State of H.P. vs H.P. Nizi Vyavsayik Prishikshan Kendra Sangh

State of H.P. & Ors. .... Appellant(s)

Versus

Himachal Pradesh Nizi Vyavsayik

Prishikshan Kendra Sangh .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 12.08.2009 passed by the High Court of Himachal

Pradesh at Shimla in C.W.P. No. 2948 of 2008 wherein the

Division Bench of the High Court allowed the writ petition filed

by the respondent herein.

1 3) Brief facts:

(a) In pursuance of the recommendation of the All India

Council for Technical Education (AICTE), the Government of

India appointed a Committee called the National Trade

Certification Investigation Committee in the year 1951 with

instructions to prepare a scheme for the establishment of an

All India Trades Board which would award certificates of

proficiency to craftsmen in various engineering and building

trades. The said Committee made certain recommendations

and while accepting the same, a central agency for

coordinating the training programmes and awarding

certificates of proficiency in craftsmanship on an all-India

basis was created. The Government of India decided to

transfer the administration of the training organization under

the Directorate General of Resettlement and Employment to

the control of the State Government concerned, retaining for

itself the function of coordinating craftsmen training and

laying down the training policy.

(b) Accordingly, in consultation with the State Governments

and other concerned parties, National Council for Vocational

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Training (NCVT) was set up in the year 1956 and was

entrusted with the functions relating to establishing and

awarding National Trade Certificates to craftsmen, prescribing

standards and curriculum for craftsmen training in the

technical and vocational trades throughout the country and

advising and assisting the Central Government on the overall

training policy and programmes. On similar lines, State

Council for Vocational Training (SCVT) was created to deal

with all the matters relating to Vocational Training at the level

of the State. The Government of Himachal Pradesh, in

consonance with National Policy of Education (NPE) 1986, as

revised from time to time, decided to adopt a policy for

producing manpower in the conventional as well as in

emerging areas of the Engineering and Technology and in

other professional disciplines. The Government, keeping in

view the financial constraints to meet the immense

requirement of investment in the field, also decided to

encourage private sector participation in the State for which

the Government was to extend all possible facilities and also to

provide for some concessions for arranging the necessary

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infrastructural facilities for the establishment of technical and

other professional institutions in the State. In order to fulfill

this objective, the State Government framed Technical

Education Policy and the Department of Technical Education

issued guidelines for Vocational Training Centres (VTCs) in

Himachal Pradesh.

(c) In the year 2004, the State Government through its

Department of Technical Education invited private

parties/institutions to open Vocational Training Centres

(VTCs) within the State of Himachal Pradesh. These Centres

were permitted to admit students for the permitted courses on

such terms and conditions as provided under the said

guidelines. In pursuance of the said invitation, the members

of the respondent-Association applied for opening VTCs at

different places within the State of Himachal Pradesh. The

Letters of Intent were issued to the members of the

respondent-Association permitting them to run various

courses including Art and Craft, Hotel Management, Ayurveda

Pharmacist, Physical Training Instructor, Library Science etc.

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(d) A decision was taken in the meeting of SCVT held on

27.04.2006 to wind up certain courses for which there was

little scope of employment or self employment and in its place

new courses as per demand of the market/industry be started.

Thereafter, in the meeting held on 21.08.2007, while

confirming the proceedings of earlier meeting dated

27.04.2006, the State Council granted approval to the opening

of 161 new VTCs and for renewal of 112 already existing VTCs.

(e) Despite the endeavour of the State Government to

promote and encourage the participation of the private sector,

it had not accorded permission to the institutions to run the

vocational courses for the academic Session 2007-08. The

members of the respondent's Association made

representations to the State Government with regard to the

same. Thereafter, in the meeting held on 23.10.2008, after

detailed deliberation on various issues, it was decided that all

the issues raised in the meeting including cancellation of

affiliation, permission for fresh admissions and starting of

fresh courses in different VTCs would be examined by a Sub-

Committee to be constituted and headed by the Chief

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Secretary. Accordingly, the Sub-Committee was constituted

on 25.10.2008. On 22.11.2008, the Sub-Committee, so

constituted, submitted its report to the Government and the

matter was taken up in the Cabinet meeting held on

25.11.2008. The effect of the decision of the Cabinet was that

for the academic session 2007-08 there would be no

admission for the courses which are being taught by the

respondent herein and subsequent to the Cabinet decision,

Government Order dated 19.12.2008 was issued. In

compliance with the Cabinet decision dated 25.11.2008 and

the Government Order dated 19.12.2008, eight Inspection

Committees were constituted by the Director, Technical

Education for the inspection of Vocational Training Centres

(VTCs) and recommendations of these Committees were sent

to the Government and placed before the State Cabinet in its

meeting dated 18.07.2009.

(f) Challenging the decision of the Cabinet dated

25.11.2008, the respondent herein filed writ petition being

CWP No. 2948 of 2008 before the High Court of Himachal

Pradesh. On 12.08.2009, the High Court, by the impugned

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order, allowed the writ petition and quashed subsequent

cabinet decision dated 18.07.2009 discontinuing the three

courses, namely, Sl. No. 1 (Art and Craft), Sl. No. 4 (Library

Science) and Sl. No. 7 (PTI). In addition, the Court also issued

various directions and awarded cost of Rs. 25,000/-.

Aggrieved by the said decision, the appellants have preferred

this appeal before this Court by way of special leave petition.

4) Heard Mr. Altaf Ahmed, learned senior counsel for the

appellant-State and Mr. Anoop Chaudhary, learned senior

counsel for the respondent.

5) Mr. Altaf Ahmed, learned senior counsel appearing for

the State, after taking us through the relief prayed for in the

writ petition and the stand of the State submitted that after

hearing arguments and reserving the judgment on

03.07.2009, the Division Bench of the High Court committed

an error in considering the Cabinet decision dated 18.07.2009

which is a subsequent event and quashing the same when the

writ petitioner has not pleaded or amended the original prayer

in the writ petition. He also pointed out that without

appreciating the stand of the State in modifying the "policy",

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the High Court not only quashed the Cabinet decision but also

issued various directions which are all unacceptable. On the

other hand, Mr. Anoop Chaudhary, learned senior counsel for

the respondent submitted that on the principle of `legitimate

expectation', the State is not justified in altering the policy to

promote private institutions for vocational training on various

subjects.

6) Admittedly, the respondent herein which is an

unregistered association of Vocational Training Centres (VTCs)

filed writ petition before the High Court of Himachal Pradesh

at Shimla through its President seeking certain reliefs.

According to the respondent-Association, their members are

imparting training in different Vocational Training Centres and

are also recognized by the Himachal Pradesh SCVT. In order

to appreciate the rival contentions, it is useful to refer the

relief prayed for in the writ petition which reads as under:-

"It is, therefore, humbly prayed that this writ petition may be

allowed, -

(i) the respondents may be directed by issuing writ of

mandamus to hold admission test for admitting

students in SCVT Courses for the session 2007-08 and

consequently sponsor the candidates to the Vocational

Training Centres (VTCs) approved by the respondents

for SCVT Courses;

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(ii) that in case it is felt by the respondents that there are

certain other formalities which are required to be

completed or there are shortcomings required to be

removed by a particular Vocational Training Centre

(VTC), the respondents may take corrective measures

themselves and the concerned VTC may be allowed to

remove the shortcoming within reasonable time and

the course may continue uninterruptedly;

(iii) that the respondents may be directed to commence

admissions process forthwith for all the permitted

courses for which the Vocational Training Centres

(VTCs) were affiliated/approved in the past and the

students may be allocated to the concerned PTC at the

earliest;

(iv) that in case the central counseling has become

difficult for the respondents, the concerned Vocational

Training Centre (VTC) may be permitted to admit

students of its own by giving due regard to the

minimum standards as fixed by the respondents for a

particular course;

(v) Any other relief deemed fit in the facts and

circumstances of the case may also be granted, in the

interest of justice. Costs may also be awarded."

7) A perusal of all the prayers clearly shows that the

respondent-association had not sought for quashing of any

policy or scheme or decision or order of the State Government

but only prayed for certain directions for admission of

students in SCVT courses for the session 2007-08. The State

has filed reply conveying its stand. It was highlighted that the

institution established must fulfill the requirements of the

norms and guidelines of various apex bodies like AICTE,

Pharmacy Council of India, NCVT and SCVT. It was also

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averred in the reply that the whole issue of admission to VTCs

was taken up in the Cabinet meeting dated 25.11.2008 and,

consequently, a G.O. was issued on 19.12.2008. It is seen

from the impugned order of the High Court that while hearing

the matter, the Division Bench, on 28.05.2009, directed

learned Addl. Advocate General to seek instructions from the

State as to what was the stand of the Government with regard

to holding of examination for these institutions. A

supplementary affidavit was filed by the State Government on

02.07.2009. The Court also recorded the stand of the

Government that for the year 2008-09, institutions were

permitted to run the courses except Art and Craft, Library

Science and Physical Training Instructor (PTI). Ultimately, the

High Court has concluded that the State, by permitting the

members of the petitioner's association to open the institution

in the State of Himachal Pradesh after investing huge amount

of money have generated legitimate expectation in them that in

future also they shall be permitted to run the courses, which

were permitted at the time of setting up of the institutions and

further that the members of the petitioner's association cannot

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be permitted to be left in a lurch by the arbitrary action of the

State Government by denying them running of these courses.

The Court has also observed that there is no explanation why

the State Government has not permitted the running of these

courses. After arriving at such conclusion in the last

paragraph, the High Court allowed the petition and quashed

the decision taken by the Cabinet on 18.07.2009. It is

relevant to point out that after hearing the matter at length,

the Division Bench reserved it for judgment on 03.07.2009.

Before the pronouncement of the judgment, that is, on

12.08.2009, the Cabinet of the State Government after taking

note of various aspects took a decision on 18.07.2009

discontinuing three courses under SCVT, namely, i) Art and

Craft, ii) Library Science and iii) PTI. The High Court, after

getting the said decision through the Addl. Advocate General,

without reopening the case and hearing both sides about the

matter as to the subsequent development, i.e., the decision of

the Cabinet on 18.07.2009, simply quashed and set aside the

same by issuing various directions.

11 8) We have already adverted to the relief prayed for by the

respondent-association in the said writ petition. Admittedly,

there is no prayer for quashing of even earlier Cabinet decision

or order of the government. The conclusion of the High Court

quashing the Cabinet decision dated 18.07.2009 and as a

consequence issuing several directions is unacceptable and

contrary to the well established principles. First of all, there

was no prayer for quashing of any decision of the State

Government much less the subsequent Cabinet decision dated

18.07.2009. If the High Court was interested in going into the

said decision that too after reserving the judgment on

03.07.2009, it is but appropriate to reopen the case, permit

the petitioner's association to amend the relief portion, afford

adequate opportunity to the State to put-forth their stand for

modifying this "policy" curtailing certain courses under SCVT.

Admittedly, the High Court has not resorted to such recourse

and simply quashed the decision of the Cabinet dated

18.07.2009 and issued various directions which are

impermissible.

12 9) As rightly pointed out by Mr. Altaf Ahmed, without any

arguments having been heard, without there being any

question raised by any party as to the validity of the Cabinet

decision dated 18.07.2009 and without the same being in

question, or any relief sought for in the writ petition, the High

Court has gone into the said decision of the Cabinet having

taken place after the judgment was reserved. The decision of

the Cabinet generally ought not to be interfered with in

judicial review so lightly as has been done in the present case.

The quashing of the Cabinet decision without analyzing the

pros and cons in the manner seeks to restrict the State's

constitutional authority and powers to frame policy especially

in such vital areas like imparting technical education is not

acceptable. The following is the outcome of the Cabinet

decision dated 18.07.2009:

"Dated: 18.07.2009

ITEM NO.37

Government of Himachal Pradesh

Department of General Administration

(Confidential & Cabinet)

Subject:- Regarding State Council for vocational Training

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In the meeting of Cabinet held on 18.07.2009, the

above proposal has been discussed and the following

decision has been taken:

"Points for consideration 1, 2 and 4 has been approved

with following amendments:-

(i) All courses shown in Annexure-"Gha" except S.No.1,4

and 7 are approved.

(ii) One institution must not be allowed to start more than

4 courses.

The implementation report may sent to this Department

within 15 days.

Sd/-

Special Secretary (GAD) to the

Government of Himachal Pradesh

Additional Chief Secretary (Technical Education)"

10) It is seen that the Cabinet considered the proposal of the

State Council for Vocational Training and after deliberation,

the decision has been taken to continue various courses under

SCVT except for the courses at Sl. No. 1 (Art and Craft), Sl. No.

4 (Library Science) and Sl. No. 7 (PTI). Though in the

supplementary affidavit, the State has not highlighted the

reason for discontinuing the three courses in the State of

Himachal Pradesh, the High Court presumed that the State is

precluded from taking fresh/revised policy in the matter of

imparting technical education. In fact, in the said decision,

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the State has not barred all the institutions from continuing

the courses already notified under SCVT. The Cabinet decided

to discontinue only three courses. Inasmuch as the said

Cabinet decision dated 18.07.2009 not being the subject-

matter or issue of the writ petition, the State was not in a

position to highlight all the details before the Court.

Accordingly, we are satisfied that the High Court was not

justified in interfering with the Cabinet decision dated

18.07.2009 which was not the issue or challenge in the writ

petition. We are also unable to accept the conclusion of the

High Court that the petitioner's association (respondent

herein) is entitled to run all the courses under the principle of

`legitimate expectation'.

11) The High Court has lost sight of the fact that education is

a dynamic system and courses/subjects have to keep

changing with regard to market demand, employability

potential, availability of infrastructure, etc. No institute can

have a legitimate right or expectation to run a particular

course forever and it is the pervasive power and authority

vested in the Government to frame policy and guidelines for

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progressive and legitimate growth of the society and create

balances in the arena inclusive of imparting technical

education from time to time. Inasmuch as the institutions

found fit were allowed to run other courses except the three

mentioned above, the doctrine of legitimate expectation was

not disregarded by the State. Inasmuch as ultimately it is the

responsibility of the State to provide good education, training

and employment, it is best suited to frame a policy or either

modify/alter a decision depending on the circumstance based

on relevant and acceptable materials. The Courts do not

substitute its views in the decision of the State Government

with regard to policy matters. In fact, the Court must refuse

to sit as appellate authority or super legislature to weigh the

wisdom of legislation or policy decision of the Government

unless it runs counter to the mandate of the Constitution.

12) With regard to the importance of human resources,

especially manpower requirement in various professional and

technical fields, the Government is free to frame its policy,

alter or modify the same as to the needs of the society. In

such matters, the Courts cannot interfere lightly as if the

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Government is unaware of the situation. Apart from these

aspects, procedurally also the High Court has committed an

error in quashing the Cabinet decision dated 18.07.2009

which was not challenged in the writ petition by raising valid

grounds. Further, both parties were not afforded opportunity

to put-forth their stand as to the subsequent development,

namely, Cabinet decision dated 18.07.2009. For all these

reasons, the impugned order of the High Court is to be

interfered with. However, we permit the respondent's

association or its members to challenge the said

decision/order of the Government by way of fresh proceeding,

if they so desire.

13) Under these circumstances, the impugned order of the

High Court quashing the Cabinet decision dated 18.07.2009

and issuing various directions including awarding cost of

Rs.25,000/- in favour of the respondent-association are set

aside. As observed earlier, the respondent's association or its

members are free to challenge the order of the Government in

the High Court by way of an appropriate writ by projecting

valid grounds, if any. In such event, the State Government is

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equally entitled to highlight its policy, need for the change,

and demand of the society insofar as courses prescribed under

SCVTs.

14) With the above observations, the civil appeal is allowed

with no order as to costs.

................................

...............J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

APRIL 20, 2011.

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