Decision of AICTE for running institution can be implemented only before the commencement of academic session

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.9039 OF 2011

Sri Balaji Society, a Trust running the following  Institutes:

1. Balaji Institute of Modern Management

(BIMM)

2. Balaji Institute of Telecom & Management

(BITM),

3. Balaji Institute of International Business

(BIIB).

4. Balaji Institute of Management & HRD

(BIMHRD).

All having their respective addresses

at 55/2-7, Tathawade, Wakad,

Pune-411 004 represented through the

President of Sri Balaji Society Prof.

(Colonel A. Balasubramanian)                                                             …...Petitioners.

V/s.

1. All India Council for Technical Education

(AICTE), 7th Floor, Chanderlok Building

Janpath, New Delhi-110 001 represented

through the Chairman, AICTE and the

Member Secretary, AICTE.

2. Union of India,

Ministry of Human Resource

Development, Shastri Bhawan,

Dr. Rajendra Prasad Road,

New Delhi - 100 001.

3. Directorate of Technical Education,

Maharashtra State, Mumbai, having

its office at 3, Mahapalika Marg,

Post Box No.1967, Mumbai-400 001.

4. The Regional Officer,

AICTE-Western Regional Office,

having office at 2nd Floor, Industrial

Assurance Building, V.N. Road,

Opp. Churchgate Railway Station,

Churchgate, Mumbai - 400 020.

5. State of Maharashtra through Principal

Secretary, Higher & Technical Education,

Mantralaya, Mumbai - 400 032.                                                      …...Respondents.

Mr. Iqbal Chagla with Navroze Seervai, senior Advocates with Birendra Saraf, Hitesh Jain, Subhash Jadhav & Ms. Stuti Gupta i/b. ALMT Legal for the Petitioners.

Mr. A.A. Kumbhakoni with Rui Rodriques for the respondent No.1.

CORAM : J.P. DEVADHAR AND A.R. JOSHI, JJ.

JUDGMENT RESEVED ON : 5TH DECEMBER, 2011.

JUDGMENT PRONOUNCED ON : 9TH DECEMBER, 2011.

JUDGMENT (PER J.P. DEVADHAR, J.)

1) Rule, returnable forthwith. By consent, the petition is taken up for final hearing.

2) The petitioners are aggrieved by the communications dated 5/10/2011 and 21/10/2011 whereby the petitioners are informed that the All India Council for Technical Education (AICTE) as well the Appellate Committee of the AICTE respectively, have declined to grant extension of approval to the four management institutes run by the petitioner, during the academic year 2011-12. The petitioners seek a Writ of Certiorari for quashing the said communications and by a Writ of Mandamus seek an order directing the AICTE to forthwith grant extension of approval to the petitioners for the academic year 2011-2012.

3) Facts relevant for the present Writ Petition are that the petitioner Society is a charitable Trust established under the Bombay Public Trust Act, 1950 and also under the Society's Registration Act,  1860. The said Trust inter alia runs the following institutions at Pune since 1999, 2002, 2003 and 2004 respectively.

A) Balaji Institute of Modern Management (BIMM).

B) Balaji Institute of Telecom and Management (BITM).

C) Balaji Institute of International Business (BIIB).

D) Balaji Institute of Management and HRD (BIMHRD).

4) AICTE is established under Section 3 of the All India Council for Technical Education Act, 1987 ('1987 Act' for short). It is the duty of the AICTE as per Section 10 of the 1987 Act to take all steps to ensure co-ordinated and integrated development of technical education and maintenance of standards by the technical institutions throughout the country. For that purpose, Sections 22 & 23 of the 1987 Act empowers the Central Government and the AICTE respectively to make rules and regulations by notification in the official gazette, which under Section 24 of the 1987 Act are required to be laid before the Parliament.

5) It is not in dispute that though the aforesaid four institutes were established by the petitioners in the years 1999, 2002, 2003 and 2004 respectively, the AICTE granted its initial approval to the petitioner Trust to run the above institutes from the academic year 2007-08 (commencing in June, 2007) by its communications dated 13-12-2007, 15/17-10-2008, 13-12-2007 and 17-10-2007 respectively.

6) As per the norms laid down by the AICTE, every approved technical institute is required to obtain extension of approval every year from the AICTE. It is not in dispute that in the present case, in respect of the four management institutes run by the petitioner Trust, the AICTE after granting initial approval for the academic year 2007-08, has granted extension of approval for the academic year 2008-09, 2009-10 and  2010-11 respectively.

7) For the academic year 2011-12, the AICTE initially issued a notice to the effect that the online applications seeking extension of approval for the academic session commencing from 1/6/2011 to 31/5/2012 shall be made by the institutes between 30/12/2010 to 28/2/2011 and the same would be processed by AICTE between 1/3/2011 to 31/5/2011. By a subsequent announcement on the AICTE web portal, the dates for receiving the online applications were extended upto 20/4/2011. The AICTE has also published a Handbook called the 'Approval Process Handbook' for 2011-12 wherein the detailed procedure and minimum conditions which the institutes must fulfill in order to seek extension of approval have been set out. It is relevant to note that, pending the extension approval process, the AICTE by its notice has permitted the institutes to commence the admission process  for the academic year 2011-12 after 31/3/2011.

8) Accordingly, on 9/10-3-2011 and subsequently on 26/3/2011 the petitioners have made online applications seeking extension of approval for the academic year 2011-12 which is within the time stipulated by the AICTE. The institutes run by the petitioners had commenced the admission process after 31/3/2011 as per the notice published by the AICTE. Thereafter, pending extension of approval, the four institutes commenced the academic session from 1/6/2011 as permitted by the AICTE.

9)On processing the petitioner's application, the AICTE generated several deficiency reports in June and July, 2011 and admittedly all those deficiencies noticed in the reports have been duly complied with by the four institutes and there are no deficiencies which are yet to be removed.

10) On 30/8/2011 the AICTE through its website granted extension of approval to the four institutes of the petitioners for the academic year 2011-12 which had already commenced academic session from 1/6/2011. It was stated in the approval that the said approval is subject to the condition that the institution shall follow and adhere to the regulations, guidelines and directions issued by AICTE from time to time.

11) However, the said extension of approval granted to the petitioners on 30/8/2011 was withdrawn by the AICTE within few hours of its display on the website. It is relevant to note that even after the withdrawal of the approval by the AICTE on 30/8/2011 itself, the Western Regional Office (WRO) of AICTE at Mumbai sent an email on 18/9/2011 calling upon the petitioners to download the approval granted on 30/8/2011 and intimate the WRO if, there is any inconsistency in the grant of extension of approval, for correction.

12) When the Director of the petitioners approached the WRO of AICTE to enquire as to the reason on the basis of which the grant of extension was arbitrarily withdrawn, the said Director of the petitioners was orally informed that the extension of approval granted on 30/8/2011 as also the email sent on 18/9/2011 was due to technical error.

13) The petitioners thereupon placed the above facts on record and by various letters repeatedly called upon the AICTE to grant extension of approval immediately. As the AICTE failed to do the needful, the petitioners filed a Writ Petition bearing No.8150 of 2011 which was disposed of on 13/10/2011 with a direction to the Appellate Committee of the AICTE to pass an order on the petitioner's applications seeking extension of approval, after giving an opportunity of hearing to

the petitioners.

14) On 15/10/2011 the petitioners received a communication dated 5/10/2011 from the Advisor (Approval) AICTE wherein it was stated that the Council has decided "not to grant extension of approval to those institutions where CBI has filed charge-sheets" and since the President of the Petitioner Trust has been charge sheeted by the CBI the extension of approval cannot be granted to the petitioners.

15) Thereafter, in accordance with the order passed by this Court in Writ Petition No.8150 of 2011, the Appellate Committee of the AICTE heard the representative of the petitioners and by a

communication dated 21/10/2011 the Advisor (Approval) AICTE has informed the petitioner that the Appellate Committee has upheld the decision of the AICTE.

16) Challenging the communication of the AICTE dated 5/10/2011 as also the communication dated 21/10/2011 containing the decision of the Appellate Committee, the present Writ Petition is filed. During the course of hearing, the counsel for the AICTE has placed on record the decision of the AICTE dated 3/4-10-2011 based on which the communication dated 5/10/2011 was issued and also the decision of the  Appellate Committee dated 20/10/2011 based on which the communication dated 21/10/2011 was issued.

17) From the decision of the AICTE as also the decision of the Appellate Committed of the AICTE, it is evident that the only ground on which the extension of approval for the academic year 2011-2012 has been denied to the petitioners is that Prof. A. Balasubramanian, President of the petitioner Trust has been charge sheeted by the CBI on 30/11/2010. In fact, Mr. Kumbhakoni, learned counsel appearing on behalf of the AICTE fairly stated before us that apart from the chargesheet filed against the President of the petitioner Trust, there is no other deficiency on the basis of which extension of approval can be denied to the petitioner's four management institutes during the academic year 2011-2012.

18) The question, therefore, to be considered is, whether the AICTE having granted the initial approval to the four management institutes run by the petitioner Trust from the academic year 2007-08 and having granted extension of approval from time to time for the academic years 2008-09, 2009-10 and 2010-11, is justified in refusing to grant extension of approval for the academic year 2011-12 on the ground that the CBI has charge sheeted the President of the petitioner Trust on 30/11/2011 ?

19) As rightly contended by Mr. Iqbal Chagla, learned senior Advocate appearing on behalf of the petitioners, there are no rules or regulations framed under Section 23 or 24 of the 1987 Act either by the Central Government or the AICTE to deny extension of approval to an institution if any of its member or trustee is charge sheeted by CBI. Even  the 'Approval Process Handbook' ('Handbook' for short) published by the AICTE for the academic year 2011-2012 does not empower the AICTE to deny extension of approval on that ground. In fact, para 3.1(d) of Chapter II of the Handbook for the academic year 2011-12 reads thus :-

" 3.1(d) No increase shall be given to Institutions where a CBI / CVC / any other investigation agency / Anti Ragging / Punitive action initiated by AICTE for any violation in the norms and standards / enquiries are pending."

It is relevant to note that para 3.1(d) in Chapter II of the 'Approval Process Handbook' published by the AICTE for the academic year 2012-2013 reads thus :-

3.1(d) Any Institution / Society / Trust / Section 25 company or a member belonging to these if charge-sheeted, shall not be considered for extension of approval unless they are acquitted."

Thus, it is evident from the Handbook published by the AICTE for the academic year 2011-2012 that where any enquiry by CBI / CVC / any other investigating agency is pending against an institute, the AICTE is not empowered to deny extension of approval, but in such a case, pending enquiry the institution cannot be given any increase in the intake of students. In the present case, no increase is sought by the petitioners. Therefore, the impugned decisions of the AICTE as also the decision of the Appellate Committee of the AICTE in refusing to grant extension of approval for 2011-2012 being contrary to the 'Approval Process Handbook' for 2011-2012, the said decision cannot be said to be in accordance with law.

20) It is however contended by the counsel for the AICTE that once a policy decision is taken by the AICTE on 10/6/2011, not to grant extension of approval to those institutions against which CBI has filed a charge-sheet and in the present case, since charge-sheet has in fact been filed on 30/11/2010, the AICTE was justified in refusing to grant extension of approval to the petitioners' four management institutions for the academic year 2011-2012.

21) We see no merit in the above contentions, because, firstly, the AICTE by its notice has permitted all the approved institutions to commence admission process for the academic year 2011-2012 after 31/3/2011 and accordingly, the four institutions of the petitioner Trust have commenced admission process after 31/3/2011 and in fact, the academic session for the courses conducted by the four institutions has actually commenced on 1/6/2011. Therefore, the policy decision taken by the AICTE on 10/6/2011 could not be applied for the academic year 2011-12 as the students have been admitted to the respective courses prior to the policy decision and even the academic session hascommenced prior to the policy decision dated 1/6/2011. Secondly, the policy decision dated 10/6/2011 does not seek to amend para 3.1(d) of the 'Approval Process Handbook' for 2011-2012 which specifically provides that where the investigation by CBI / CVC, etc. is pending against an institute, then, such institute would not be entitled to increase in the intake of students. Since para 3.1(d) of the Handbook for the academic year 2011-12 has not been deleted or substituted, it would not be open to the AICTE to contend that the policy decision dated 10/6/2011 would apply to an institution where the academic session for the academic year 2011-12 has commenced on 1/6/2011 in accordance with the norms laid down by the AICTE. Thirdly, the AICTE has implemented the policy decision dated 10/6/2011 by substituting para 3.1(d) in Chapter II of the Handbook for the academic year 2012-13. Therefore, without amending or substituting para 3.1(d) in Chapter II of the Handbook for 2011-12 and in fact substituting para 3.1(d) in Chapter II of the Handbook for 2012-03, the AICTE is not justified in arguing that  the policy decision dated 10/6/2011 is applicable to the academic year 2011-12.

22) Apart from the above, if the policy decision dated 10/6/2011 was intended to apply for the academic year 2011-12, then, the AICTE after the policy decision dated 10/6/2011, would not have processed the petitioner's applications in June - July, 2011 and point out the deficiencies noticed by it. In any event, if the policy decision dated 10/6/2011 was to apply for the academic year 2011-12, the AICTE would not have granted extension of approval to the petitioners on 30/8/2011 for the academic year 2011-12. Assuming that the said approval was granted due to technical error, the AICTE which is the apex body controlling and monitoring the technical education in the country, could not be said to be oblivious of the fact that where thousands of students have secured admissions in an institute as per the norms laid down by the AICTE and where the academic year has commenced as per the norms laid down by the AICTE, then, any decision of the AICTE to deny extension of approval to that institute would ruin the carrier of those thousands of students. Therefore, in the facts of the present case, having permitted the petitioners to admit students after 31/3/2011 for the respective courses in the academic year 2011-12, having permitted the petitioners to commence the academic session from 1/6/2011, having processed the applications of the petitioners in June - July, 2011 even after the policy decision dated 10/6/2011 and having granted the extension of approval on 30/8/2011 even after policy decision dated 10/6/2011, it is not open to the AICTE to contend that in view of the said policy decision the petitioners cannot be granted extension of approval for the academic year 2011-12.

23) It is interesting to note that the charge sheet filed by the CBI on 30/11/2010 records that the President of the petitioner Trust  dishonestly and fraudulently with intention to cheat the AICTE made false representations and on the basis of such false representations obtained initial approval from the AICTE, for running the aforesaid four institutions and, therefore, the said President of the petitioner Trust is liable to be punished under Section 420 of the Indian Penal Code.

24) In the present case, we are neither concerned with the validity of the charge sheet dated 30/11/2010 nor with the validity of the policy decision dated 10/6/2011. We are only concerned with the question as to whether the AICTE was justified in applying the policy decision taken by the AICTE on 10/6/2011 for the academic year 2011-12, when the academic session has already commenced from 1/6/2011 ?

25) In the present case, the AICTE on consideration of the representations made by the President of the petitioner Trust has chosen to regularise the four institutions run by the petitioner Trust from the academic year 2007-08. Even while the CBI investigation relating to the falsity of the representations made by the President of the petitioner Trust while seeking regularisation was in progress, the AICTE has chosen to grant extension of approval for the academic years 2008-09, 2009-10 and 2010-11. Thus, it is evident that in so far as the AICTE is concerned, the falsity in the representations made by the President of the petitioner Trust, if any, did not preclude the AICTE from regularizing or granting extension of approval from time to time. Assuming that the

AICTE was waiting for the CBI to file its final report, the AICTE ought to have acted immediately after the CBI report was filed on 30/11/2010. Instead, the AICTE permitted the petitioners to admit the students after 31/3/2011 for the academic year 2011-12, permitted the petitioners to commence the academic sessions from 1/6/2011 and even after the policy decision dated 10/6/2011 called upon the petitioners in June - July, 2011 to rectify certain deficiencies and on removal of those deficiencies granted extension of approval on 30/8/2011 which was subsequently withdrawn. In these circumstances, the impugned decision of the AICTE and the decision of the Appellate Committee of the AICTE to the effect that the policy decision dated 10/6/2011 applies for the academic year 2011-12 and accordingly declining to grant extension of approval for the academic year 2011-12 in October, 2011 cannot be said to be bonafide and hence liable to be quashed and set aside.

26) In the result, the Writ Petition is allowed. Impugned decision of the AICTE as well as the decision of the Appellate Committee upholding the decision of the AICTE, which are intimated to the  petitioners vide communications dated 5/10/2011 and 21/10/2011 are quashed and set aside and the AICTE is directed to grant the extension of approval to all the four institutions of the petitioner Trust for the academic year 2011-12 within four weeks from today. Rule is made absolute in the above terms with no order as to costs.

                                      (A.R. JOSHI, J.)                                                                                                          (J.P. DEVADHAR, J.)