Full Text
Judgement Reserved on : 26.06.2019
JUDGMENT
BRAHMANAND GROUP OF INSTITUTIONS ..... Petitioner
Through: Mr. Pankaj Kumar, Advocate.
Through: Mr. Anil Soni, Advocate for AICTE.
1. The present writ petition has been filed seeking quashing of the Scrutiny Report dated 13.09.2018, rendered by the All India Council for Technical Education (hereinafter referred to as „AICTE‟) as also the quashing of the extension of approval letter dated 29.04.2019 whereby, the respondent No. 1 has disallowed the intake of any seat in the course of Bachelor of Pharmacy (hereinafter referred to as „B. Pharma‟) for the academic year 2019-2020. A direction is sought to respondent No. 1 to issue extension of approval to the petitioner college for 60 seats in B.Pharma for the academic year 2019-2020 and a direction to the University/Respondent No. 2 to provide affiliation for the said course. 2019:DHC:3639
2. The petitioner college has been established under the aegis of Brahmanand Educational and Charitable Trust and its medical college is affiliated to Dr. Abdul Kalam Technical University, Lucknow (U.P.).
3. It is the case of the petitioner that the college has been running the course of B. Pharma since 2010 and ever since, the required approvals had been granted by the respondents year after year. For the academic year 2018- 2019, respondent No. 1 permitted an intake of 120 students, whereas respondent No. 3, which is Pharmacy Council of India (hereinafter referred to as „PCI‟), gave permission only for 60 seats. It is averred that since permission was only for 60 seats, petitioners employed 17 faculty members based on the permitted strength of the students, which was 60.
4. The inspection team of Respondent No. 1 carried out scrutiny of the college on 13.09.2018 and in the Report, it was found that the seats in the Bachelor of Architect had been reduced by respondent No. 1 to 50% and in the column of B. Pharma, the word, „NIL‟ was mentioned. Petitioner avers that he understood the word „NIL‟ to mean that there was no reduction in the seats permitted earlier and could not construe it to mean no intake at all, since in that case, Respondent No. 1 would have given a separate intimation. It is, thus, the averment of the petitioner that he had no reason to appeal against the Scrutiny Report and hence no appeal was filed.
5. The petitioner further pleads that it was only when an extension of approval letter dated 29.04.2019 was issued, that he learnt that the remark „Zero‟ had been put in the column of proposed intake for B. Pharma for the academic year 2019-2020, and the Petitioner was not permitted any intake for this year.
6. What the petitioner has pleaded is that, even if, the report of the Scrutiny Committee is to be accepted, the number of faculty was 17. Since the PCI had only permitted and sanctioned 60 seats, the requirement as per the student faculty ratio was only 16. As against this requirement, the petitioner still had 17 faculty members and thus there was no reason for the AICTE to have denied the extension of approval.
7. The petitioner then preferred a representation on 07.05.2019 for granting approval and getting no response, he has filed the present petition impugning the Scrutiny Report as well as the extension of approval letter.
8. Pursuant to the notice issued by this Court, Respondent No. 1 has filed a counter affidavit. The stand of Respondent No. 1 in the counter affidavit is that AICTE is a Statutory body established by an Act of Parliament, to provide for establishment of an All India Council for Technical Education to regulate technical education throughout the country. Section 10 of the AICTE Act provides the functions of the Council, which, amongst others is to take steps to ensure coordinated and integrated development of Technical education and maintenance of standards. Section 10(k) of the Act empowers the AICTE to grant approval for starting new Technical Institutions and introduction of new courses. To carry out these functions, Regulations have been framed for grant of approval for starting new Technical Institutions, introduction of courses, programmes, intake capacity of seats etc. The AICTE has also evolved a Handbook for Approval Process (HAP), which details the procedures as well as the minimum conditions which an Institute must fulfil to seek approval for starting new Institutions or for variation of the conditions in the existing Institutes.
9. It is admitted in the counter affidavit that the petitioner had been running the course of B. Pharma and other courses since 2010 and had the approval of AICTE, year after year upto the academic year 2018-2019. For the academic year 2018-2019, the AICTE had approved an intake of 120 students for B. Pharma. It is pointed out that as per decision of the Council, it was decided that a scrutiny be conducted in respect of the Institutes having less than 30% of the approved intake consistently for the last 5 years. Therefore, on 13.09.2018, a scrutiny was conducted in respect of the petitioner Institute. The Scrutiny Committee observed certain deficiencies which are detailed in the Report of 13.09.2018. Based on this, the Committee recommended „NIL‟ intake for the B. Pharma course for the academic year 2019-2020. It is also pleaded that the Report was uploaded on the portal of the AICTE for information and necessary action.
10. In the affidavit, it is further stated that though the petitioner did not appeal against the Report, yet in order to be fair, it was decided to place the matter before the Standing Appellate Committee (hereinafter referred to as „SAC‟) and the petitioner was asked to appear before the Committee on 02.02.2019. The petitioner, however, chose to absent himself on the date of hearing, and therefore, the AICTE, keeping in view the recommendations of the SAC, the Regulations etc., issued an order on 29.04.2019 specifying „Zero‟ against the intake for B. Pharma for the academic year 2019-2020. In fact, it is also pointed out that a Speaking Order was also passed by them on 15.05.2019.
11. On merits, it is averred in the affidavit that the Scrutiny Report clearly reflects that a remark „NIL‟ was given in the column, which had a heading “proposed intake 2019-20”. It was thus clear that the answering respondent had informed that there will be no intake for the said academic year and there was no ambiguity.
12. On merits, it is also averred that under Appendix VII of the HAP 2019-2020, the ratio of faculty to student for Pharmacy is 1:15 and hence for an approved intake of 120 students for the earlier year of 2018-2019, the Institute should have employed a faculty of 32. It is also pleaded that the Apex Court, in the case of Parshavanath Charitable Trust vs. All India Council for Technical Education (2013) 3 SCC 385, has set out the timelines for admission to Technical Institutions and the last date for giving approval is the 30th April of an academic year and therefore the answering Respondent is in no position to consider the case of the petitioner at this stage.
13. Learned counsel for the petitioner contends that no doubt that AICTE had granted permission for intake of 120 students in the academic year 2018- 19 and even for the earlier years but respondent No. 3 had given permission only for 60 seats for the first time in the year 2018-2019. Since the permission was only for 60 seats the petitioner had engaged a faculty of 17 on the basis of 60 seats and there was no reason why the faculty should have been engaged for 120 seats.
14. The next contention of the learned counsel for the petitioner is that a perusal of the Scrutiny Report in the column of recommendations would show that under the heading, “proposed intake 2019-20” for the B. Architecture course where 50% was mentioned, it was also specified that this was on account of „reduction‟, but for B. Pharma, only the word „NIL‟ was mentioned and therefore, the natural interpretation was that there was no reduction for the B. Pharma course. The learned counsel also lays emphasis on the words “% Reduction/Closure of Course” mentioned with the words proposed intake 2019-20 in the Heading of the said column. We extract the relevant portion of the Report as under: “RECOMMENDATION OF THE COMMITTEE Name of the Course Level Approved Intake 2018-19 Proposed Intake 2019-20 (% Reduction/Closure of Course
15. He thus submits that the Scrutiny Report has been rightly construed by the petitioner and the action of the Respondents in not granting approval to the petitioner for intake of seats for B. Pharma course for the academic year 2019-20 is illegal and arbitrary.
16. Learned counsel further submits that the college has been running successfully for the past several years and there is no reason why the college should be deprived of running the B. Pharma course for the current academic year.
17. Learned counsel for the petitioner further submits that the impugned decision taken by Respondent No. 1 is unreasoned, cryptic in nature and selfcontradictory. No reason has been given to deprive the petitioner of his valuable right of running the B. Pharma course in his college. He relies on the judgment of the Apex Court in the case of M/s. Kranti Asso. Pvt. Ltd. & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496, for the proposition that recording of reasons is a must when decisions are taken by quasi-judicial or administrative authorities, as this is a must for transparency as well as to enable the person effected to know as to what has weighed with the Authority to decide against him. Learned counsel submits that the petitioner Institute fulfills all the minimum requirements and has the necessary infrastructure as well as the faculty to continue the B. Pharma course and hence Respondent No. 1 be directed to issue extension of approval to the petitioner college for 60 seats in B. Pharma for the academic year 2019-20 based on the sanction of PCI.
18. Per contra Mr. Anil Soni, learned counsel for respondent no. 1 submits at the outset that the academic year 2019-20 has started and in terms of the judgment of the Parshavanath Charitable Trust (supra) and the timelines made therein, no approval can be given by the AICTE at this stage once the deadline of 30th April, 2019 has gone by. He further submits that once the permission had been granted by the AICTE for 120 seats, the petitioner was bound to follow the student faculty ratio and engage a faculty of 32. Having chosen to violate the said ratio and engage a faculty of 17 for the academic year 2018-19, the petitioner has been rightly disallowed any intake in the B. Pharma course for the current academic year. He further submits that the Scrutiny Report is absolutely clear and unambiguous. The word “NIL” clearly indicated that the permission for admitting students in the B. Pharma course was being denied and the word “NIL” only connoted „zero‟ and cannot be construed in any other way.
19. Learned counsel further argued that assuming that the petitioner had any confusion on the interpretation of the word NIL he could have approached the AICTE to seek a clarification. He further points out that in fact, to be fair to the petitioner, the matter was placed before the Appellate Committee, but the petitioner had chosen to remain absent before the Committee. Had he appeared before the Committee, he could have sought a clarification and any confusion in his mind could have been sorted out. He thus submits that there is no reason why the relief should be granted to the petitioner and there is no merit in the present petition.
20. Learned counsel for the respondent has also relied upon a judgment of a Division Bench of this Court in LPA 540/2015 titled ACM College of Pharmacy vs. AICTE, which was followed by another Division Bench of this Court in LPA 272 of 2017 in Children’s Academic Society vs. AICTE, to contend that the law of grant of recognition is not a formality and the conditions of recognition are to be construed and applied strictly, as also for the proposition that no relief can be granted to any Institute in the mid academic session, as the time lines for making admissions have been strictly laid down by the Apex Court in the case of Parshavanath Charitable Trust (supra).
21. I have heard the learned counsel for the parties and examined their rival submissions.
22. A perusal of the Report of the Scrutiny Committee reveals that the reason of declining the extension of approval to the petitioner college for B. Pharma course for the academic year 2019-20 is that the Institute had a faculty of 17 members for the academic year 2018-19, as against the requirement/norm of having 32 faculty members. Page 3 of the said Report contains the application summary and the details of the faculty members. It is mentioned on page 3 of the Scrutiny Report that the approved intake for 2018-19 was 120 and the total number of faculty members required as per norms was 32. It is also mentioned that as against the norm, the petitioner Institute had employed 17 faculty members for the B. Pharma course. The petitioner has also placed on record the letter issued by the Pharmacy Council of India, which is a Statutory body under the Ministry of Health and Family Welfare. Reading of the said letter clearly indicates that the PCI had sanctioned the admission of 60 seats to the petitioner Institute as against the 120 permitted by the AICTE. Relying on the sanction by the PCI for only 60 seats, the petitioner had employed a faculty of 17 members. I find merit in the contention of the petitioner that if only 60 admissions were to take place, there was no need to deploy a faculty of 32 members, as that would be a highly disproportionate ratio. In my view, the petitioner had rightly decided to deploy 17 members as faculty for 60 seats.
23. I also find merit in the contention of the learned counsel for the petitioner that the word „NIL‟ indicated in the Scrutiny Report against the B. Pharma course could possibly connote that what was being stated was that there was no reduction in the seats permitted earlier. The heading of the relevant column mentions, the proposed intake for the current academic year. It is significant to point out that for the Architecture Course, it is mentioned in the relevant column that the proposed intake would be 50% but it is also mentions, „reduction‟. Therefore, if one reads the proposed intake for B. Arch., it is clear that the intent was clearly to convey that there is a reduction in seats by 50%. However, when it comes to B. Pharma course, neither the word reduction nor closure has been mentioned and therefore, by a plain reading of the word „NIL‟, the impression that one would get would be that no reduction is being envisaged in the number of seats permitted in the past. In view thereof, the petitioner cannot be blamed for reading the word „NIL‟ to connote „no reduction‟ in the seats. Thus, the learned counsel is right in his submission that since there was no reduction in the seats for B. Pharma, he had no reason to have a grievance with the Report and therefore no basis to appeal against the same. I cannot thus agree with the contention of the learned counsel for the respondent that the word „NIL‟ clearly indicated that the permission for admitting the students in the B. Pharma course was being denied in toto.
24. No doubt, there is weight in the submission of respondent No. 1 that the petitioner should have appeared for the hearing before the SAC, but the question that arises is that if the Scrutiny Committee has given a wrong report as regards the number of faculty required and the word „NIL‟ has been correctly understood by the petitioner then merely because the petitioner did not appear before the SAC would he be disentitled to raise his grievance before this Court. In my view, the answer to the question is a clear “NO”. Surely, if the petitioner would have appeared before the SAC, it may have been to its advantage and he could have put his point forth or sought a clarification, but only because he has not appeared before an Appellate Committee, cannot be a ground which can persuade me to hold that the petitioner cannot be heard by way of this petition.
25. Insofar as the argument of the petitioner that the impugned decision is unreasoned or non-speaking, in my view, the same deserves to be rejected. The Scrutiny Committee Report has given the reason for rejection being under deployment of the faculty members and no further reasons were required to be given.
26. Having therefore examined the entire issue, I am of the view that the petitioner has been wrongly denied the intake of students for B. Pharma course for the Academic Year 2019-20. The action of the respondents in declining the approval on the ground that the petitioner should have had a faculty of 32 members is illegal and arbitrary. With a sanction of 60 seats by the PCI, the petitioner was well justified in having a faculty of 17, which, in fact, was more than the required ratio of having 16 faculty members. I, therefore, hold that the action of the respondent No. 1 in denying the extension of approval to the petitioner in the B. Pharma course for the academic year 2019-20 is illegal and the Scrutiny Report as well as the said letter dated 29.04.2019 are hereby quashed and set aside.
27. The judgment in the case of ACM College of Pharmacy (supra) and the Children’s Academic Society (supra) of the Division Benches of this Court relied upon by the learned counsel for the respondent are on two propositions viz., (a) the conditions of recognition and the Regulations for admission process have to be strictly followed, (b) the schedule and the time lines laid down by the Apex Court in the case of Parshavanath (supra) cannot be varied by the AICTE. The two judgments therefore are relevant to the present case to the extent of deciding the relief that can be granted to the petitioner at this stage, when the deadline of 30.4.2019 is over and the AICTE has no power or jurisdiction to even entertain any request for approval.
28. There is no doubt in my mind that the judgments relied upon by learned counsel for the respondent are binding not only on the AICTE but on the petitioner as well as this Court.
29. The important question that now arises thus is as to what relief can be granted to the petitioner in view of the judgment of the Apex Court as well as the two judgments of the Division Benches of this Court. The letter of denial of extension of approval was issued on 29.04.2019. The petitioner approached this Court after 30.04.2019. The Apex Court in the case of Parshavanath (supra) has in clear terms laid down the Schedule and strict timelines for granting admission for Technical Institutions. Admittedly, in the present case, the last date for grant of approval by the AICTE in terms of the judgment of the Apex Court has expired on 30.04.2019 and therefore, the AICTE has no power or jurisdiction to vary the dates of admission and neither can this Court direct the AICTE to exercise the power and jurisdiction to grant approval beyond the deadline fixed by the Apex Court. At the same time, I cannot shut my eyes to the fact that the petitioner Institution has been wronged and the extension of approval has been illegally denied. Thus the only relief that can be granted to the petitioner at that stage is that if the petitioner applies for approval in the next Academic session of 2020-2021, the application will be considered by the AICTE without taking into consideration the Scrutiny Report for the current year and without being influenced by the denial of approval for the Academic year 2019-20.
30. In my opinion, the interest of the petitioner has been jeopardized due to the wrongful action of the respondent No. 1. Not only has the petitioner lost out on running the B. Pharma course for this academic year, but this has also impacted the larger public interest as 60 seats in B. Pharma course have been wasted out. In matters of Educational Institutions, the Authorities, in my view, should act carefully and cautiously so that Academic sessions are not lost.
31. The reliefs sought in the present petition cannot be allowed and the petitioner cannot be permitted to start the B. Pharma course for the Academic year 2019-20 as the deadline for approval has passed. However, in the facts of this case, I award a sum of Rs.25,000/- to the petitioner as compensation. The said amount would be paid by respondent no. 1 within a period of two weeks from today.
32. The writ petition is accordingly disposed of in above terms. C.M. APPL. No. 23377/2019 (for ex-parte ad interim stay)
33. Since the present petition is disposed of, this application stands dismissed as being infructuous.
JYOTI SINGH (JUDGE) JULY 26th, 2019 rd