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J.K. Institute of Pharmaceutical Education and Research (Owned & Managed by Jamla Educational Society) & Others v/s State of Chhattisgarh & Others

    Writ Petition (C) No. 1181 of 2018

    Decided On, 27 April 2018

    At, High Court of Chhattisgarh

    By, THE HONOURABLE MR. JUSTICE SANJAY K. AGRAWAL

    For Petitioners: Mr. Manoj Paranjpe, Mr. Varun Sharma and Mr. Kshitij Sharma, Advocates. For the State: Arun Sao, Deputy Advocate General. For the AICTE: Sandeep Dubey, Advocate. For the Chhattisgarh Swami Vivekanand Technical University: Anumeh Shrivastava, Advocate.



Judgment Text

1. The short and common question arises for determination in this batch of writ petitions is, whether the All India Council for Technical Education (AICTE) is justified in rejecting the application/ applications filed by the petitioners for establishing a new technical institution (college) that is to run Bachelor in Pharmacy and Diploma in Pharmacy courses on the grounds mentioned in the impugned order?

2. The aforesaid question is required to be unlocked in the following factual backdrop:

3. The petitioners are educational institutions owned and managed by their respective educational societies duly registered under the provisions of the Chhattisgarh Societies Registrikaran Adhiniyam, 1973, in order to establish and run technical institution to impart education in technical courses like Bachelor in Pharmacy and Diploma in Pharmacy. They made applications to respondent No.2 AICTE for grant of approval to run the said courses for the academic session 2018-19. The AICTE is established under Section 3 of the All India Council for Technical Education Act, 1987 (for short, 'the AICTE Act'). The said applications were processed and ultimately, the Central Regional Committee of respondent No.2 on 9-2-2018 passed resolution and thereafter, the said applications were rejected by order dated 4-4-2018 on the ground that NOC was not produced in two cases and as per the perspective plan and the decision of the Central Regional Committee, deficiency was noted and their applications were rejected on the report of the Re-Scrutiny Committee. Calling in question legality, validity and correctness of the decision taken by respondent No.2, this batch of writ petitions have been filed stating inter alia that the order of respondent No.2 is unsustainable and bad in law, as the NOC is required to be issued by the State Government for considering to establish the technical institution and even in accordance with Regulation 4.18 of the All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations, 2016 (for short, 'the Regulations'), no views of the State Government were forwarded and perspective plan has been relied upon by the AICTE, whereas in the perspective plan, the State Government has not made recommendation that approvals for courses of Bachelor in Pharmacy and Diploma in Pharmacy should not be granted in districts which have the Pharmacy College, as such, the order is unsustainable and bad in law.

4. Return has been filed by the main contesting respondent AICTE opposing the writ petitions stating inter alia that the State Government did not issue NOC for the petitioners and on the basis of perspective plan of the State of Chhattisgarh, the Central Regional Committee meeting of AICTE, Bhopal was held on 9-2- 2018 under the Chairmanship of Dr. Sunil Kumar, Vice-Chancellor and a decision has been taken for further processing for establishment of new pharmacy institutions only in those districts where no existing pharmacy institutions are there in the State of Chhattisgarh and no other new institution of the State, and the applications have rightly been rejected.

5. The State Government has also filed its return supporting the order passed by the AICTE rejecting the applications filed by the petitioners.

6. No rejoinder has been filed.

7. Since common question of law and fact is involved in these writ petitions, they are heard together and are being disposed of by this common order.

8. Mr. Kanak Tiwari, learned Senior Counsel, Mr. Manoj Paranjpe and Mr. Kshitij Sharma, learned counsel appearing for the respective petitioners, would vehemently submit that the petitioners have fundamental right to set up an educational institution and to impart education which has been recognized by the Supreme Court in the matter of T.M.A. Pai Foundation and others v. State of Karnataka and others 1 followed in the matter of P.A. Inamdar and others v. State of Maharashtra and others 2. The petitioners' applications were required to be considered in light of the AICTE Act read with the Regulations framed in the year 2016, but, in the instant cases, the Regulations have not been followed in its letter and spirit and the AICTE has placed itself under the State Government and there is no such requirement under the AICTE Act and the Regulations to obtain NOC from the State Government. They would further submit that in the instant case, if the State Government has failed to make available its view point, then it ought to have been presumed that there is no such objection from the State. The applications have been rejected in most mechanical and arbitrary manner and thus, the Re-Scrutiny Committee has been precluded from exercising its function independently. The authorities have failed to conduct themselves in impartial and judicious manner. They have further failed to even take into consideration their statistics as provided under the process hand- 1 (2002) 8 SCC 481 2 (2005) 6 SCC 537 book 2018-19 wherein, Annexure I identifies various educationally backward districts in Chhattisgarh which includes Bilaspur also. Therefore, the impugned order be set aside and the AICTE be directed to consider the cases of the petitioners afresh strictly in accordance with law.

9. Refuting their submissions, Mr. Sandeep Dubey, learned counsel appearing for the AICTE, would vehemently submit that the perspective plan has been obtained from the State Government and in accordance with the said perspective plan, the Central Regional Committee considered the cases of the petitioners on 9-2- 2018 for the academic sessions 2018-19 and resolved to consider the same in accordance with the perspective plan received from the Director, Technical Education and accordingly, the Re-Scrutiny Committee has rejected the cases of the petitioners on 27-2-2018 which is strictly in accordance with law. He would rely upon the decisions of the Supreme Court in the matters of Parshvanath Charitable Trust and others v. All India Council for Technical Education and others 3 and All India Council for Technical Education v. Surinder Kumar Dhawan and others 4.

10. Mr. Arun Sao, learned Deputy Advocate General appearing for the State of Chhattisgarh, would submit that the State had already sent its perspective plan 2018-19 and it is for the AICTE to consider the same in accordance with the perspective plan and it has rightly rejected the applications of the petitioners.

11. Mr. Anumeh Shrivastava, learned counsel appearing for the Chhattisgarh Swami Vivekanand Technical University, would submit 3 (2013) 3 SCC 385 4 (2009) 11 SCC 726 that the University had already granted NOC to the petitioners institutions subject to conditions incorporated therein.

12. I have heard learned counsel for the parties, considered their rival submissions and gone through the record with utmost circumspection.

13. So far as the question of appeal before the Standing Appellate Committee (SAC) by the petitioners is concerned, it is the stand of the petitioners that web-portal of the AICTE - SAC is inactive / deactivated, therefore, appeal could not be preferred. Copy of screen-shot of the said web portal has also been filed. After hearing learned counsel for the parties, it is quite vivid that the petitioners attempted to file an appeal in the web-portal of the AICTE, but it was not duly activated to accept the appeal(s) of the petitioners. Even the petitioners have sent appeal by e-mail, but it is not the stand of the AICTE that appeal has been decided or appeal is being considered by the Standing Appellate Committee. Therefore, looking to the time line prescribed by the Supreme Court in Parshvanath Charitable Trust (supra), indicating 30th April as the last date for considering the question of approval, the petitioners decided to prefer writ petitions which cannot be thrown out on the ground of availability of alternative remedy, as the petitioners were prevented from making appeal due to non-opening of the app in the on-line web-portal amounting to denial of justice to them. In this regard, pertinent judgment of the Supreme Court may be noticed herein profitably.

14. Their Lordships of the Supreme Court in the matter of Anita Kushwaha v. Pushap Sudan 5 have held that access to justice is fundamental right guaranteed under Article 14 of the Constitution of India and access to justice is and has been recognized as a part and parcel of right to life in India and in all civilized societies around the globe and held as under: -

"33. Four main facets that, in our opinion, constitute the essence of access to justice are:

(i) the State must provide an effective adjudicatory mechanism;

(ii) the mechanism so provided must be reasonably accessible in terms of distance;

(iii) the process of adjudication must be speedy; and

(iv) the litigant's access to the adjudicatory process must be affordable."

Thus, the issue of alternative remedy is answered accordingly.

15. The Supreme Court in T.M.A. Pai Foundation (supra) has clearly held that right to establish and administer educational institutions is a fundamental right under Article 19(1)(g) of the Constitution of India. While answering question No.11, Their Lordships held as under:

"Q. 11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?

xxx xxx xxx The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities 5 (2016) 8 SCC 509 specifically under Article 30.

All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment."

16. The aforesaid principle of law laid down by the Supreme Court has been followed with approval by a Constitution Bench of the Supreme Court in P.A. Inamdar (supra).

17. Various purposes, objects and functions have been contemplated under the AICTE Act. The AICTE is a premier body for granting affiliation for technical courses / institution and for which purposes in exercise of power conferred under Section 23(1) read with Sections 10 and 11 of the AICTE Act, the Regulations have been framed from time to time for the purpose of grant of approval and affiliations to various institutions and for that purpose the All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations, 2016 have been framed which are applicable in the instant case and the petitioners' cases are said to have been considered in accordance with those Regulations. In Parshvanath Charitable Trust (supra), the Supreme Court has held that the Regulations framed by the central authorities such as AICTE have the force of law and are binding on the concerned.

18. Section 2(g) of the AICTE Act defines, "technical education" means programmes of education, research and training in engineering Technology, architecture, town planning, management, pharmacy and 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.

19. In the matter of State of T.N. and another v. Adhiyaman Educational & Research Institute and others 6 the Supreme Court has held that the AICTE is an apex body and decision of the same is binding upon all the concerned authorities and also held that policy of the State or any legislation in that regard imposing complete ban upon the opening of technical institution within the State is held to be beyond its power and contrary to law.

20. Likewise, in the matter of Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvanathapuram, Kerala State and another 7, the Supreme Court has held that the State Government cannot have a policy contrary to a Central Act and any such policy of State cannot be used as a ground for refusing permission for setting up of a technical institution. Their Lordships observed as under:

"27. The so-called "policy" of the State as mentioned in the counter-affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupananda & Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N. 8 which was a case relating to medical education and which also related to the effect of a Central law upon a law made by the State under Entry 25 List III, it was held (at SCC p. 35, para 34) that the "essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment 6 (1995) 4 SCC 104 7 (2000) 5 SCC 231 8 (1996) 3 SCC 15 of a new medical college now rests with the Central Government alone".

(emphasis supplied) Therefore, the State could not have any "policy" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and Regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by AICTE or if the State felt that some conditions attached to the permission and required by AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action."

21. The principle of law laid down in Jaya Gokul Educational Trust (supra) has been followed with approval recently in the matter of Rungta Engineering College, Bhilai and another v. Chhattisgarh Swami Vivekanand Technical University and another 9 holding that the State Government as a matter of policy cannot decline establishment of new technical institution and observed as under relying upon Jaya Gokul Educational Trust (supra):

"26. The question whether the State Government as a matter of policy, can decline to grant approval/permission for the establishment of a new engineering college in view of the perception of the State Government that the opening of new colleges will not be in the interest of the students and employment, fell for consideration of this 9 (2015) 11 SCC 291 Court in Jaya Gokul Educational Trust v. Commr. & Secy. to Govt. Higher Education Dept., (2000) 5 SCC 231. This Court held that: (SCC p. 246, para 27) "27. ... the State could not have any 'policy' outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission."

(emphasis in original)

32. An examination of all the objections mentioned in the said communication would reveal that each one of those objections squarely fall within the sweep of one or the other areas which only AICTE has the exclusive jurisdiction to deal with. None of them are demonstrated before us to be matters falling within the area legally falling within the domain of the respondents. AICTE, on inspection of the first petitioner College reported that the first petitioner College fulfills all the conditions prescribed by the norms and standards laid down by AICTE. The respondents did not make any specific assertion that such a report of AICTE is factually incorrect. Assuming for the sake of argument that, in the opinion of the respondents, the petitioner College has not in fact fulfilled any one of the conditions required under the norms specified by AICTE, the only course of action available for the respondents is to bring the shortcomings noticed by them to the notice of AICTE and seek appropriate action against the petitioner College."

22. Pausing here, it would be appropriate to again come back to the decision of the Supreme Court in Parshvanath Charitable Trust (supra) regarding the scope and jurisdiction of this Court to interfere with the order granting or rejecting approval by the AICTE. In the said decision, the Supreme Court has clearly held that once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard and held as under:

"25. It is also a settled principle that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE Act. ..."

23. In Surinder Kumar Dhawan's case (supra), the Supreme Court has held that court's interference in academic/educational matters is not proper and courts cannot by their orders create courses or continue courses or prescribe lower qualifications for admission. Their Lordships observed as under: -

"17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, courts will step in. In J.P. Kulshrestha (Dr.) v. Allahabad University10 this Court observed:

"11. ... Judges must not rush in where even educationists fear to tread. ...

17. ... While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."

'24. Reverting to the facts of the present case, it would be appropriate to 10 (1980) 3 SCC 419 notice that the Chairman of the AICTE on 8-8-2017 called from various States the perspective plan of the State Government for setting up of new technical institute or otherwise for the academic session 2018-19 well before the Approval Process Hand Book 2018-2019 is prepared which was sent by the Director, Technical Education on 10-10-2017 in which so far as Bachelor in Pharmacy and Diploma in Pharmacy are concerned, following recommendations were made in the perspective plan qua the establishment of Bachelor in Pharmacy and Diploma in Pharmacy.

"4. Approvals for Diploma Pharmacy and Bachelor of Pharmacy may be granted in districts which do not have Pharmacy colleges."

25. The petitioners made their applications in accordance with the Regulations, 2016, particularly Regulation 4.18. Regulation 4.18 of the Regulations provides as under:

"4.18 The State Government/UT Administration and the Affiliating University/Board shall forward their views on the applications received under Clause 4.1 as applicable, with valid reasons along with the perspective plan of the State, within a period of 21 days from the date of receipt of applications which shall be taken into account by the Regional Committee for further processing for grant of approval. If the application is not processed further, the processing fee after a deduction of 50000/- (Rupees Fifty thousand only) shall be refunded to the applicant.

If the views of the State Government/UT Administration and the Affiliating University/Board are not received within a prescribed time schedule as mentioned in the Approval Process Handbook, it shall be presumed that they do not have any objection and the Council shall proceed further for processing of applications. However, the Council shall consider the previous communications, if any, received from the State Government/UT administration, the Affiliating University/Board against any Institutions."

26. Thereafter, the petitioners' cases were considered by the Central Regional Committee of the AICTE in its meeting held at Bhopal on 9-2-2018. The extract of the minutes of the meeting states as under: -

"To consider for Scrutiny as per perspective plan received from the Director, Directorate of Technical Education, Govt. of Chhattisgarh, Raipur regarding setting up of new Institutes for the academic year 2018-19.

The Regional Committee discussed and considered the proposal submitted by the various Societies/Trusts for establishment of new technical institutions for the academic year 2018-19 in the State of Chhattisgarh. The views/perspective plan for the academic year 2018-19 received from Directorate of Technical Education, Govt. of Chhattisgarh was discussed by the committee in details and recommended for further processing for establishment of only new Pharmacy institutions in those districts where no existing Pharmacy Institutions in the State of Chhattisgarh and no other new Institutions in the State."

27. Thereafter, the petitioners' cases were considered by the Re- Scrutiny Committee constituted as per the Regulations, 2016, the report of which states as under: -

REPORT OF RE - SCRUTINY COMMITTEE State (DTE) NOC / Receipt date and district Not presented xxx xxx xxx As per DTE Perspective Plan & Regional Committee decision deficiency noted.

1. Signature of the Expert (Academic) 2. Signature of the Expert (Legal)

3. Signature of the Expert (Architect/Civil Engineer)

28. Thereafter, the impugned order dated 4-4-2018 (Annexure P-1) was passed which clearly states that the petitioners' applications are rejected as per the Re-Scrutiny Committee report and the EVC report. Thus, the petitioners' applications have been rejected mainly on two grounds that (i) NOC has not been granted by the Director, Technical Education and (ii) as per the perspective plan and the Central Regional Committee's decision, approval cannot be granted.

29. The said recommendation indicated in the perspective plan only recommends that approval for Bachelor in Pharmacy and Diploma in Pharmacy may be granted in districts which do not have Pharmacy college. It nowhere recommends that approval for Bachelor in Pharmacy and Diploma in Pharmacy courses may not be granted in the districts in which they have already Pharmacy college, as the said perspective plans clearly recommend for MCA and MBA. Clause 5 of the perspective plan states as follows:

"5. No approvals should be granted for new institutes for M.C.A. and M.B.A. courses as the vacancy in admission these courses is very high. Also there is a large gap in pass-outs of these courses and employment opportunities."

30. Therefore, what is not contemplated in the perspective plan has been read into by the Central Regional Committee and also by the Re-Scrutiny Committee and applications have been rejected which is unsustainable in law. There is no such mandate even in the perspective plan that the districts which already have colleges in which courses of Bachelor in Pharmacy and Diploma in Pharmacy are running may not be granted approval for imparting the said courses, coupled with the fact that even the AICTE did not call any report or view point from the State Government as mandated in Regulation 4.18 of the Regulations, 2016 which was imperative in order to consider the applications of the petitioners individually. The generalized perspective plan may not work in view of the requirement of Regulation 4.18 of the Regulations, 2016 to call for the views on the applications by the State Government and this is the reason, the State Government in one of the cases W.P.(C) No.1167/2018 has granted even no objection to the petitioner Institution for running technical courses of Bachelor in Pharmacy and Diploma in Pharmacy, but the petitioners' applications have also been rejected and even the Chairman of the AICTE has informed the petitioners that as per the perspective plan for the year 2018-19 intimated by the State Government, no second pharmacy institute is allowed in a district where already a pharmacy institute exist

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s. 31. Therefore, the order of the AICTE rejecting the applications as per the perspective plan runs contrary to the perspective plan as well as contrary to Regulation 4.18 of the Regulations by not calling the views of the State Government and the said Regulations itself clearly provide that non-submission of report by the State Government shall be presumed that the State has no objection. Likewise, the Central Regional Committee of the AICTE has also misread the perspective plan of the State Government which nowhere prohibits the opening of new colleges to impart Bachelor in Pharmacy and Diploma in Pharmacy courses in the districts which already have pharmacy institutions running Bachelor in Pharmacy and Diploma in Pharmacy. The AICTE has already ignored the binding observation of the Supreme Court rendered in Jaya Gokul Educational Trust (supra) and Rungta Engineering College, Bhilai (supra). 32. Thus, I am of the considered opinion that the rejection of the petitioners' applications for Bachelor in Pharmacy and Diploma in Pharmacy courses by misreading the perspective plan which nowhere prohibits opening of pharmacy institution in the districts in which they have already pharmacy institutions to run and impart Bachelor in Pharmacy and Diploma in Pharmacy courses, is ultra vires to the Regulations, 2016 and the perspective plan itself and runs contrary to the judgments rendered by the Supreme Court in Jaya Gokul Educational Trust (supra) and Rungta Engineering College, Bhilai (supra), as the AICTE has rejected the applications solely basing the perspective plan of the State Government and that too by misreading the perspective plan which is not there in the said plan as for MBA and MCA the State Government has clearly mandated that it should not be granted, particularly when as per the AICTE plan, one of the petitioners' districts is educationally backward district and as per the perspective plan, the demand of Bachelor in Pharmacy and Diploma in Pharmacy is continuously good. 33. As a fallout and consequence of the aforesaid discussion, the order passed by the AICTE vide Annexure P-1 dated 4-4-2018 is hereby set aside. The matter is remitted to respondent No.2 AICTE for consideration and process in accordance with law keeping in view the time limit prescribed by the Supreme Court in Parshvanath Charitable Trust (supra). Since appeal could not be preferred for want of availability of operative web portal, the writ petitions have been preferred by the petitioners herein. {See paragraphs 39 and 40 of the decision of the Supreme Court in Parshvanath Charitable Trust (supra).} 34. The writ petitions are disposed of in aforesaid terms. No order as to cost(s).
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