indira Shiksha Prasar Sansthan Vs. State of Rajasthan and anr. - Court Judgment

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constitution of india - article 226 and university of ajmer act, 1987--section 24--no ground lo refuse to entertain application for affiliation--denial to consider application for affiliation under direction of high court is clearly mala fide and unjust--held, petitioner is entitled to mandamus for considering application in accordance with law.;there is no ground on which the respondent no. 2 could refuse to entertain and consider the application of the petitioner on merits for grant of affiliation to the university of ajmer. the denial to consider the application, filed by the petitioner in pursuance of the directives of this court is clearly mala fide, arbitrary and unjust and the petitioner is entitled to a mandamus to respondent no. 2 from this court for considering the application on merits in accordance with law.;writ allowed - - 1 state of rajasthan as well as respondent no. 2 is not well founded. 17. about the directives of the state government, at best, it can be said that the requirement and the data furnished by the ministry of manpower can be taken into consideration by the university while considering the application for grant of affiliation in accordance with the criteria and the guidelines, laid down by the act itself but it cannot take into consideration any thing which has not been provided under the act or statute and which apparently comes in conflict with the guidelines laid down by the act or statutes or ordinances or regulations, made thereunder. in reply to the contempt petition as well as in reply to the writ petition, the. this clearly speaks of mala fide with which the application of the petitioner has been dealt with. , after the petitioner was forced to file a contempt petition, is clearly indicative of the fact that the respondent no. the denial to consider the application, filed by the petitioner in pursuance of the directives of this court is clearly mala fide, arbitrary and unjust and the petitioner is entitled to a mandamus to respondent no.rajesh balia, j.1. this is the third innings of the petitioner to come before this court for seeking a mandamus for considering his application for affiliation with the university of ajmer in proper perspective in accordance with law.2. the facts necessary for the present purposes may be stated briefly thus: before university of ajmer was established under the university of ajmer act, 1987, the. petitioner had moved an application to the university of rajasthan some where in the month of april, 1986 seeking affiliation of college known as indira college of library science. in the. first instance, university of rajasthan appointed a committee for undertaking inspection of the college and after perusing the recommendation of the said committee, the university of rajasthan granted affiliation for one unit i.e. for 40 seals for the session 1986-87 subject to terms and conditions, staled by it. one of the conditions was that extension of provisional al'liliation for the session 1987-88 must be. applied with required fees by the end of december, 1986 through the director, primary & secondary education, rajasthan, bikaner. the state government also conveyed its no objection to the grant of affiliation by the university of rajasthan. petitioner sansthan made an application for extension of the affiliation for the session 1987-88 vide application dated 29th december, 1986. before that application could be. decided, university of ajmer ordinance was promulgated on 23rd july, 1987 which came into force with effect from 1st august, 1987. in the wake of establishment of university of ajmer, the university of rajasthan issued a notification stating that all colleges, institutions and institutes which have ceased to be affiliated by the university of rajasthan and are not affiliated to any other university of the state are hereby affiliated with university of ajmer w.e.f. 1st august, 1987. petitioner was informed that provisional affiliation granted to it for the session 1986-87 had automatically ceased on the expiry of the session 1986-87. it was also stated that the petitioner did not follow the required procedure nor did it fulfil the requirements, laid down by the. university of rajasthan or university of ajmer and that the petitioner had not obtained no objection from the state. govt. a stand was also taken by the university of rajasthan that the v.c. of the university of rajasthan was authorised to grant al'liliation for the session 1987-88 for colleges from which applications are received through proper channel provided the same are received on or before 25th july, 1987. however, the case of the petitioner was not referred to the vice chancellor because according to them, the application of the petitioner was not received until 1st august, 1987. in these circumstances, a writ petition was filed by the petitioner for seeking relief that it be declared that the college, run by the petitioner stands affiliated by the university of ajmer and is entitled to run the certificate course. two writ petitions bearing nos. 807/89 and 2992/88 filed before this court, were allowed in part by a common order on 21st september, 1989, with the following directions:i direct that the petitioner institution shall make an application within 15 days from today according to the provisions of chapter vi of the university of ajmer act, 1987 and the respondent university of ajmer and the state of rajasthan should dispose of the application of the petitioner regarding grant of affiliation within a period of two months from the date of the application for the academic session 1989-90.3. pursuant to that judgment, petitioner moved an application dated 28th september, 1989, that is to say, within a week of the pronouncement of the judgment, for considering its case for affiliation for the academic session 1988-89 for certificate course in library science. vide letter dated 11th november, 1989, petitioner was informed to get n.o.c. from the state government. it was stated that on receiving all the documents, formality for affiliation will be started by the university of ajmer. this letter dated 11th november, 1989 issued by the respondent university is ex. r/2 attached with the reply, submitted by the university. thereafter the petitioner vide letter dated 21st january, 1990 submitted that it has already moved the state govt. for issuing 'no objection certificate'. it was further submitted that the college was already affiliated to the university of rajasthan before promulgation of the university of ajmer act and such college stood automatically affiliated to the university of ajmer. the petitioner invited attention to its earlier application dt. 20th april, 1989. this was also not responded to and the petitioner was forced to file a contempt petition before this court bearing no. 33/1990. in reply to contempt petition, a stand was taken by the respondent university that the petitioner's application dt. 2nd january, 1990 reached university on 5th january, 1990 and the application did not reach university within fifteen days of the judgment referred to above and, therefore, the university was not bound to consider such application and it was further stated that the respondent university did not consider the petitioner's application by pointing out two major defects that it was not accompanied by the certificate of the slate government and only a part of the fees has been deposited. petitioner sent part of the fees but did not receive no objection certificate from the state government. the state govt. in its reply submitted that the application of the petitioner for grant of no objection was rejected by the govt. and in support thereof letter dt. 24th april, 1990 was produced alongwith the reply to the contempt petition. prior to that, no communication for refusal to grant affiliation was made.4. it is in these circumstances that the petitioner has filed this petition challenging the inaction of the respondents to consider the petitioner's application and challenging the validity of the order, issued by the state govt. refusing to grant no objection certificate.5. separate replies have been filed by respondent no. 1 state of rajasthan as well as respondent no. 2 university of ajmer.6. it has been contended on behalf of state of rajasthan that there was a clear directive, issued by the govt. of rajasthan vide letter dt. 8th february, 1980 to the registrars of the universities of rajasthan, jodhpur and udaipur that the state govt. has to keep a watch over the total number of seats in the professional colleges according to the man power requirements. this is done in close cooperation with the universities. in this context, the universities will have to get no objection letters from the govt. before they affiliate new professional colleges or extend their affiliation or increase seats,therein. a directive was issued that universities must insist for obtaining no objection from the. government before they are granted affiliation or extension in their affiliation and this direction was insisted to be adhered to. it was under this authority, according to learned counsel for respondent no. 1, that the state govt. refused to issue no objection certificate in favour of grant of affiliation to the college, run by the petitioner sansthan, on a report which it had received form prof. s.n. kaushik which has been produced on record as annex. r/4.7. on the other hand, it has been contended on behalf of the university of ajmer that there are instructions from the government that the affiliation should not be granted without no objection certificate and that since the state government has refused to grant n.o.c. to the petitioner, therefore; respondent no. 2 cannot grant affiliation to the petitioner. it was also stated that according to law, the matter of affiliation of petitioner would have been considered by the respondent no. 2 only if n.o.c. would have been granted by the government. it may also be noticed that in return to the writ petition, the respondent university denied receipt of application dt. 28th september, 1989 which was alleged to have been made within fifteen days of the directives, issued by this court vide its order dated 21st september, 1989 and issuance, of letter by university dt. 11th november, 1990 in response to that application and on that basis, it was contended that the application having been made beyond the period, permitted by the court, it was not required to be considered by the university at all.8. mr. mridul in response to this defence, set up by the respondents, contended that in view of the clear provisions of the university of ajmer act, the university of ajmer cannot abdicate its authority to consider the application for grant of affiliation as per its discretion to the directives of the state govt. on any ground whatsoever. he places reliance on the provisions of the university of ajmer act contained in chapter vi concerning the affiliation, recognition and approval of the colleges, institutions and institutes seeking such affiliation, recognition and approval.9. i have heard learned counsel for the parties and perused the material, placed before me.10. it would be pertinent here to refer to the relevant provisions of the university of ajmer act, 1987 which deal with the affiliation, recognition and approval of the institutions. section 24 is reproduced hereinbelow:affiliation of colleges,--(1) a college within the university jurisdiction, on satisfying the conditions specified in this section, may be affiliated to the university.(2) a college applying for affiliation to the university shall send an application to the registrar within such time limits as may be specified by the ordinances of the university with a view to satisfying the university on the following matters, namely:(a) that it will supply a need in the locality, having regard to the type of education intended to be provided by the college, the existing provision for the same type of education made by other colleges in the neighbourhood and the suitability of the locality where the college is to be established;(b) that it is to be under the management of a regularly constituted governing body or it is to be maintained by the state government;(c) that the strength and qualifications of the teaching staff and the conditions governing their tenure of office are. such as to make due provisions for the courses of instruction, teaching or training to be undertaken by the college;(d) that the buildings in which the college is to be located are suitable and that provision will be made in conformity with the ordinances of the university for the residence in the college or in lodgings, approved by the college, for students not residing with their parents or guardians and for the supervision and welfare of students;(e) that due provision is made for a library;(f) that where affiliation is sought in any branch of experimental 'science, arrangements are made in conformity with the statutes, ordinances and regulations for imparting instruction in the branch of science in a properly equipped laboratory or museum;(g) that due provision will, as far as circumstances may permit, be made for the residence of the principal and members of the teaching staff in or near the college or the place provided for the residence of students;(h) that the financial resources of the college are such as to make due provision for its continued maintenance and efficient working; and(i) that rules fixing the fees to be paid by the students shall be such as are prescribed in the ordinances of the university.(3) the application for affiliation shall contain an assurance that after the college is affiliated, any change in management or teaching staff and any other change resulting in the requirements mentioned in sub-section (2) not being fulfilled, shall be reported forthwith to the university.(4) on receipt of the application for affiliation under sub-section (2), the application shall be placed before the authority specially appointed for the purpose,(5) the board shall obtain the recommendation of the academic council on the report of the authority and shall take a final decision.(6) where a college desires to add to the courses of instruction in respect of which it is not affiliated, the procedure prescribed by sub-sections (2) to (5) shall be followed.(7) an application under sub-section (2) may be withdrawn at any lime before an order is finally made under sub-section (5).11. it may also be noticed that chapter vi also provides for withdrawal of affiliation, recognition of certain institutions, withdrawal of the recognition, approval of such institutions, that is to say, the act itself provides the complete code under which affiliation, recognition and approval of a given college, institution or institute is to be governed. it has also stated the matters that may be prescribed for the purposes of affiliation by the statutes, ordinances or regulations of the university as the case may be. a close scrutiny of the provisions of section 24 leaves no room of doubt that stale govt. nowhere comes in the picture for considering application for grant of affiliation to a college. under section 24(2) of the aforesaid act of 1987, a college desirous to seek affiliation to the university is required to send an application to the registrar within such time limit as may be specified by the ordinance of a university with a view to satisfying the university on the above said matters. sub-clauses (a) to (i) of sub-section (2) of section 24 of the aforesaid act of 1987 provides for various matters which are required to be considered for the purposes of dealing with the application for affiliation by the university. the suitability of the buildings in which the college is to be located has to be adjudged in conformity with the ordinances of the university concerned and that provisions will have to be made for the residence in the college or in lodging approved by the college for students. likewise where affiliation is sought in any branch of experimental science, the arrangements are made in conformity with the statutes, ordinances and regulations for imparting instructions in such branch of science, and that the college is properly equipped with laboratory or museum, required for such branch of experimental science. likewise, the rules fixing the fees to be paid by the students, are also to be prescribed in accordance with the ordinance of the university. under sub-section (4) of section 24, the application is to be placed before the authority, specially appointed for the purpose by the registrar. on the report of that 'specially appointed authority', the. recommendations of the academic council are to be sought by the board under sub-section (5) of section 24 and it is the board who is authorised to take final decision on the application to grant or not to grant affiliation to the applicant. this is the. scheme for dealing with the application for grant of affiliation under the university of ajmer act. the statutes which are. appended to the schedule annexed to the act, meant for affiliation of a college, also nowhere envisage any intervention of the stale govt. at any stage, while considering the matter of grant of affiliation.12. learned addl. g.a. appearing for the. slate of rajasthan when confronted with these provisions, candidly stated that under the provisions of the university of ajmer act, the state govt. had no authority to issue directives annex. r/1 to the university of ajmer so as to withhold the consideration of application made by any desirous applicant for grant of affiliation.13. however, mr. m.m. vyas, appearing for the university of ajmer insisted that the university is bound by the directives, issued by the state. govt. because the statute 37 of the rajasthan university as adopted by the. board of university of ajmer so provides and, therefore, unless the. statute 37 is struck down as ultra vires, petitioner is entitled to no relief.14. i have perused the statute 37, text of which has been produced alongwith the replies, submitted by the university which is a copy of the statute 37 of the university of rajasthan. relevant provision of statute 37 on which reliance is placed is reproduced below:(1) a college applying for affiliation whether for the first time or for extension in the. period of temporary/provisional affiliation or in additional subjects or for additional courses of study or for permanent affiliation, shall make a written application through proper channel to the registrar accompanied with the necessary fee prescribed under the ordinances not later than 31st december preceding the academic year from which recognition sought is to take effect. however, applications may also be entertained thereafter but not later than 30th april provided that special valid reasons to the satisfaction of the university authorities are given and the. application is accompanied with a late fee of rs. 500/-. an application for extension of provisional affiliation or for permanent affiliation may be accepted as a special case at the discretion of the university even after 30th april but not later than the date, of the commencement of the academic, session provided it is accompanied with a late fee of rs. 1000/-.15. mr. m.m. vyas, learned counsel appearing for the respondent no. 2, relied on clauses 1 and 2 of the notification dt. 7th september, 1987 for making use of statute 37 of university of rajasthan which reads as under:the university of ajmer and its affiliated colleges will be governed by the provisions of the aforesaid ordinance which contains statutes also. the statutes as contained in the ordinance have been made for management of all affiliated colleges (including govt. colleges) and constitution of selection committees for appointment of principals and teachers in non-government colleges. it is, therefore, advised that the affiliated colleges should carefully look in the provision of the aforesaid ordinance which has been published in rajasthan rajpatra dated 23rd july, 1987, a copy of which may be obtained from the govt. press.2. in regard to matters not covered by the aforesaid ordinance and the statutes made thereunder the statutes, ordinances and regulations of the university of rajasthan as existing on 31st july, 1987 shall apply.16. i am afraid this contention of respondent no. 2 is not well founded. there is no indication in the notification, letter ex. rule 2/5 or the copy of the statute 37 of the university of rajasthan, which is said to have been adopted by the university of ajmer, that university has abdicated its functions under the statute to consider the application for grant of affiliation by the concerned college to the discretion of the state govt. in any manner. statute 37 simply provides that application for affiliation shall be made through proper channel to the registrar. it nowhere states that the consideration of application will be subject to obtaining no objection from the state government, nor does the statute 37 provide that the proper channel of sending an application to the registrar shall be through the state government. obviously, in the context in which the proper channel for making an application to the registrar has been mentioned can only refer to the concerned department of the university, working under the registrar dealing with the affiliation matter. there cannot be any presumption that by adopting the statute 37 of the university of rajasthan, the board of ajmer university was deciding to surrender its authority to consider the application for grant of affiliation in terms of chapter vi to the state govt. in any manner and, therefore, annex. r/1 cannot be read in the manner as has been suggested by the learned counsel for respondent no. 2. it may be noticed that university of ajmer has established university of ajmer as a statutory and autonomous body and any inroad into its authority cannot be lightly presumed in any sphere by any authority nor it can be presumed that the university has abdicated its essential functions under the act which are to be dealt with by the university in the manner provided by the act, in favour of the state govt.17. about the directives of the state government, at best, it can be said that the requirement and the data furnished by the ministry of manpower can be taken into consideration by the university while considering the application for grant of affiliation in accordance with the criteria and the guidelines, laid down by the act itself but it cannot take into consideration any thing which has not been provided under the act or statute and which apparently comes in conflict with the guidelines laid down by the act or statutes or ordinances or regulations, made thereunder.18. be that as it may, in view of the scheme of the act as discussed above, it is apparent that the annex. r/1 filed by the respondent state cannot come in the way of university of ajmer in considering the application of. the petitioner on merits in accordance with law by taking into consideration the relevant factors as prescribed under section 24 of the aforesaid act which it is under a legal obligation to do.19. the contention of the respondent no. 2 that the application was not received in time, is not bona fide. in reply to the contempt petition as well as in reply to the writ petition, the. receipt of application dated 28th september, 1989 and their response to it has been denied on oath and learned counsel for the respondent no. 2 has even gone to the extent of stating that evidence in support thereof and issuance of letter dt. 11th november, 1989, referred to in para 3b of the writ petition, ought to have been produced by the petitioner. suffice it to say that document annex. r/2 produced by the respondent no. 2 itself belies the denial, made by the respondents about the receipt of application within time and denial of their response to it is contrary to the record which was available with them. this clearly speaks of mala fide with which the application of the petitioner has been dealt with. petitioner's application apparently could not have, been denied consideration on the ground that it was not made within time, permitted by the court when it is evidenced by the respondents' own document that such application was made within time, permitted by the court.20. it may also not be out of place to mention here that at the initial stage, the state govt. has found that the petitioner fulfils all the requirements for grant of affiliation and it has issued n.o.c. for the session 1986-87. after the direction of this court was issued for considering the application of the petitioner de novo, the refusal to grant 'no objection' for further affiliation by the state govt., after the petitioner was forced to file a contempt petition, is clearly indicative of the fact that the respondent no. 1 in refusing to grant n.o.c. has not acted with an open mind but has merely acted in self defence to defend the contempt petition.21. in view of the aforesaid discussion, i am of the firm view that there is no ground on which the respondent no. 2 could refuse to entertain and consider the application of the petitioner on merits for grant of affiliation to the university of ajmer. the denial to consider the application, filed by the petitioner in pursuance of the directives of this court is clearly mala fide, arbitrary and unjust and the petitioner is entitled to a mandamus to respondent no. 2 from this court for considering the application on merits in accordance with law.22. accordingly, the writ petition is allowed and the respondent no. 2 is directed to consider the application of the petitioner for grant of affiliation to its college for certificate course (library science) on merits in accordance with the provisions, specified in section 24 of the university of ajmer act by taking into consideration the relevant factors, prescribed into the act itself and to consider the petitioner's case uninfluenced by the directives, issued by the state govt. under annex. r/1 and by ignoring the refusal of no objection by the state government. petitioner will be entitled to the cost which i quantify at r2000/-.