The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3898 of 2024 Institute for Education, a unit of Educational and Social Development Trust, Sakchi, Jamshedpur having its functional and registered address at village- Bijay, P.O. Sini/Narayanpur, District-Seraikella-Kharsawan, Jharkhand-833220 through its authorized signatory Mr. Rathindra Nath Mahanty, aged about 72 years son of late Niranjan Mahanty, resident of Road No. 04, Hariom Nagar, Adityapur, Seraikella Kharsawan PIN 831013, Jharkhand …… Petitioner Versus 1.The State of Jharkhand through its Secretary, Higher Technical Education & Skill Development having its office at Nepal House, P.O. and P.S. Doranda, District-Ranchi 2. Director, Higher, Technical Education and Skill Development, Directorate of Higher Education, HRD Dept. Ranchi 3. Kolhan University through its Registrar, Office at Chaibasa, P.O. and P.S. Chaibasa, District-West Singhbhum 4. All India Council for Technical Education (AICTE), through its Member Secretary, Advisor-II (Approval), under the Ministry of HRD Govt. of India having its office at 7th Floor, Chandralok Bldg, P.O. and P.S. Janpath, New Delhi 110001. …… Respondents --------- CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Petitioner : Mr. Shresth Gautam, Advocate Mr. Rahul Anand, Advocate Mr. Yogendra Yadav, Advocate For the State : Mr. Gaurav Abhishek, Advocate For the AICTE : Mr. Ratnesh Kumar Advocate For the Kolhan University : Dr. Ashok Kumar Singh, Advocate 03/Dated: 23/07/2024 1. Dr. Ashok Kumar Singh, learned counsel for the University submits that counter-affidavit is ready however the same was not filed as the matter was on Board. He submits that copy of the counter-affidavit has been served upon the learned counsel for the petitioner. 2. The said counter affidavit is taken on record. 3. Heard Mr. Shresth Gautam, learned counsel for the petitioner, Mr. Gaurav Abhishek, learned counsel for the State, Mr. Ratensh Kumar, learned counsel for the AICTE and Dr. Ashok Kumar Singh, learned counsel for the Kolhan University. 4.. Prayer in this writ petition is made for quashing the order dated 16.05.2024 contained in Annexure-11 passed by the respondent- 1 University whereby the application of the petitioner-Institute for grant of affiliation for offering BBA and BCA programs for the academic session 2024-2027 has been rejected stating that the documental evidence pertaining to initiation of the process for obtaining the mandatory approval from All India Council for Technical Education (AICTE), New Delhi is not available. Further prayer has been made for issuance of a writ of mandamus to forthwith consider and grant the petitioner’s affiliation application for offering BBA and BCA programs for the academic session 2024-2027.
Legal Reasoning
5. Mr. Shresth Gautam, learned counsel for the petitioner submits that petitioner is an entity having its registered address at Village Bijoy, P.O. & P.S: Sini/ Narayanpur, District: Saraikella Kharswan within the State of Jharkhand. He further submits that the petitioner/institute is running a B.Ed College and since its establishment in 2012 under the Education & Social Development Trust, it has been dedicated to providing high quality education and fostering holistic development and is duly affiliated with Respondent-University. He further submits that the petitioner college is operating in the remote district of Seraikella-Kharswan, Jharkhand and providing better opportunity of education to the students of that area. He then submits that the petitioner college wanted to start courses of BCA and BBA for the college and has invested in creating facilities and resources specifically to support the introduction of BCA and BBA courses and accordingly, the college has developed infrastructure as well as the teaching staff. He submits that for courses and affiliation one has to move in the light of 2009 gazette notification of the University Grants Commission. He further submits pursuant to notification dated 5th April, 2 2018 the petitioner has applied to the University along with all the documents on 08.09.2023. he submits that the said application was under letter number AFF/BBA/23 for BBA and AFF/BCA/23 for BCA, respectively, for the 2024-27 session. He submits that the said application has been brought on record by way of Annexure-3. He further submits that the petitioner prepared the Demand draft and deposited the same on 08.09.2023 which was valid for 3 months period from the date of issue to the tune of Rs. 60,000 each i.e. totaling to Rs. 1,20,000. He draws the attention of the Court to Rule 18 of the statute which prescribes the time frame of disposal of the application and submits that the petitioner has already applied within time on 08.09.2023. He further submits that in the light of University Grants Commission letter dated 23rd January 2024 which was issued by way of Public Notice explicitly instructing all institutions to obtain Approval/Recommendation from AICTE starting from the 2024-25 academic year and it was further clarified that will be applied to any previous orders as such for the first time approval or recommendation from AICTE was made necessary. He further submits that prior to 23.1.2024 the approval from AICTE was not mandatory. He submits that pursuant to that petitioner applied for a No Objection Certificate (NOC) for BBA and BCA courses for the 2024- 2027 session from the Respondent university vide letter dated 26.02.2024 for applying recognition from AICTE, New Delhi contained in Annexure-5 however, no response was made to the petitioner. He then submits that petitioner again approached the respondent university vide letter dated 12/03/2024 informing Respondent No. 2 about initiation of the process for obtaining the mandatory approval from AICTE, New Delhi for which 3 the petitioner required "receiving" from the respondent university on the said letter so as to initiate the approval process 2024-25 from AICTE. He further submits that pursuant to that Annexure-6 letter dated 12.3.2024 was certified by the University by fixing a stamp and in view of that the University was having such requirement and the petitioner was already before the University by way of application dated 08.09.2023. He further submits that after the said approval of the University the petitioner applied before the AICTE which was approved on 09.05.2024 and for that payment of Rs. 86,000/- was made by the petitioner. He further submits that Certificate of Establishment was made by the Ministry of Education, Government of India contained in Annexure-8 and the AICTE had made approval on 09.05.2024. He further submits that when the amount deposited with the University was not deducted the petitioner found that due to lapse of period said demand draft deposited before the University has not been encashed as the University has not deposited in the account. By way of Annexure-10 two bank drafts was again submitted on 18.05.2024 of Rs. 60,000/- each and that demand drafts are still lying with the University. He further submits that on 16.5.2024 petitioner received the notice that the petitioner's proposal of grant of NOC for starting BBA & BCA course for the session 2024-2028 has been turned down as documental evidence pertaining to initiation of the process for obtaining the mandatory approval from AICTE, New Delhi was not available. He submits that the said letter dated 16.5.2024 was handed over to the petitioner's representative by the University on 18.5.2024. He further submits that the petitioner filed application on 13.06.2024 before the University along with all the documents to grant affiliation as the last date as per 4 the AICTE for the said purposes is 31st July, 2024. He further submits that by way of Annexure-13 dated 18.06.2024 the State Government has also written letter to the University as to why affiliation is not being provided to the petitioner. In these background he submits that the impugned order of the University is afterthought. He further submits that the petitioner has already moved by filing application on 08.09.2023 along with all requisite document and the AICTE came into mandatory provision of approval on 22.01.2024. He submits that in the light of Rule 5 which is procedure for granting temporary affiliation the University was required to follow the same which was not followed by the University and Rule 18 which is meant for time frame for disposal of application is also not followed by the University in view of that the petitioner has already applied before 15th September 2023. He submits that if the University would have followed the Rules 5 and 18 the matter would have been otherwise and as at that time AICTE mandatory provision was not there. He further submits that however subsequently when it was communicated the petitioner has taken active action for the said approval and the application was also certified by the University pursuant to that AICTE has granted approval. He submits that it is well within the jurisdiction of the University to consider the case of the petitioner and grant approval as Government has also written letter contained in Annexxure-13 to that effect. He submits that law does not compel one to do that which one cannot possible perform and to buttress this argument he relied in the case of “IN RE Presidential Poll” reported in (1974) 2 SCC 33. He refers to para 15 of the said judgment which is quoted hereinbelow:- 5 “15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268).” 6. Relying on the said judgment he submits that since the petitioner has already taken steps it was laches of the University within the time frame it was not completed as the petitioner has already made infrastructure for the two new courses. He further relied in the case of “State of Rajasthan and Another Vs. Shamsher Singh” 1985 (Supp.) SCC 416. He refers to para 10 which is quoted hereinbelow:- “10. Mr Jethmalani placed before us a passage from Broom's Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non-compliance, particularly when it is a question of the time factor. Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non-compliance of Section 10 of the Act so as to vitiate the detention. It is useful to refer to a paragraph from a 6 judgment of this Court in Frances Coralie Mullin v.W.C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419 : (1980) 2 SCR 1095] while we are on this point. A Division Bench was dealing with a COFEPOSA detention. Section 8 of the COFEPOSA requires the appropriate Government to make a reference to the Board within five weeks from the date of detention. While dealing with an argument referring to this aspect of the matter, the Court observed: (SCC p. 279, para 5) “The four principles enunciated by the Court in Jayanarayan