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Judgment
J.S. Narang, J.—The petitioner No. 1 is a trust, registered under the Statute with the Registrar of firms and societies. Tamil Nadu and also under the provisions of the Societies Registration Act. It is in a perfect sound, financial condition and has the assets of the value of more than a crore, established with the object of setting up and running of educational institutions. It has been able to set up approximately 12 Colleges and Schools all over the country. An Institution in the name and style of National Institute of Law, has been created and that the trust desires to set up a "Law College" in the State of Haryana.
In the first instance an application dated April 16, 1998 (copy Annexure P-4) was addressed to the Registrar, Mahanshi Daya Nand University, Rohtak (in short "M.D. University"), te respondent. In response thereto, the M.D. University required that the applicant in the first instance should obtain "Approval" from the Bar Council of India and also "No Objection Certificate" from the Govt. of Haryana. Upon submission of the aforesaid approvals and No Objection Certificate, the request for granting affiliation in respect of the Law College would be considered. As a sequel thereto, respective applications were filed before the aforesaid authorises. The Bar Council of India appointed a Committee for Inspection of the Law College at Ballabgarh Faridabad on January 20, 1998 and that upon the report of the said Committee, permission to start the Law College with an intake of 80 students for three years law course and 80 students of five years law course for the academic year 1998-99, was granted accordingly and in this regard communication dated 17.10.1988 was addressed to the Registrar of M.D. University (Copy annexure P-7).
Similarly "No Objection Certificate" was issued by the Government of Haryana vide communication dated January 11, 19_99 (copy Annexure P-8). However apart from other innocuous conditions, three conditions were imposed, which read as under :-
.....
1) All the conditions (for) affiliation prescribed by the University/UGC will be met out by the Trust.
2) The FDK of endowment fund as per University regulations duly pledged in the name of Director of Higher Education will be sent to this office immediately;
3) The College authorities will recruit the staff as per Govt./University guidelines and pay the salary to the staff in the pay scales prescribed by the Govt. from time to time.
.....
Upon receipt of the aforesaid approvals and No Objection Certificate, revised application was submitted to the M.D. University, for granting affiliation and that alongwith the application a fee of Rs. 50,000/- was also deposited. The said application was submitted on April 16, 1998 (copy Annexure, P-4). In pursuant to the aforesaid application, an Inspection Committee was constituted but for the reasons not known, the inspection was not carried out. Numerous reminder letters were issued but to no effect. It had also been pointed out that the time for setting up of Law College for the Session 1998-99 was running out and that the funds invested in this regard would not be useful in the shape of commencement of a College but would cause loss of interest inter alia other damages. The petitioners was aggrieved of in-action on the part of the M.D. University, and therefore, filed Civil Writ Petition No. 15063 of 1999. During the pendency of the aforesaid writ petition, the M.D. University, constituted a new Inspection Committee. In this view of the matter, it was requested that the Inspection Committee may now submit its report within two weeks and thereupon the University was to finalise the issue of affiliation within next two weeks. It was agreed by the University that the Inspection Committee will undertake inspection of the establishment of the petitioner and submit its report within 15 days but the final decision in respect of affiliation may take some time on account of impending changes in the administration of M.D. University.
5.In view of the statements made by the parties, the petition was disposed of vide order dated February 28, 2000 with two directions which read as under :-
".....
(1) The newly constituted Inspection Committee shall undertake the inspection of the establishment of petitioner No. 2 and submit its report to the competent authority of the University within two weeks.
(2) Within two months of the submission of the report by the Inspection Committee the competent bodies of the University shall consider and take a final decision on the issue of affiliation of petitioner No. 2.
If there is any delay in the finalisation of the issue of affiliation of petitioner No. 1 due to some unforeseen reasons, then the parties shall be entitled to file miscellaneous application for extension of time."
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Thus, it is clear that the Inspection Committee was to submit its report within two weeks and that the M.D. University was to take final decision within two months of submission of the report.
The Inspection Committee carried out inspection and submitted report which is dated April 4, 2000 (copy Annexure P-16). Surprisingly, after making various observations, concluded the report by observing that the recommendation to grant affiliation is left to the decision of the "Academic Council". It shall be apposite to notice the words which have been incorporated by the Inspection Committee in this regard which read as under :-
"So far the recommendations to grant affiliation is concerned, the Committee leaves it to the decision of the Academic Council."
The Academic Council of the M.D. University, met on May 30, 2000 and considered report of the Inspection Committee regarding grant of affiliation to the private managed Institutions falling within the territorial jurisdiction of the University to start Law College. In this regard resolved that the Vice Chancellor is authorised to grant provisional affiliation after satisfying that the Institution has adequate facilities to start the course, for which purpose, Inspection Committee be deputed. It is strange that the Inspection Committee did not make any recommendations and left it to the Academic Council and that the Academic Council, instead of deciding the matter, authorised the Vice-chancellor for granting provisional affiliation after obtaining the report from another Inspection Committee. The reasons for setting up another Inspection Committee were not disclosed nor any observation in this regard is stated to have been made by the Academic Council.
However, the Vice Chancellor constituted a fresh inspection Committee which carried out inspection on July 15, 2000 and the detailed report (date not decernible) was submitted. However, it is referred as dated July 15, 2000, copy annexure P-9 while submitting report made categoric recommendations for granting provisional affiliation, the concerned part of the report reads as under :-
".....
Recommendation of the Committee
So far as the recommendation to grant provisional affiliation is concerned, the committee feels and is of the opinion that proposed Institute/College of Law has got required initial infrastructure and other facilities to start law courses of LL.B. Part I of five years course and Part I of three years course w.e.f. the current academic sessions i.e. 2000-2001 for the number of 80 seats in each course (LL.B. 3 years and 5 years) already approved by the Bar Council of India in the N.O.C. available with the Colleges Branch of the University.
The Institute/College shall fulfil the mandatory conditions of the U.G.C., State Government and the M.D. University, Rohtak which may be imposed from time to time apart from the conditions for which the institute has given an undertaking and those conditions laid down in the notorised from on non- judicial stamp papers. The Bar Council of India, New Delhi does not permit the use of term "Institute" as far as the question of affiliated colleges of law of a University are concerned. Hence, the proposed institute of law at Faridabad is advised to change of nomenclature of the said Institute with the consent of the University/Bar Council of India, New Delhi and State Government. In this regard the Committee suggests that the proposed institute may use the nomenclature as "National Law College, Faridabad" or any other suitable name of the law college in conformity of the norms of the Bar Council of India and the M.D. Univetsity, Rohtak, after the institute gets affiliation.
(Dr. L.C. Dhingara) 2. (Dr. Alleque Khan) Convenor.
(Dr. A.s. Chillar)
Does the committee recommend affiliation ? If so, name of classes/courses with maximum number of students for which affiliation is recommended ? (Please give specific details of the conditions imposed subject to which affiliation is recommended).
Yes, the detailed report is enclosed with other supporting documents.
In case of extension of affiliation, has the college/institute fulfilled the conditions imposed by the previous inspection committees. Give condition- wise details/comparative position in the inspection report/recommendations.
Since, this is a case regarding initial affiliation to law courses by the University, the question of extension at this stage does not arise. However, all the conditions laid down in this report shall he complied with by the proposed law college.
(Dr. L.C. Dhingra) 2 (Dr. Alleque Khan) Convener.
(Dr. A.S. Chillar).
In the meanwhile the petitioners had advertised for "walk-in-interview" for identifying staff in the subjects of Hindi, English, Economics, Sociology, Political science and History. In response thereto, the candidates who had appeared and were interviewed, were accordingly identified. Candidates so identified were duly informed to the M.D. University, as is evident from the communication dated August 3, 2000 addressed to the M.D. University (Copy Annexure P-20). But to the surprise of the petitioners, the communication dated August 07, 2000 was received from the M.D. University under the signatures of Deputy Registrar (Colleges) for Registrar, disclosing that the request of the petitioner to start Law College at Faridabad has not been approved. It shall be apposite to notice here that in the meanwhile the Academic Session of 1998-99 as also the academic Session of 1999-2000 were allowed to go-by.
The petitioners were completely disgruntled and dissatisfied that despite the recommendations made by the Inspection Committee while submitting report dated July 15, 2000, the Vice-Chancellor declined to grant the affiliation.
The order dated August 7, 2000 copy Annexure P-21, was made the subject matter of challenge of the present writ petition. Apart from questioning the legality of the impugned order on various grounds, one of the grounds has been that the Vice Chancellor was not competent to pass such order and that granting of affiliation to a College is the prerogative of the Academic Council/Executive Council. During the course of arguments, Division Bench of this court, passed an order dated January 12, 3001, vide which it was directed that the decision regarding grant of affiliation to the institution, being set up by the petitioners, be taken by the Academic Council/Executive Council and that decision in respect of the case of the petitioners be placed before the Court. In pursuant to the aforesaid order, the matter was decided by the Executive Council. It shall be apposite to notice the interim order dated January 12, 2001 passed by the admitting Benchofthis court, which reads as under :-
"The petitioner is, inter alia, aggrieved by the order dated August 7, 2000, by which its petition for grant of affiliation to the Institute of Studies in Law has been rejected by the respondent-University. The petitioner prays that the order (a copy of which has been produced as Annexure P-21) be set-aside and that the respondent-University be directed to grant affiliation from the academic session 2000-01.
During the course of arguments, it has come to our notice that the application for grant of affiliation has to be considered by the Academic Council and the Executive Council of the University. In the present case, it is conceded by the counsel for the University that the matter has neither been considered by the Academic Council nor by the Executive Council. So far as the Academic Council is concerned, it had merely passed on the file to me Vice Chancellor to take a decision. It has failed to apply its mind. Thereafter, the mater was never placed before the Executive Council. The final decision has been communicated by the Dean. College Development Council. He had no jurisdiction to decide the matter.
Mr. Jaskirat Singh states that the decision has actually been taken by the Vice Chancellor. Even if that be so, the Vice Chancellor had no jurisdiction to decide the matter. The case had to be considered by the Academic Council and the Executive Council.
We are not quite happy with the manner in which the University has dealt with the matter so far. It appears that the matter has been unnecessarily delayed. Now we direct the respondent-University to place this case before the Academic Council for consideration. The matter shall then be placed before the Executive Council for a final decision.
We are issuing these directions in view of the provisions contained in Statute 38 of the respondent-University Calender Volume-1, which prescribes the condition for admission of colleges/institutes to the privileges of the University. The final decision shall be placed before the Court on the next date of hearing.
To come up on February 23, 2001.
Copy of the order be given dasti to counsel for the parties on payment of usual charges.
Sd/- Jawahar Lal Gupta, Judge
Sd/- N.K. Sud, Judge.
The Hon''ble Bench observed that the matter has been unnecessarily delayed and that for submitting the decision required to be taken by the Academic Council/Executive Council, the case was adjourned to February 23, 2001 but the compliance of the order was made again after a considerable delay and that the order February 16, 2001, rejecting the claim of the petitioners by the Executive Council, was placed on the court file. A technical objection was taken that neither any prayer nor any ground has been raised for challenging the order passed by the Executive Council. In their regard a civil miscellaneous registered as No. 9660 of 2001 was filed which was allowed and the petitioners were permitted to raise additional grounds against the order of the Executive Council. The writ petition was admitted on May 16, 2001 and the case was ordered to be listed for regular hearing before the Single Bench. In pursuant thereto, the case was taken up for hearing on July 5, 2001. During the course of hearing, it was felt necessary that amended petition should be filed in view of the permission granted by the admitting Bench to raise additional grounds. The amended petition was filed, written statement thereto submitted and so as also the replication.
Learned counsel for the petitioners has submitted that the Executive Council has neither applied its mind nor has passed a judicious order and that the objections which have been raised are meaningless and are not sustainable. In fact, the Executive Council has reiterated the recommendations of the Academic Council, which are stated to have been recorded as Resolution No. 22 in its meeting held on February 6, 2001.
Learned counsel has addressed arguments by taking up the said alleged discussion of the Executive Council in respect of the two Inspection Reports submitted by the two Inspection Committees which are dated March 24, 2000 and April 4, 2000.
It is contended that so far as infrastructures are concerned, upon comparison with the report of the Inspection Committee, which is dated July 15, 2000, it is not decemible as to from where such kind of discussion has been elicited by the Executive Council. My attention has been drawn to the observations made by the Inspection Committee. While making the recommendations it has been categorically opined by the Committee that the proposed Institution/College of Law has got the required initial infrastructures and other facilities to start Law Courses of LL.B. Part I of five years course and part I of three years course with effect from the current academic session i.e. 2000-2001 for the number of 80 seats in each course already approved by the Bar Council of India in the No Objection Certificate available with the Colleges Branch of the M.D. University. The authorities, for coming to a different finding, no reason what-so-ever has been given. It shall be apposite to notice here that the permanent building for housing the Law College is under construction and it was brought to the notice of the Inspection Committee and that the present building is admittedly a temporary building with asbestos sheets/roof. The Inspection Committee itself noticed that the temporary building is close to the D.A.V, College situated in the Institutional/Industrial Area. It shall be appropriate to observe here that the D.A.V. College has been granted affiliation long back by the M.D. University. It is not understandable, if for teaching students in D.A.V. College the environment of the area is conducive, but, however, it is not conducive to teach the Law College Students. The observation of the Executive Council is, therefore, without any meaning. There is no objection taken at any stage in respect of the permanent new building which is to ultimately house the Law College. The learned counsel for the petitioners has apprised this court that this building is likely to be completed by July, 2002.
The observation of the Executive Council in respect of "Faculty" (Teaching Staff) has also been contested by the learned counsel for the petitioners. It has been argued that an advertisement had appeared in the news papers for calling candidates for being appointed on the posts of Lecturers in various subjects as spelt out in the advertisement. The interview was advertised as "walk-in-interview", scheduled to be held on August 2, 2000. In pursuant to "walk-in-interview" faculty staff was identified accordingly and a communication alongwith the identified staff was sent to the M.D. University. It is not understandable as to how the Executive Council is making a reference to the advertisement of February, 1999 and ignoring the latest identification of the staff made on August 03, 2000. It has also been pointed out by the learned counsel for the petitioners that staff may be identified but cannot be selected in the absence of representative of the University and that a representative can only be appointed after the provisional/final affiliation is granted by the University. The observation in respect of teaching staff has been made only with one objective i.e. to reject the request of the petitioners. It shall also be apposite to notice here that so far as observations of Inspection Committee in respect of teaching staff are concerned, the same are positive and in favour of the petitioners. So far as the post of Lecturers meant for Law College in respect of five years course is concerned, an advertisement had been made and the "walk-in-interview" was conducted as aforesaid and the staff was duly identified, which has not been mentioned at all by the Executive Council.
So far as non-teaching staff is concerned, it is not decernible from where the Executive Council has apprised itself that the non-teaching staff does not fulfil the requisite qualification prescribed by the University Council. Whereas, to the contrary, the Inspection Committee in its report dated July 15, 2000 has categorically observed that most of the candidates from the non- teaching staff fulfil the qualifications. The candidates identified for selection for non-teaching posts, fulfill the norms and qualifications laid down by the U.G.C. and the M.D. University, Rohtak. Thus, it is obvious that the observation is venomous. So far as the recommendations of the Inspection Committee are concerned, admittedly no recommendations have been made by the first Committee but the second Committee has made categoric recommendations in this regard but this has been ignored by the Executive Council.
It is strange that Executive Council while discussing various items under specific heads has made reference to short comings pointed out by 1st Inspection Committee but has not made mention of positive observations by 2nd Inspection Committee. The recommendations of the last Inspection Committee have been conveniently ignored, such approach or the Executive Council does not send a healthy message to the society at large.
While discussing the recommendations made by the second Inspection Committee, again the loosely worded observations have been made without even noticing as to what observations have been made by the second Inspection Committee.
The last item relating to Hostel facility has been mentioned, whereas, the Hostel facility has been promised to be arranged - so far as the girls are concerned, agreement dated July 10, 2000 for taking the premises on rent had been placed before the Inspection Committee and so far as boys are concerned, the accommodation as per the requirement was agreed to be arranged soon after the admission process starts. The observation has been made that the agreement for girls hostel was made only five days before the second Inspection. Does it make a justifiable ground to decline the affiliation to the Institution ?
It has been brought to my notice that as per Bar Council of India Rules, provision of a hostel has not been made mandatory and that if there is any hostel provided, the teacher to be in charge of the hostel will be appointed separately. However, while granting provisional affiliation such kind of conditions could have been imposed so far as boys are concerned but the situation did not warrant declining the affiliation.
It has been argued that in the end of the order passed by the Executive Council, the recommendation of the Academic Council as resolved vide Resolution No. 22 dated February 6, 2001 has been adopted, whereas the resolution passed by the Academic Council does not carry any cogent reasons what-so-ever. The observations which have been made by the Executive Council are absolutely contrary to the observations made by the second Inspection Committee report dated July 15, 2000, whereby a specific recommendation has been made for granting provisional affiliation. This fact has been completely ignored.
It has been further argued that in fact the University wanted to set up a Law College at Gurgaon, therefore, did not appreciate or liked the idea of granting affiliation to the petitioners for setting up of a Law College at Balabhgarh (Faridabad). It is apprehended that the Trust which has been and shall be successful in setting up Colleges, would provide far better standard of education than the institution managed by the University itself.
It has also been argued that the objection had been taken in the first instance that statutorily the affiliation can only be granted if the institution is set up at District Headquarter and that Balabhgarh is not the District Headquarter, this objection is meaningless as Balabhgarh falls within the Municipal Limits of Faridabad and in support thereof documentary evidence had been submitted before the Inspecting Committee, which stood duly accepted and admittedly no objection in this regard has been taken by any one, except while filing the written statement to the petition. Thus, the plea is devoid of merit and has been set up as a rouge (ruse ?). The case of the petitioners has been purposely delayed so that the Law Institution set up by the University at Gurgaon would be able to steal march over the Institution to be set up by the petitioners.
On the other hand stand of the respondent is not very cogent and sustainable. However, in the first instance plea taken is that there is no statutory right which vests in the petitioners to seek affiliation as a matter of right, as such, the present petition is not maintainable and therefore, deserves to be dismissed.
It has been further averred that a mandamus cannot be sought as a matter of right. It is the discretionary remedy only in cases where the claimant is able to spell out that statutory duty, which is of a public nature, is not being performed in accordance with the provisions of law. It is also the case of the respondent that the No Objection Certificate has not been obtained from Bar Council of India for Balabhgarh and instead the said certificate has been issued for setting up of Law College at Faridabad, as such, no certificate in the eyes of law can be said to have been issued by the Bar Council. Thus, in the absence of the same, affiliation has been correctly declined.
It is also the plea of the respondent-University that as a matter of policy it has been decided not to grant affiliation to any College/Institution to teach Law Courses. In support thereof reference has been made to the decisions taken by the Academic Council in its meeting held on December 6, 1999 and that the said resolution stands recorded bearing No. 51. The purpose and the object of such a resolution is that by granting affiliation to private or Govt. Colleges/institutions, it would dilute the standard of legal education. Once the affiliation is granted, the standard of the education is not kept and that money is earned which becomes the primary purpose of the institutions. Thus, the University was very cautious in granting affiliation to any-body. It is alleged that the affiliation was declined in the public interest in order to maintain standard of legal education in the country. Thus, the petition merits dismissal on this short ground alone.
I have considered the rival contentions of learned counsel for the parties. I am afraid, I am not impressed at all by the arguments of learned counsel for the respondent. Upon persual of the second Inspection Committee report dated July 15, 2000, it is fair to observe that the case of the petitioners has been recommended by the Committee for granting provisional affiliation, by considering all aspects in accordance with guidelines provided by the M.D. University. The pleas of the University are too flimsy and that the perusal of the impugned order dated February 16, 2001 shows that a very causal and cursory approach has been adopted. In fact, it seems no application of mind has been made. Comparison of the recommendations made by the second Inspection Committee under various heads with the observation made by the Executive Council, shows that except by mentioning the report of Second Committee and the report of the First Committee, in fact the reports have not been perused at all. However, even if accomplishable deficiencies are elicited, the same can be made the condition precedent for granting provisional affiliation. But this would not mean that such conditions should be imposed to be accomplished in a time frame which may not be possible. The approach should have been and should be constructive and positive. No Institution can survive with a negative approach by the University. It must be remembered that the educational Institutions are meant for the Society at large but when the attitude adopted by the University is far away from the public interest, no Institution can survive and be helpful to the Society. If provisional affiliations are granted, this would not give a licence to the Institution to violate the norms and the conditions imposed and make it a shop only. The University has all the rights to de-affiliate such kind of Institutions. However, right in the beginning such type of approach should neither be permissible nor it should be adopted. A perusal of the impugned order does not reflect reasonable cause for rejecting the request of the petitioners for grant of affiliation to the Law College to be set up at Ballabgarh (Faridabad).
The plea, that the Academic Council has taken a decision not to grant affiliation to any private or Govt. Institutions, has not been very seriously accepted, as is evident from the impugned order itself. The last paragraph of the said order shows that the Council has not shut the doors completely. It has been observed that the proposed Institution can only start teaching from the next Academic session, for which there is adequate time to complete the required formalities. It has been resolved that the Trust may apply again for affiliation for the next academic session and that the Inspection Committee may visit again and given its specific and categoric recommendation. It is strange that the recommendations made by the second Committee which are self explanatory are not being read as recommendation. If the decision of Academic Council had been seriously adopted that no other private college/institution shall be affiliated henceforth, then such observation, as observed above, would not have been made by the Executive Council. It shall be apposite to note the concluding para which reads as under :-
"The Council also observed that the proposed institute can now only start teaching from the next academic session for which there is adequate time to complete the required formalities. The Council thus FURTHER RESOLVED that should the trust apply for affiliation for the next academic session, the Inspection Committee may visit again and give its specific and categorical recommendation.
In view of the above, the writ petition is allowed and that the impugned order dated February 16, 2001 (Copy Annexure P-22) passed by the Executive Council in supersession of the order dated August 7, 2000 (Copy Annexure P-21) projected to have been passed by the Vice Chancellor, is/are quashed. The Academic Council and the Executive Council are directed to consider the application of the petitioners in the light and in view of the report of the second Inspection Committee dated July 15, 2001 (Copy Annexure P-19) within a period of three weeks from the date of receipt of a certified copy of this judgment. The Academic Council/Executive Council shall be at liberty to seek any information/clarification from the petitioners within the aforesaid period. The decision so taken shall be communicated to the petitioners accordingly. However, it is made clear that the application of the petitioners shall be considered for the session 2001-2002.
Before I part with this judgment it is observed that institutions must run like Institutions. There are much wider expectations from the Institutions which have to pave the way for education for generations to come. We have always held in high esteems the Educational Institutions which are our history but this should not be allowed to decay by the self-destructive approach. It is age old fact that the first teacher of a child is the Mother and that the Institutions also have to act like mother for every one and that "the mother" can never ever fail so tar as needs of the children are concerned.
Sd/- J.S. Narang August 24, 2001.
On account of constraints of time frame against both the parties, it is directed that a certified copy of this judgment under the signatures of Special Secretary of this Court be given to-day to learned counsel for the parties for onward transmission to concerned quarters for compliance.
Petition allowed.