Anoop V. Mohta, J.
1. Rule, returnable forthwith. Heard finally by consent of parties.
2. As in all these matters the basic issues are common and so also the Respondents, we are disposing of all these Petitions by this common judgment.
3. In Writ Petition No.6002/2015, the Petitioners have applied for New Law College at Palghar within time from the academic year 2015-16. The University has recommended their case. The State Government, however, has not taken decision on individual Application filed by the Petitioners. In Writ Petition No.4831/2015, the Petitioners have applied for starting additional new Degree Courses in the Petitioner's existing college at Palghar for the academic year 2015-16 and accordingly applied within time. The University has recommended the Petitioner's case. The Respondent/State, however, has not taken decision on individual Application filed by the Petitioner. In Writ Petition No. 6018 of 2015, the Petitioner has applied for starting various courses in M. S. College of Arts, Science, Commerce and BMS at Palghar within time for the academic year 2015-16. The University recommended the case. The State Government has not taken decision on individual Application filed by the Petitioners. The State Government however, has not granted the Applications of the Petitioners by issuing the impugned Government Resolution dated 29.04.2015; therefore, these Petitions are filed in June 2015.
4. All these Petitioners who are a religious minority community trusts/institutions as contemplated under Article 30 (1) of the Constitution of India, made Applications pursuant to an Advertisement issued by Respondent No.2/University to establish/start new college/additional new degree courses, having sufficient/requisite infrastructure facilities and staff for the current academic year based upon the Perspective Plan â“ 2015-16 (the Plan) of non-agricultural Universities issued by Respondent No.2-University. Respondent No.1-State of Maharashtra (the State), instead of rejecting and/or granting permission to the Petitioners, in time, though the University has recommended the respective cases of Petitioners without communicating any timely decision, issued the impugned Government Resolution dated 29 April 2015. By this Resolution, the State has decided not to grant approvals to proposals for starting new colleges, courses etc and directed the University to prepare a fresh perspective plan, though the perspective plan for academic year 2015-16 is in existence. On 20 July 2015 (Exhibit I), the State issued another connected resolution to constitute the related committee even after the cut off date as per the statute. This in effect amounts to rejection of permission sought by their respective applications made in October 2014.
5. Respondent No.2/University has also filed its affidavit dated 10 July 2015. The State has filed its affidavit dated 15 July 2015 (Writ Petition No.6002/2015). The State has filed additional affidavit on 24 July 2015. The relevant averments in the affidavit of the State, made in support of the stated policy decision/resolution in question, are reproduced below:
â3 The reasons for taking the said policy decision is as under:
In the academic year 2012-13, out of total intake capacity of the students doing Graduate and Postgraduate Courses in Higher Education, around 27% seats were lying vacant. In the academic year 2013-14, out of total intake capacity of the students, around 28% seats were lying vacant. And in the academic year 2014-15, out of total intake capacity of the students, around 26% seats were lying vacant.
5. I respectfully say that under Section 82 (5) of the Maharashtra Universities Act, 1994, the State Government has absolute discretion to grant or reject permission to open a new College or institution, taking into account (i) the State Government's budgetary resources (ii) the suitability of the Managements seeking permission to open new Institutions and (iii) the State level priorities with regard to location of the Institutions of higher learning. Thus, as per the said Section, it is not obligatory upon the State Government to grant permission to the Managements to open a new College or Institution, though the applications are recommended by the Non-agricultural Universities.
6. I say that recommendations made and perspective plan submitted by the non-agricultural Universities to the State Government will be given due consideration for the next academic year 2016-17.â?
The Petitioners, through their rejoinders have reiterated their claim for this academic year 2015-2016.
6. The University conceded to the position that most of the Petitioners have filed/applied to start new colleges/additional courses from academic year 2015-2016 along with the prescribed fee in time. Those applications were placed before the Management Council (The Council) of the University some time in April 2015 as per the provisions of the Maharashtra Universities Act, 1994 (The Act) and Government Resolutions dated 30 October 2010 and 2 September 2013. The Council by respective Resolution dated 28 April 2015 accepted the respective applications and forwarded the same to the State by letter dated 30 April 2015. The University has also pointed out that the State by letter dated 16 June 2015 directed it to refund the fees received from the concerned colleges which applied for affiliation. The University, therefore, in view of Government Resolution dated 29 April 2015 and communication dated 16 June 2015 has stopped processing these applications further. Similar affidavits are filed by the Universities in all the matters. The learned counsel appearing for the University has also placed on record the essential and requisite teaching days, workload for University/colleges which are applicable to the new college and/or new courses in the respective academic year.
7. The relevant Sections of the Act are Sections 82 and 83 , which are extracted hereunder:
â82 Procedure for permission.
[(1) The university shall prepare a perspective Plan, and get the same approved by the State Council for Higher Education for educational development for the location of colleges and institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and underdeveloped areas within the jurisdiction of the university. Such plan shall be prepared by the Board of College and University Development, and shall be placed before the Academic Council and the Senate through the Management Council and shall, if necessary, be updated every year.]
(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan, shall be considered by the university.
(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the Registrar of the university before the last day of October of the year preceding the year from which the permission is sought.
(4) All such applications received within the aforesaid prescribed time limit, shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council (on or before the first day of May of the year), with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council.â?
(5) Out of the applications recommended by the university, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning:
Provided, however, that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning:
[Provided further that, from the [academic year 2011-2012], such permission from the State Government shall be communicated to the university [on or before 15th June of the year], in which the new college is proposed to be started. Permissions received thereafter shall be given effect by the university only in the subsequent academic year.]
[(5A) Notwithstanding any thing contained in the second proviso to sub-section (5), for the academic year 2011-2012, such permission from the State Government shall be communicated to the University on or before 20th August, 2011 and shall be given effect by the University in the same academic year.]
[(5B) Notwithstanding any thing contained in this Act or any other law for the time being in force, on and from the date of commencement of the Maharashtra Universities (Second Amendment) Act, 2013, -
(a) no management shall establish or open a new college or an institution of higher learning in the State, except with the prior permission of the State Government;
(b) no management shall start a new course of study, subject, faculty or additional division, except with the prior permission of the State Government.
Explanation. â“ For the purposes of this sub-section, the expressions âestablish or open a new college or an institution of higher learningâ? and âstart a new course of study, subject, faculty or additional divisionâ?, shall include establishing or opening of any such college or an institution of higher learning, and starting of any such course of study, subject, faculty or additional division, on the basis of no grant-in-aid from the State Government.
(5C) Notwithstanding any thing contained in the second proviso to sub-section (5), for the academic year 2013-2014, such permission from the State Government shall be communicated to the university on or before the 15th July 2013 and shall be given effect by the university in the same academic year.]
(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institutions of higher learning.â?
83 Procedure for affiliation: -
(1) On receipt of the permission from the State Government under section 82 the Academic Council of the university shall consider grant of first time affiliation to the new college or institution by following the prescribed procedure given in sub-section (2) and after taking into account whether and the extent to which the stipulated conditions have been fulfilled by the college or institution. The decision of the Academic Council in this regard shall be final.
(5) The procedure referred to in sections 82, except the second proviso to sub-section (5) thereof, shall mutatis-mutandis, apply for the permission to open new courses and additional Faculties. The procedure for permission for starting new subjects and additional divisions in the existing colleges and institutions shall be such as may be prescribed by the State Government, from time to time.
â¦...........................â?
As per the above provisions, a perspective plan under Section 82(1) of the Act needs to be prepared after detailed study and required to be submitted to the State. The State has to submit the same to Higher Education Council for necessary approval. As per Section 82(3) of the Act, it is mandatory for the institutions to submit the applications to seek permission for starting new colleges, faculty/subjects or courses and/or additional Division, before 31 October to the respective Universities. The concerned University needs to take into consideration, the plan and other relevant factors. All those proposals as per the plans of the Universities are required to be scrutinised as per the provisions of the Act, including the procedure prescribed in Government Resolution dated 30 October 2010 and the criteria decided by the State from time to time, at their respective level. The University and the State, under the above statute/provisions, are required to grant approvals to the eligible proposals, if they fulfill the criteria. There is no issue that uniform network of colleges are required to be established throughout the State for providing higher education to the students from rural, hilly, tribal and nexalite affected area.
8. The learned counsel appearing for the Petitioners have relied upon the following judgments :
(1) Social Society, MORBA vs. Principal Secretary, Higher and Technical Education Department, Mumbai and (2011 (4) Mh. L. J. 316)
(2) In re The Kerala Education Bill, 1957, Special Ref No. 1 of 1958 (AIR 1958 SC 956)
9. The learned Government Pleader has produced a Note on Legal Issues and the following judgments in support of the submissions and are read and referred also:
(1) Ghaziabad Development Authority v. Union of (AIR 2000 SC 2003)
(2) Sindhi Education Society v. Govt (NCT of Delhi) (2010) 8 SCC 49)
(3) Bajaj Hindustan Limited v. Sir Shad Lal Enterprises Limited and anr. (2011) 1 SCC 640)
(4) Ugar Sugar Works Ltd v. Delhi (2001) 3 SCC 635)
(5) Transport and Dock Workers Union v. Mumbai Port Trust (2011) 2 SCC 575)
(6) Jagdish Mandal v. State of Orissa and ors. (2007) 14 SCC 517)
(7) His Holiness Kesavananda Bharati Vs. State of Kerala and Ors. (1973) 4 SCC 225)
10. Admittedly, inspite of the respective recommendations from the University within the prescribed date so fixed, the State has not taken any decision on the individual Applications, before 15 June 2015, as contemplated under the Act. No decision has been communicated to the Petitioners till this date. On the contrary, the State issued the resolutions dated 29 April 2015 and 20 July 2015 and did not take any decision on the individual proposals so submitted by the Petitioners and forwarded by the Universities for this academic year 2015-16.
Nothing is mentioned and/or even discussed about the existing plan so published, which is the basis for the institutions to apply for the respective permissions/approval for starting new colleges and/or additional courses in their respective areas/institutions. The State, instead of taking any decision, positive and/or negative, on the individual Applications, within the mandated period, confronted the Petitioners and the University with the Resolution and even directed to refund the fees/charges so recovered/received by the University in their proposals by referring to the stated source i.e. Section 82 of the Act. This action of State, in our view, by not taking decision on individual Applications by June 2015 is in breach of the provisions of above Sections of the Act. The action is also in breach of their own policy decision and the mandate of provisions of the Act, whereby it is obligatory on their part to issue guidelines and/or direct the Universities to prepare perspective plan for the coming academic year before October of preceding year. The University, as recorded, have already acted upon the earlier provisions/statutory provisions as contemplated under Section 82(1) of the Act and published and declared the plan. All the Petitioners and similarly situated persons, as noted above, have acted upon the same, before 31 October 2014. The University has also acted upon the time table so fixed and after verifying the proposals and as found fit and correct, as having complied with all the requisites as contemplated in Section 82(1)(2) and (5), forwarded their respective recommendations to the State within the prescribed period. The sudden detour is against the existing plan and practice apart from the law.
11 We have noted the affidavits filed by the State and the reason for the Resolution, as under:
â4 â¦....... As a result since last three years on one hand Managements were seeking permission to open new colleges/divisions/faculty/courses on the basis of recommendations made by the concerned University and on the other hand out of total intake capacity of colleges, almost 25 percent seats were lying vacant. Also some colleges had to close down due to short fall of students. I say that no balance the Demand â“ Supply ratio, the Higher and Technical Education to State Government in its wisdom has issued a resolution dated 29th April 2015, as per section 82(1) of the Maharashtra Universities Act, 1994 whereby all non agricultural Universities in State of Maharashtra have been directed to prepare and submit to the State Government their perspective plan with recommendations within a period of three months from the date of issuance of said G.R and on the basis of such recommendations and perspective plan received from the respective nonagricultural Universities, will be submitted to the State Higher Education Council headed by the Chief Minister, who will take final decision in the matter in accordance with law.â?
12. Government Resolution dated 29 April 2015, as stated to be the policy decision of the State, not to grant permission to open new colleges/division/faculty for the academic year 2015-16, is issued by overlooking the earlier policy decision and the directions issued to prepare perspective plan for academic year 2015-16 in the month of October 2014 and/or even prior to that. The said plan, as noted, is still in existence. Therefore, the prior action to prepare fresh perspective plan by the University for 2015-16 and/or future year 2016-17, in no way, in our view, should have been the reason to deny the proposals, recommended by the University for this year. The affidavit itself shows that the Government intended to have the fresh plan for academic year 2016-17. The whole action is contrary to the scheme of the Act as well as earlier Circular/Government Resolution so issued by the State of preparing perspective plan which have a statutory foundation for the Petitioners and/or such institutions to send their respective proposals in time. The State's sudden detour is against the existing plan, practice and own directions, apart from the law.
13. The submission that the State has âabsolute discretionâ? referring to Section 82, based upon the stated policy decision, in our view, is unacceptable. The whole action of State, in our view, is arbitrary, unreasonable and is in breach of their own statutory provisions and the Circulars, apart from the breach of the âprinciples of legitimate expectationâ? and âthe doctrine of promissory estoppelâ?. There was nothing wrong when they issued last year direction/guidelines to prepare the perspective plan as per the still existing statutory provisions. The change in policy, even if any, which is the domain of the State, in the facts and circumstances, ought to have been used and/or utilised prospectively for the year 2016-17 and ought not to have been for the current year 2015-16.
14. The basis of 26% vacant seats, if any, in all the subjects and locations, based upon the data so collected, cannot be utilized to take such abrupt decision/resolution and/or no individual decision. This reflects non-application of mind and arbitrary use of power in view of specific provisions of the Act and the policy. The stated approximate 50% vacant seats of Engineering or Medical courses or of other courses, cannot be clubbed in such fashion to deny or deprive the students/people to have new colleges/courses, in their area or institutions for other subjects, specifically when the proposals are well within the ambit of the existing plan and the law. These resolutions, the State could not utilize in cases of Engineering or Medical courses for this year, as the supreme Authority AICTE and MCI have already granted approval to start or approved their proposals. The State's submission therefore, only for these colleges/institutions of other subjects, is discriminatory and unsustainable.
15. There cannot be any issue that, the State for the betterment of the public in view of national and international demand of education of every sort, taking into consideration to establish Foreign Universities in India to enhance the education standards of Indian educational institutions has to take policy decisions. The State has directed the Committee to prepare the new perspective plan on the parameters of new educational development, new research, new facility and the related reforms in examination, pattern and also for an adequate educational provision in Tribal, Rural and Naxalite hit areas, including Privatization and deemed University Status. The basic purpose as per the provisions and as per the practice to have a perspective plan in advance so as to ensure that it meets the growth of the population. The Committee has to take note of criteria of geographical location in terms of taluka, faculties, proximity of similar colleges in the area and also to take note of innovative courses to be encouraged. It is always on the basis of data so quoted including the recommendation of the then existing committees and as per Section 82 of the Act. The perspective plan must have been placed before the Managing Council in the month of September 2014 or at least prior to October 2014. The Academic Council, having once resolved and accepted the plan for the year 2015-16 and submitted to the Council for Higher Education, the State and the Hon'ble Chancellor as per Section 36 (2) of the Act, we see no reason to overlook the same and/or not to follow the same for the year 2015-16, merely because the State has decided to have new perspective plan for the year 2016-17. The State ought to have taken decision within the time so prescribed based upon 2015-16 plan, in question. The non-compliance of statutory compliance by disregarding the perspective plan, which was prepared by following due procedure under the Act and specifically when agreed and accepted by the State and the Council, the submission based upon the Ghaziabad Development Authority (Supra) that the invitation by the State would not attract the principle of Contractual Obligation and therefore, individuals cannot claim as a matter of right to accept their offer/proposal, at the instance of State, in view of above background, is unacceptable. The Judgment so referred and relied upon, was in a matter of tender and allotment of plots. The facts and circumstances are totally distinct and distinguishable.
16. The practice to issue letter of intent, even if any, for above reasons that itself may or may not be the reason and/or entitlement to claim the rights, but as per the provisions of the Act and the Resolution so referred, in our view, the State Government is bound to take decision in accordance with law, based upon the perspective plan as already declared prior to October 2014.
17. The absolute discretion, therefore, even if any, cannot be read and used by the State not to take decision on individual applications within the statutory period so prescribed, having once invited the applications in the month of October 2014. The deserving applicants, if even otherwise, eligible in view of the provisions so read and referred above, having all infrastructures and material to justify their case/claim and as they have incurred substantial expenses and are otherwise eligible, being minority institutions and/or not, the legitimate expectations is definitely that the State would act in accordance with law within the time so prescribed. There is no escape from it. There is no provisions pointed out and/or referred to show that the State has power and/or authority to take such decision within the time so prescribed in the background so referred above. The State Government, in our view, failed to take decision in time as per the scheme of the Act, now cannot be permitted to take shelter of stated abrupt policy decision. Such situation is never contemplated and/or provided under the Act and/or any Government Resolution. The doctrine of âabsolute discretionâ? cannot invoked for such purpose. The action of the Respondents is nothing but wrong interpretation and/or wrong understanding of provisions of law and the power. Therefore, we are inclined to interfere with such inaction which is contrary to the provisions of statute and their own earlier policy decision.
18. The submission is that the judicial review in such policy decision is very limited and restricted unless exceptional case is made out. Reference is made to Bajaj Hindustan Limited (Supra). In view of the above reasons, the abrupt policy/resolution so brought in, is arbitrary, unreasonable and discriminatory and violative of Article 14, 19(1) of the Constitution of India. The judgments so cited are of no assistance, as the same were revolving around the economic and fiscal regulatory measures and administrative decisions. We are not interfering with the policy decision so taken by the experts in the interest of public at large, however, are definitely interfering with the sudden detour of the State by overlooking their own earlier years' policy and the plan. There is nothing to show that the earlier decision so taken was contrary to any provisions of law and/or the then existing policy decision. The State is always free to have their own policy in the interest of public at large. Normally, there is no question to interfere with the same, however, as the case is made out and without disturbing the policy, we are only interfering to the extent of not taking timely decision as per the provisions of Act and the Resolution. The existing plan, is in the interest of public at large. Therefore, this interference. We are not inclined to accept the case of the absolute discretion to mean and read that the State is free not to take any decision as per the scheme of the Act though all have acted as per their earlier declared policy and plan, in time. The non-action and/or inaction, in our view, itself is a ground to invoke the jurisdiction under Article 226 of the Constitution of India.
19. The case of Ugar Sugar Works Ltd. (Supra) is also therefore, of no assistance to the State as the action, in our view, is unacceptable, arbitrary, unfair and results of misunderstanding of law, as well as, the power. We are not concerned even with the business interest of the Petitioners only, but we are definitely concerned with the public interest in the matter of establishment of new colleges and/or courses as per the plan of 2015-16 so prepared by the University based upon the guidelines so issued by the State itself, prior to October 2014. In view of demand of education and need to establish respective colleges and/or to add new courses including innovative courses as per the already published plan, the case of Transport and Dock Workers Union (Supra) is also of no assistance to the State. The submission that the power of judicial review, the Court should not interfere with the decision of the Government referring to His Holiness Kesavananda Bharati (Supra), is also unacceptable for the reasons so recorded above. In Jagdish Mandal (Supra), therefore, is also of no assistance as we are not even substituting the decision so taken, we are definitely interfering with the non-action and/or inaction on the part of the State Government of not taking the decision in the academic year or before the cut off date so fixed.
20. Once we are coming to a conclusion for the reasons so recorded above that the action of Respondents basically by the State is impermissible, we are inclined to modify the prayers as restricted, in the interest of public at large and by considering the existing practice and the plan of 2015-16. Therefore, the following order in respective Writ Petitions:
ORDER
a) It is hereby directed to Respondent Nos.1 and 2(I) In Writ Petition No. 6002 of 2015:
i) Respondent-State to forthwith consider the Petitioners application for starting a new Law College, (3 and 5 year courses) at Khanivali Wada Dist. Palghar as provided under Section 82(5) of the Maharashtra Universities Act, without taking into consideration Government Resolution dated 29.04.2015 (Exhibit âEâ?) and GR dated 20.07.2015 (Exhibit âIâ?) issued by Respondent No.1 in accordance with law.
(ii) Respondent-University to forthwith take appropriate action u/s 83 of the Maharashtra Universities Act, 1994, and consider granting necessary affiliation to the Petitioners new Law College (3 and 5 year courses) at Khanivali Wada Dist. Palghar, in accordance with law.
(II) In Writ Petition No. 4841 of 2015:
i) Respondent-State to forthwith consider the Petitioners application for additional new Degree Courses in (i) Bachelor of Commerce (B.Com.), (ii) Bachelor of Management Studies (B.M.S.), (iii) Bachelor of Arts (B.A.), and (iv) B. Com. (Accounting and Finance) at Palghar as provided under Section 82(5) of the Maharashtra Universities Act, without taking into consideration of Government Resolution dated 29.04.2015 and GR dated 20.07.2015 in accordance with law.
(ii) Respondent-University to forthwith take appropriate action u/s 83 of the Maharashtra Universities Act, 1994, and consider granting necessary affiliation to the Petitioners additional new Degree Courses in (i) Bachelor of Commerce (B.Com.), (ii) Bachelor of Management Studies (B.M.S.), (iii) Bachelor of Arts (B.A.), and (iv) B. Com. (Accounting and Finance) Palghar, in accordance with law.
(III) In Writ Petition No. 6018 of 2015:
i) Respondent-State to forthwith consider the Petitioners application for starting a new Arts, Science, Commerce and BMS College at Khanivali Wada Dist. Palghar as provided under Section 82(5) of the Maharashtra Universities Act, without taking into consideration of Government Resolution dated 29.04.2015 and GR dated 20.07.2015 in accordance with law.
(ii) Respondent-University to forthwith take appropriate action u/s 83 of the Maharashtra Universities Act, 1994, and consider granting necessary affiliation to the Petitioners new Arts, Science, Commerce and BMS College at Khanivali Wada Dist. Palghar, in accordance with law.
b) Rule in all the Petitions made absolute accordingly.
c) There shall be no order as to costs.