. All India Council for

Technical Education, 1 it has been made amply clear that

even the order granting recognition by the Appellate

Committee of AICTE should not fall foul of the admission

schedule. The admission schedule for academic year 2017-18

has already commenced and been substantially completed.

The academic year has also commenced and the last date for

completing the admission process is August 15 th, 2017. The

dates and timelines are provided in the Regulations and

reiterated by this Court in the aforementioned decision. The

same are inviolable.

6. The grievance of the petitioners is that the petitioners

had submitted their application for grant of approval within

the specified timeline and also completed all the necessary

formalities. As a matter of fact, it was the inaction of the

1 . (2013) 3 SCC 385 9

AICTE which resulted in delay and the petitioners cannot be

held responsible for that and moreso, after having made huge

investment upto rupees four crores for establishing the

college. This plea has been countered by respondent No.1 by

filing the affidavit of Assistant Director to oppose this writ

petition, dated 9th August, 2017. It is asserted by the

respondents that in terms of the statutory obligation cast on

the respondent No.1, the proposal submitted by the petitioner

No.1-society for starting two new institutes namely AIBS and

AIM for the academic year 2017-18 was processed in right

earnest. Further, it is only on 5 th July, 2017 the petitioners

withdrew their proposal in respect of AIM, whereafter the

deficiency of sharing the same land and other infrastructure

between the two institutes stood removed. Only then it became

possible to issue a Letter of Approval to AIBS and was so

issued on 21st July, 2017, for the academic year 2018-19. It is

asserted by the respondents that the SAC-SC on 15 th April,

2017 had found something amiss and noted that AIBS has a

common building plan and land, for which a fresh scrutiny of

the proposal was essential by a single committee. As a result, 10

fresh scrutiny was undertaken by a common EVC for both

institutes. As directed, on 25 th April, 2017 EVC went for

inspection of the institutes. The team of EVC, however, was

not allowed to enter the approach road of the institutes for

reasons best known to the petitioners. This fact was intimated

to petitioner No.1-society by the AICTE vide letter dated 30 th

April, 2017. Finally, after the direction given by this Court on

22nd June, 2017, EVC proceeded to take inspection in the

presence of the representative of petitioner No.1-society and

inspection was conducted on 1st July, 2017. As apprehended

earlier by the authorities, it was noticed that both the

institutes were situated on the same patch of land and shared

various other common facilities. This deficiency could not be

condoned under the Rules. Presumably, realising this position,

the petitioners were advised to withdraw the proposal relating

to AIM and gave in writing in that behalf to AICTE only on 5 th

July, 2017. It is only thereafter the respondent No.1 could

process the proposal of the petitioners to start AIBS, which

was so accorded on 21st July, 2017 for the academic year

2018-19. The respondents have relied on the exposition in 11

Para 46.6 of the decision in Parshvanath Charitable Trust

(supra), which reads thus:-

“46.6. If the appellate authority decides the matter prior to 30th April of the year concerned and grants approval to a college, then alone such institution will be permitted to be included in the list of colleges to which admissions are to be made and not otherwise. In other words, even if the appellate authority grants approval after 30th April, it will not be operative for the current academic year. All colleges which have been granted approval/affiliation by 10th or 30th April, as the case may be, shall alone be included in the brochure/advertisement/website for the purpose of admission and none thereafter.”

7. In the backdrop of the aforementioned facts, it is

unfathomable as to how respondent No.1-AICTE can be held

responsible for the delay in issuing the Letter of Approval in

respect of AIBS for the academic year 2017-18. It is obvious

that the petitioners having realised that because of inspection

by one EVC, their claim of no deficiency at all will be exposed

were advised to withdraw the proposal in respect of another

institute (AIM) which shared the same plot of land and

common facilities. This deficiency was then removed by the

petitioners only in July, 2017, by sending communication 12

dated 5th July, 2017 for that purpose. The fact that the

petitioners have already made huge investments per se cannot

be the basis to overlook the statutory timelines specified for

grant of approval, which this Court has authoritatively held to

be mandatory and not directory. Any indulgence shown to the

petitioners would inevitably affect the larger public interests,

as the academic course has already commenced for the

current academic year from 1st August, 2017 and the last date

up to which the students can be admitted against the seats

available in any recognised college, is specified as 15 th August,

2017.

8. The petitioners would contend that the deficiencies noted

in the EVC report dated 1st July, 2017 were contrary to the

finding noted in its previous report dated 10 th March, 2017 as

also of SAC-SC report dated 19th April, 2017. The argument

though attractive at the first blush deserves to be stated to be

rejected. Inasmuch as, the earlier report of EVC and SAC-SC

were based on the proposal and documents submitted by the

petitioners. Notably, the EVC team which wanted to visit the 13

site for inspection on 25th April, 2017 was obstructed from

entering the college complex. On 15 th April, 2017 the SAC-SC

had already expressed apprehension about the factual position

and had advised one EVC team to visit both the institutes so

that the correct position could be ascertained. That became

possible only after the direction given by this Court on 22 nd

June, 2017. The common EVC then inspected the site in the

presence of the representative of the petitioner No.1- society

and submitted its report dated 1 st July, 2017 mentioning

about the two deficiencies noticed during the said inspection

namely, another institute of the petitioner No.1- society in the

name of AIM was proposed to be run on the same land on

which AIBS was situated and a fresh deficiency about the area

of the Boys’ Common Room and Girls’ Common Room being

less than the required area i.e. 75 sqm. This report must be

taken as the final observation of the EVC which is based on

inspection of the site. In other words, some noting made in the

previous report submitted by EVC and SAC-SC would be of no

avail to the petitioners.

14

9. It is next contended that as the deficiencies have since

been removed, the AICTE was obliged to grant approval for the

academic year 2017-18 as was the intent behind the order

passed by this Court on 22 nd June, 2017. Even this

submission does not commend to us. For, on a fair reading of

the order dated 22nd June, 2017, we find that no direction has

been issued to AICTE to grant approval for the academic year

2017-18. Rather, it has been left open to the AICTE to take a

fresh decision in accordance with law uninfluenced by the

earlier order of rejection. As noted earlier, the deficiencies

noticed in the EVC report dated 1 st July, 2017 stood removed

only after the petitioners withdrew their proposal relating to

AIM vide letter dated 5th July, 2017. Since approval to be

accorded by the AICTE was after the cut off date of 30 th April,

2017 for the academic year 2017-18, it chose to issue approval

for starting AIBS institute for the academic year 2018-19. No

fault can be found with the AICTE in that regard, as even the

order dated 22nd June, 2017 expected the AICTE to take a

fresh decision in accordance with law. Suffice it to observe

that the decision of this Court dated 22 nd June, 2017 cannot 15

be construed as a direction to AICTE to grant approval in

breach of the statutory timelines specified in that behalf.

10. It is next contended by the petitioners that there is no

other institute in the entire district of Ashok Nagar, Madhya

Pradesh which imparts courses pertaining to Business Studies

and therefore grant of approval for starting AIBS for the

academic year 2017-18 will be in public interest. This is an

argument of desperation. For, the petitioners are responsible

for the present situation. In the fact situation of the present

case, we are not inclined to show any indulgence to the

petitioners especially when the entire admission process has

been substantially completed and the academic year has

commenced from 1st August, 2017. Any indulgence shown to

the petitioners would fall foul of the admission schedule for

the academic year 2017-18.

11. A priori, in law, the petitioners are not entitled for the

relief as claimed in the writ petition. Furthermore, from the

facts which have now emerged it is noticed that the petitioners

were fully aware of sharing of the same piece of land and some 16

of the common facilities between the two institutes but did not

disclose that fact in the original application (proposal).

Whereas, the team of officers of EVC who had visited the site

for inspection on the earlier occasion were obstructed from

entering the building complex, obviously with ulterior design.

Realising that the deficiency of two institutes sharing the same

plot and some of the common facilities would come in the way

of the petitioners, the petitioners have since been advised to

withdraw the proposal in respect of AIM. That decision was

taken by the petitioners on 1st July, 2017, which was

communicated to AICTE only on 5th July, 2017. It is only after

receipt of that communication, the AICTE proceeded on the

assumption that the stated deficiency stood removed in

respect of AIBS and accorded approval to the said institute on

21st July, 2017, but for the academic year 2018-19. Keeping in

mind, the aforementioned factual position and in particular

the conduct of the petitioners, the question of granting any

relief to the petitioners much less by invoking plenary powers

of this Court, in exercise of Article 142 of the Constitution of

India, to condone or relax the timeline regarding grant of 17

approval and to direct the respondent authorities to treat the

approval for the academic year 2017-18 as prayed by the

petitioners does not arise.

12. Accordingly, this petition being devoid of merits is

dismissed with costs quantified at Rupees Fifty Thousand to

be paid to the respondents within four weeks from today.

…………………………………….J. (Dipak Misra)

....……………………………….J. (A.M. Khanwilkar)

New Delhi, Dated: August 16, 2017.