1. In this petition under Article 226 of Constitution of India the petitioner has prayed for below mentioned relief:
"9(B)(1). The Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or in the nature of certiorari or any other writ, order or direction to quash and set aside the order dated 15.02.2012 passed by the respondent No.2 as well as order dated 28.09.2011 passed by the respondent No.2.
(B)(2). The Hon'ble Court be pleased to direct the respondent University to show the name of the petitioner Trust/college in list of the affiliated institute/college with the respondent University for the year 2012-2013.
(C) Pending admission, hearing and final disposal of the present petition, (C)(1) Your Lordships may be pleased to suspend the further implementation, further operation, further enforcement and further execution of the orders dtd. 15.02.2012 and 28.09.2011.
(C)(2) The Hon'ble Court may be pleased to direct the University to show the name of the petitioner trust/college in list of the affiliated colleges with the respondent University for the year 2012-2013.
(C)(3) The Hon'ble Court may be pleased to direct the respondent No.3 Saurashtra University to allot students to the Petitioner Trust/College for B.Ed. Course for current academic year 2012-2013."
2. The petitioner is a college imparting education for B.Ed. course. It is aggrieved by order dated 15.02.2012 passed by respondent No.2 whereby the Appellate Authority i.e. respondent No.2 has confirmed the order dated 28.09.2011 passed by respondent No.1. Under the said order date 28.9.2011 the respondent no.1 has withdrawn petitioner's recognition.
3. So far as relevant facts are concerned it emerges from the record that in 2006 the respondent No.1 granted recognition to the petitioner college vide order dated 25.08.2006. It further appears that a committee appointed by Government had prepared a list of colleges which, according to the Committee, deserved to be derecognized. In light of the said list accompanied by report of the said Committee respondent No.1 issued a show-cause notice dated 04.08.2008. The petitioner submitted its reply to the said notice. Thereafter, the respondent No.1 passed the above mentioned order dated 29.11.2008 withdrawing the recognition. The said order was challenged before respondent No.2 who confirmed the order dated 29.11.2008. The petitioner has claimed that until then it was running the institute in rented/leased premises however, considering the requirements prescribed by the respondent No.1 the petitioner purchased land and constructed the premises and thereafter the petitioner applied for shifting the college to new premises. The application was submitted on or around 12.02.2009. It is claimed that the said application was accompanied with the payment of fees in the sum of Rs.40,000/-. The petitioner also challenged the Appellate Authority's order in a writ petition being S.C.A. No.4576 of 2009. The petitioner has claimed that the Court conditionally allowed the said petition. The Court directed that all defects mentioned by the respondent No.1 should be removed and all norms prevailing on the date of recognition should be fulfilled.
4. It appears that after the common judgment and order dated 14.05.2010 passed by the Division Bench in S.C.A No.3205 of 2009 and connected matters the respondent No.1 issued show-cause notice dated 22.06.2011 and informed the petitioners that in compliance of the court's directions inspection would be carried out on 6th May 2011 so as to ensure compliance of the instructions to remove the defects intimated to the petitioner earlier and also mentioned in the said notice dated 22.06.2011.
5. As mentioned above, the petitioner had informed respondent No.1 in February 2009 about its new premises and had requested for permission for shifting into the said new premises.
6. The petitioner has, therefore, claimed that it believed that the inspection team will visit new premises. It is also claimed that since the permission as requested for was not granted the petitioner had to continue in the original / old premises for want of permission. The petitioner has claimed that the inspection team did not visit the new premises despite requests made by the petitioner. On the other hand, the University informed the petitioner vide letter dated 14.06.2011 that unless respondent No.1 gives clearance, students will not be allotted to the petitioner college.
7. The petitioner has also claimed that it had submitted reply to the notice dated 21.06.2011 and also submitted documents which included the documents related to land purchased by it and the new premises. It is claimed that despite its reply and submissions the respondent No.1 passed the order dated 28.09.211 withdrawing the recognition and when petitioner challenged the said order before the Appellate Authority, the appeal came to be rejected and the order dated 28.09.2011 got confirmed. Hence, present petition.
8. Heard Mr. Oza, learned Senior Counsel with Mr. Jasani, learned Advocate for the petitioner. Mr. Champaneri, learned Assistant Solicitor General for respondent Nos. 1 and 2. Mr. Thakkar and Mr. J.R.Nanavati, learned Advocates for the respondent University and learned A.G.P. for respondent No.4.
9. Mr.
Oza, learned Senior Counsel vehemently assailed the order dated 15.02.2012 passed by respondent No.2. He has submitted that the respondent No.2 failed to appreciate that as per the decision dated 14.05.2010 by the Division Bench in the group of petitions, the norms prevailing on the date of recognition have to be applied, however, the respondent Nos. 1 and 2 have applied the norms prevailing as on the date of order. He also claimed that though the application made in 2009 seeking permission to shift in new premises was pending before the authority and requests were made that the inspection team may visit the new premises, once again old premises have been inspected which has caused injustice to the petitioner. Mr. Oza also submitted that the impugned orders have been passed without considering the material on record and merely on the basis of report of the inspection committee as per the inspection carried out on 6th May 2011 (of the old premises) and that therefore the orders are not based on correct facts and relevant details.
10. Mr.
Thakkar and Mr. Nanavati for respondent University have submitted that unless the petitioner holds valid recognition the respondent University cannot treat the petitioner as affiliated college and any students also cannot be allotted to a college which is not recognized by respondent No.1 and affiliated with University.
11. I have considered the rival submissions and the material available on record.
12. Rule.
With the consent of the learned Advocates appearing for the contesting parties, rule is made returnable forthwith. The learned counsel appearing for respondent Nos. 1, 2 and 3 and learned A.G.P. for respondent No.4 have waived the service.
13. At the outset, it is appropriate to mention that the respondent No.1 and 2 have not filed any affidavit contesting the petition or disputing the details mentioned in the petition. The respondent University has filed reply affidavit, however i.e. with regard to the position related to the respondent University.
14. On 26th April 2012 after hearing the learned Senior Counsel for petitioner and considering the submissions that the process of admission was to commence within short time the Court directed office to issue notice and permitted the petitioner to serve a copy to learned Assistant Solicitor General who ordinarily appears for respondent No.1. Direct service of notice was also permitted. The hearing was scheduled for next day i.e. 27th April 2012. On 27.04.2012, below mentioned order was passed.
"1. Heard Mr. Oza, learned Senior Counsel with Mr.Jasani, learned counsel for the petitioner and Mr. Champaneri, learned Assistant Solicitor General for respondent No.1.
2. Mr.
Champaneri, learned Assistant Solicitor General has submitted that he has appeared on service of the petition, however, since office was directed to issue notice only yesterday, the respondent No.1 does not appear to have been served until now and that therefore he has still not received any instructions.
3. Mr.Oza, learned Senior Counsel has emphatically submitted that the process of granting admission is to commence from 1st May 2012. Since 28th April 2012 and 29th April 2012 are holidays, learned Assistant Solicitor General requested that the petition may be adjourned to 30th April 2012, by which time he may be able to receive instructions from the respondent No.1.
Hence, hearing of present petition is adjourned to 30th April 2012."
15. Thereafter, on 30th April 2012 the matter was listed for further hearing. After hearing the counsel appearing for petitioner, for respondent Nos. 1 and 2 below mentioned order prescribing certain interim arrangement was passed:
"1. In pursuance of the order dated 27/04/2012, today, learned Assistant Solicitor General Mr. P.S. Champaneri has submitted that his client i.e. respondent no.1 NCTE is still not served with the petition and he has not received any instruction from NCTE. He requested for some more time so that he can receive proper instruction from NCTE. Learned Senior Counsel Mr.Oza with learned advocate Mr. Jasani for the petitioner has submitted that admission process would commence from tomorrow and if allotment of students is finalized without considering the case of the petitioner, then petitioner will have to suffer loss of one year. Therefore, below mentioned order is passed:
1.1. The hearing of the petition is adjourned to 04/05/2012. In the meanwhile the respondent nos.1 and 3 shall file their reply.
1.2. The petitioner shall forward copy of this order to respondent no.1 through fax at its own cost.
1.3. Learned Assistant Solicitor General is also requested to inform about present order.
1.4. A copy of this order shall be directly and personally served by the petitioner to respondent no.3 university along with copy of undertaking dated 27/03/2012.
1.5. The respondent no.1, in the meantime will tentatively reflect the name of petitioner institution in the list of eligible colleges however, with a rider clarifying by way of separate remark/note that the name is reflected in the list on account of pending writ petition in the High Court and it is subject to the further order that may be passed by the Court.
1.6. Likewise respondent no.3 will, while making allotment of the students, also take into consideration the case of the petitioner college and tentatively allot students as per its normal practice and shall clarify that the allotment is subject to the further orders that may be passed in the petition.
1.7. Further orders shall be passed on 04/05/2012 after taking into account the reply that may be filed by respondent no.1 and respondent no.3 university. "
16. On the next date i.e. 4th May 2012 the hearing was adjourned to 8th May 2012 at the request made by learned Advocates. Again, the proceedings were adjourned to 10th May 2012 at the request of learned Advocates. The petition, thereafter, has been heard on 10th May 2012 and 11th May 2012.
17. It emerges from the submissions by the learned Senior Counsel for the petitioner and the learned Advocates appearing for the respondent Nos. 1 and 2 as well as the respondent University that (a) it is not in dispute that since February 2009 the petitioner has made an application informing respondent Nos. 1 and 2 about its new premises and seeking permission to shift to the said new premises,
(b) it is also not in dispute that the petitioner has paid requisite fees in the sum of Rs.40,000/- along with the application requesting permission for shifting to new premises, (c) it is also not in dispute that the said application is not decided/rejected by the competent authority and is still pending and (d) It is also not in dispute that when the notice dated 22.06.2011 was issued and when the inspection was conducted on 6th May 2011 the above referred application made in February 2009 was pending before the competent authority.
18. It however appears that the inspection team had visited, on 06.05.2011, the old premises.
19. It appears from the material on record that the orders dated 28.09.2011 and 15.02.2012 have been passed in light of and on the basis of the report of inspection committee i.e. on the basis of the inspection conducted on 6th May 2011 and that the said inspection was conducted at the old premises. Consequently, the impugned orders are based in light of the details which pertain to old premises. This happened despite pendency of petitioner's application made in February 2009.
20. Therefore, it seems that the premise on which the impugned orders are based is not proper and the authorities appear to have proceeded on irrelevant details which has led the respondent Nos. 1 and 2 to incorrect and unjustified inferences and conclusion, at least so far as the defects related to land, premises and land documents as well as the documents related to premises are concerned.
21. Besides this, the petitioner has vehemently asserted that so far as staff and appointment of Principal and such other alleged defects are concerned, it has cured all defects. However, since the reply by respondent Nos. 1 and 2 is not on record it is not possible to verify the said details.
22. Since it has prima facie emerged from the record that the inspection team visited the old premises and submitted report on basis of such visit and the impugned orders have proceeded on the basis of such report, it seems that the petitioner deserves a chance and opportunity to explain the correct and relevant facts to respondent No.2 and to bring to the notice of the said authority the applications submitted by it earlier and to also bring to the notice of the respondent No.2 the other material forwarded by it so as to demonstrate that other defects have been cured so that the respondent No.2 can consider such material and pass fresh order as may be considered appropriate. For the said purpose, it would be necessary to remand the matter to the respondent No.2.
23. For the foregoing reasons, particularly because the impugned orders are based on the report made pursuant to the inspection conducted on 06.05.2011 and considering the fact that old premises were again inspected and having regard to the fact that the documents related to land and building which have been taken in to account are of old premises, the impugned order dated 15.02.2012 deserves to be set aside and is accordingly hereby set aside and the matter is remitted to the respondent No.2.
24. It is necessary to clarify that this order and aforesaid observations are made in view of petitioner's repeated assertions that the inspection team visited old premises and its report is based on such visit at old premises and the respondent No.1 has not denied the petitioner's assertions.
25. Before proceeding further, it is necessary to mention that the petitioner does not hold valid recognition. Furthermore, the petitioner also does not hold valid affiliation with the respondent University. The University has asserted that the petitioner has neither made application seeking affiliation nor paid requisite fees for the said purpose. Moreover, there is no clarity and confirmation about the appointment of qualified staff and Principal. In background of such facts and circumstances any other or further order, except order remitting the matter to respondent No.2 cannot be made at this stage. However, considering the urgency it appears appropriate to prescribe a schedule which the petitioner, the respondent No.2 and the respondent University should follow.
26. The respondent No.2 shall, after service of certified copy of present order, fix date for hearing the petitioner. The respondent No.1 will endeavour to schedule the hearing within four days from service of present order. After hearing the petitioner and considering the relevant record the respondent No.2 shall pass appropriate reasoned order within three days from date of hearing. If the order is in favour of the petitioner then it shall be conveyed to the respondent University. On the strength of such order petitioner may make necessary request, with requisite fees, to the respondent University for affiliation and allotment of students. If the order passed by respondent No.2 is in favour of the petitioner then the respondent University shall take necessary steps of granting affiliation and allotment of students to petitioner within one week from receipt / service of order by respondent No.2. It is clarified that respondent No.2 shall pass appropriate order in accordance with law and on the basis of material and record and without being influenced by present order or its own earlier orders or the orders passed by respondent No.1.
27. With the aforesaid clarification and direction the petition is partly allowed. Rule is made absolute to the aforesaid extent. Petition stands accordingly disposed of.
(K.M.THAKER, J.) jani Top