H. N. SHUKLA INSTITUTE Vs. ALL INDIA COUNCIL

JUDGEMENT

(1.) Present appeal under Clause 15 of the Letters Patent is submitted by the appellant- original petitioner in which, the challenge is made to the legality of the order dated 31.7.2019 passed by learned Single Judge in Special Civil Application No.10020 of 2019 to the extent of refusing the grant of interim relief in favour of the petitioner.

(2.) The premise on which the present Letters Patent Appeal is filed is that H.N. Shukla Institute of Pharmaceutical Education & Research, i.e. appellant- original petitioner, is imparting education in the field of pharmacy to the level of graduation leading to the educational qualification of Bachelor of Pharmacy (B. Pharm.). This self-finance institute was set up in the academic year 2005-06, run and administered by Saraswati Social and Education Trust, a Public Trust registered under the Bombay Public Trusts Act and the respondent authority, i.e. AICTE, processed the request of the appellant and granted approval with an annual intake of 60 seats in the course of B. Pharm. Such approval was issued by the respondent No.1 way back on 5.9.2005. It is the case of the appellant that the appellant Institute was accorded extension of approval from time to time till the academic year 2018-19 with the same intake of 60 students. For the purpose of last extension, approval for the academic year 2018-19, the appellant Institute was inspected on 24.10.2017 by the Expert Visitation Committee of respondent No.1 and during the said inspection, some deficiencies were noticed which led the Expert Visitation Committee to submit inspection report. In response to such, a notice was issued on 1.11.2017 in which the appellant represented on 9.11.2017 and submitted that as per the inspection report, all deficiencies have been complied with and since the requirement related to Barrier Free Environment, some breathing time was requested since the institute was existing since long. Furnishing the undertaking to fulfill the requirement of Barrier Free Environment, the appellant Institute was granted extension of approval vide order dated 29.11.2017 to its B. Pharm. course for the academic year 2018-19 with the same approved intake of 60 students. No-doubt, the appellant is also offering the course of Master in Pharmacy but the Institute for the moment is not admitting the students and as such, such M. Pharm. course is not functional. That since the said circumstance is not related to this controversy, no details have been mentioned. Then comes a further extension of approval of B. Pharm. course for the academic year 2019- 2020. A notice was issued on 3.12.2018 for compliance of the undertaking regarding upgradation of Barrier Free Environment and hearing was fixed on 10.12.2018 by the Scrutiny Committee. A representative of the appellant remained present and submitted its C/LPA/1542/2019 ORDER compliance for upgrading the campus of the appellant institute for providing Barrier Free Environment. Resultantly, the Scrutiny Committee, according to the appellant, recommended for grant of extension of the approval of B. Pharm. course for the next academic year 2019-2020 with an intake of 60 students. So much so, a surprise inspection was carried out of the institute by the inspection team and the Inspector of the team was satisfied about availability of necessary infrastructure, except the provision for a lift for disabled and elderly person. But, since the institute is not of such height and multi-storied, requirement of lift is not mandatory, otherwise everything is found to be in order upon physical inspection. The appellant institute has also placed a purchase order for commissioning the lift, despite the same is not of four storied building. However, to the surprise of the appellant, communications through email dated 18.1.2019 and 23.1.2019 were received by the appellant institute to remain present though compliance report has also been submitted and verified by the two successive inspecting teams. Subsequent to this also, when another circular came to be issued on the appellant institute on 21.2.2019, calling upon the appellant institute to once again remain present before the Standing Appellate Committee on 1.3.2019, the institute vide its communication dated 22.2.2019 informed that compliance verification procedure is already completed and recommendation for extension of approval was also made upon physical verification. Vide email communication dated 23.2.2019, the appellant institute was given to understand that probably the Inspector may not be satisfied with the physical verification but in any case, the appellant institute remained present before the Committee and pointed out the details that except the provision of a lift, which is not mandatory and required in the appellant's building, the other parameters are already fulfilled which have been verified by the delegates of the respondent No.1. But, surprisingly, on 25.4.2019, extension of approval no-doubt is granted for the academic year 2019-2020 but for an intake of 45 seats only as against the appellant's usual intake of 60 seats, which is throughout till the last academic year and as such, by a non-speaking order, straightway, the intake strength has been reduced to 45 students. This, according to the appellant, is only on account of the lift which is otherwise not the requirement and hence, the order of reducing the intake of the appellant institute is nothing but a clear example of arbitrariness and the order is also absolutely a non-speaking order, according to the appellant. Feeling aggrieved by and dissatisfied with the said punitive order and communications dated 25.4.2019 and 8.5.2019 to the extent of reduction of intake capacity, the appellant institute was initially constrained to file a petition, being Special Civil Application No.10020 of 2019. Upon hearing both learned advocates, learned Single Judge was pleased to admit the petition vide order dated 31.7.2019, however refused to grant interim relief since the same was found to be mandatory in nature and cannot be granted, more particularly in view of the decision in the case of Parshavanath Charitable Trust & Ors. Vs. All India Council for Technical Education & Ors., reported in (2013)3 SCC 385 and it is this rejection of the interim relief which has given rise to the present Letters Patent Appeal by the appellant.

(3.) Learned senior advocate Mr. D.C. Dave appearing on behalf of the appellant has vehemently contended that the appellant institute is running and imparting B. Pharm. course right from 2005 -06 with an intake capacity of 60 students and time and again, extension of approval has been accorded till the last academic year with an annual intake of 60 students in the course. On the basis of the same, the appellant institute has its same structure and premises. Therefore, suddenly, to reduce the intake capacity would tantamount to be an arbitrary act on the part of the respondent authority. It has further been contended that the original order on the face of it is a non-speaking order and the material particulars have not been taken into consideration and therefore, such an unreasoned order is to be treated as violative of the principle of natural justice. Learned senior counsel has further contended that with a view to consider the request of the appellant institute for extension of approval for the academic year 2019- 2020, a physical verification has been undertaken by the Committee and the officers appointed by the respondent No.1 itself and after verification, it has been recommended for grant of approval with intake of 60 students and such recommendation is also very much available on the file, still however the authority has, in an arbitrary manner, not considered the case. For substantiating his submission, learned senior advocate has referred to the report of the Scrutiny Committee with regard to the compliance of the deficiencies attached to the petition compilation on page 48 onwards and has drawn the attention to page 50 in specific, which refers to a recommendation for the year 2019- 2020 and the said report has been signed by the Expert (Academic) and Expert (Architect/ Civil Engineer) and this has been very much on the file. It has further been submitted by referring to page 51, in which also on visit to the appellant institute, an officer has pointed out the circumstance prevailing in the building which also consists of the certificate of Barrier Free Environment along with C.D. It has further been submitted that except the provision for a lift, all other parameters are not in question and so far as the lift is concerned, it has been pointed out that if a building is multi-storied building of more than four floors, then there is a mandatory requirement of lift, otherwise such requirement is merely a directory and here, the appellant institute consists of ground floor + two floors and not a multi-storied building. Therefore on the basis of want of the provision of the lift, the intake capacity cannot be reduced as a part of penal measure. On the contrary, it has been undertaken by the appellant institute that the provision is already made. So much so, in April 2019, a purchase order is also given and the lift requirement also, though it is directory, will be included within a short time. Hence, since as per the norms, the other parameters are already underwent and provided by the appellant, there is hardly any justification for the respondent No.1 to reduce the intake capacity and that too by a non-speaking order and against their own reports. This being the position, even learned Single Judge has also perused the same, heard both the sides and then was pleased to admit the petition and as such, according to learned senior counsel, there is hardly any justifiable material or stand available to the respondent to reduce the intake capacity. The institute is running right from 2005 - 2006 over a period of time till last year with an intake of 60 students, there is hardly any reason for the authority to curtail the strength of the students. On the contrary, the faculty and other infrastructure and amenities are already provided to meet with an intake capacity of 60 students and to reduce the same abruptly would lead to serious consequences upon the institute. Lastly, learned counsel has submitted that the purchase order has already been submitted and even if the lift provision is directory, the present institute intends implant the lift in the building, which would satisfy the conscious of the authority about the fulfillment of requirement. Resultantly, learned senior counsel has submitted that despite all these things having been visible from the record, learned Single Judge ought to have considered the grant of interim relief. There is no blanket proposition that in no case, interim relief in a mandatory form can be granted. Here is a case in which, apparently the action of the respondent authority is found to be absolutely de hors the material and arbitrary. Learned Single Judge ought to have granted the interim relief. However, be that as it may, learned senior counsel submitted that the provision for the lift will be undertaken in a short time, hence requested to set aside the impugned orders.