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2017 DIGILAW 1305 (HP)

Satyam Educational Society, Puhara v. State Of Himachal Pradesh

2017-11-27

AJAY MOHAN GOEL, TARLOK SINGH CHAUHAN

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of this writ petition, the petitioners have prayed for the following reliefs: "(a) To set aside and quash the orders, dated 17.02.2017 as contained at Annexure P-4 supra whereby the respondent-State has not granted the NOC/permission in favour of the petitioners to start GNM course with intake of 40 seats; (b) To direct the respondent-State to issue NOC/permission in favour of the petitioners to start GNM course with intake of 40 seats; (c) To call for the records of the case for the kind perusal of this Hon''ble Court; (d) Any other relief(s) as may be deemed just and proper keeping in view the facts and circumstances of this case may also kindly be granted in favour of the petitioners, in the interest of justice." 2. Petitioner No. 1, which is running a Nursing College in the name and style of Satyam College of Nursing at Village Lanjot, P.O. Basnoor, Tehsil Shahpur, District Kangra, applied for grant of No Objection Certificate (hereinafter referred to as "NOC")/permission to start General Nursing and Midwifery course (hereinafter referred to as "GNM Course") with an intake of 40 students. Its case was placed for consideration of Council of Ministers for issuance of NOC vide Memorandum, dated 16.02.2017, copy of which is appended at page No. 19 of the paper-book. As per the said Memorandum, details of the applicants, who were found eligible for issuance of NOC to start Nursing courses in terms of constructed area and hospital attachments, were provided in para 2.2 thereof, which reads as under: S.N. Name of the applicant Constructed area (sq. ft.) Hospitals For Attachment Course proposed Earlier After re-inspection 1. Batt Educational Society, Vill. Bonkhari Mod. PO Bathri, Tehsil Dalhousie, Distt. Chamba 39220 98294 Private Hospitals with 240 beds 1. GNM 40 Seats. 2. B.Sc. Nursing 40 seats 2. Satyam College of Nursing, Lanjot, Tehsil Shahpur, Distt. Kangra. 40323 57000 sq. Ft.+ 10,000 sq. Ft. propose-d area (67,000) Private Hospitals with 255 beds GNM 40 seats. (The institute is functional with 40 B.Sc. Nursing seats. 3. Swakar School/College of Nursing Sarkaghat, Distt. Mandi. 42090 +17200 sq. ft. proposed area (49290) Already attached with Govt. Hospitals. B.Sc. Nursing, 30 seats by reducing NOCs. of GNM and ANM from existing 40 to 30 each. Ft. propose-d area (67,000) Private Hospitals with 255 beds GNM 40 seats. (The institute is functional with 40 B.Sc. Nursing seats. 3. Swakar School/College of Nursing Sarkaghat, Distt. Mandi. 42090 +17200 sq. ft. proposed area (49290) Already attached with Govt. Hospitals. B.Sc. Nursing, 30 seats by reducing NOCs. of GNM and ANM from existing 40 to 30 each. Name of the petitioner-Nursing College was duly reflected in the details of the applicants, who were so found eligible for issuance of NOC at Sr. No. 2. 3. Grievance of the petitioners is that NOC was not issued in favour of the petitioner-Institute, as is evident from Annexure P-4, dated 20.02.2017, vide which, the petitioners were communicated that in its meeting held on 17.02.2017, the Cabinet had approved NOC only in the case of Sr. No. 1 and Sr. No. 3, meaning thereby that NOC was not approved in favour of College figuring at Sr. No. 2, i.e., the petitioner-Institute. The same stands assailed by way of present writ petition, inter alia, on the grounds that the case of the petitioner-Institute stood recommended after its evaluation by the Directorate level Evaluation Committee headed by the Director, Medical Education, despite this, No Objection Certificate stood refused to the petitioners without assigning any reason whatsoever. As per the petitioner-Institute, it stands discriminated as far as grant of NOC is concerned, because when all three Institutes which find mention in the Memorandum were duly recommended by the appropriate authority for the issuance of NOC to the Cabinet, then the act of Cabinet of considering only the case of two, out of the three applicants and arbitrarily ignoring the case of third applicant, i.e., the present petitioners by not granting NOC in its favour, is an act of colourable exercise of powers as well as discrimination. 4. In its reply, respondent-State while refuting the allegations of the petitioner-Institute has stated that there was no merit in the contention of the petitioner, because the case of the petitioner was duly put up before the Cabinet and the Cabinet in its wisdom decided not to issue NOC to start GNM Nursing course in favour of the petitioner-Institute. Nothing has been mentioned in the reply as to why the case of the petitioners for grant of NOC did not find favour with the Cabinet. 5. Nothing has been mentioned in the reply as to why the case of the petitioners for grant of NOC did not find favour with the Cabinet. 5. In its rejoinder, the petitioners while retreating its case, as has been put forth in the petition, controverted the averments to the contrary made in the reply. 6. We have heard Mr. R.K. Bawa, learned Senior Counsel for the petitioners as well as Mr. Anup Rattan, learned Additional Advocate General on behalf of the State. The original record of the case also stands produced by the learned Additional Advocate General. 7. A perusal of the records demonstrate that Memorandum, dated 16.02.2017, was placed for consideration of the Cabinet, which was held on 17.02.2017. The Memorandum so placed before the Cabinet qua grant of NOC in favour of the applicants Nursing Institutes stood decided as under: "Option No. 1 approved only in case of Sr. No. 1 & 3." 8. On record, there is nothing from which it can be inferred, as to what deliberations took place in the Cabinet leading to the non-grant of NOC in favour of petitioner-Institute or leading to the grant of issuance of NOC with regard to Institutes which were at Sr. Nos. 1 and 3 in the said Memorandum. 9. Therefore, in these circumstances, the moot issue which is for consideration before us is as to whether the Cabinet in its wisdom could have had not approved the issuance of No Objection Certificate in favour of the petitioner-Institute without assigning any reason whatsoever, especially in view of the fact that the Memorandum, which was placed before it in this regard contained recommendations for the issuance of NOC in favour of the petitioner-Institute. 10. Before we deliberate on the issue, we may state that this Court is not oblivious to the fact that wisdom of the Cabinet as to why a particular decision has been taken by it, is not open to judicial review, save and except if that wisdom does not pass the touchstone of Article 14 of the Constitution of India. We may also clarify at this stage itself that this Court is not going into the wisdom of the Cabinet as to why NOCs. were granted in favour of the Institutes which found mentioned at Sr. Nos. 1 and 3 of the Memorandum, which was so placed before the Cabinet. We may also clarify at this stage itself that this Court is not going into the wisdom of the Cabinet as to why NOCs. were granted in favour of the Institutes which found mentioned at Sr. Nos. 1 and 3 of the Memorandum, which was so placed before the Cabinet. The sole issue, which we shall be deciding is as to whether in the matter of the recommendations for issuance of NOC in favour of the petitioner-Institute, could the Cabinet have had refused the same without assigning any reason. 11. A three Judge Bench of the Hon''ble Supreme Court in Asif Hameed and others vs. State of Jammu and Kashmir and others, 1989 Supp.(2) Supreme Court Cases 364 has held that when a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. The Hon''ble Supreme Court has further held that while doing so, the Court must remain within its self-imposed limits and the Court sits in judgment on the action of a coordinate branch of the Government. The Hon''ble Supreme Court has further held that while exercising power of judicial review of administrative action, the Court is not an appellate authority and the Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. 12. The Hon''ble Supreme Court in Union of India and others vs. Dinesh Engineering Corporation and another, (2001) 8 Supreme Court Cases 491 has held that any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution of India. 13. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution of India. 13. Again, the Hon''ble Supreme Court in State of Orissa and others vs. Gopinath Dash and others, (2005) 13 Supreme Court Cases 495 has reiterated that the scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. 14. The Hon''ble Supreme Court in Bhubaneswar Development Authority and another vs. Adikanda Biswal and others, (2012) 11 Supreme Court Cases 731 has held that the judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision-making process and not on the correctness of the decision itself and the Court confines itself to the question of legality and is concerned only with, whether the decision-making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasaonable decision or abused its powers. 15. In Parisons Agrotech Private Limited and another vs. Union of India and others, (2015) 9 Supreme Court Cases 657 , the Hon''ble Supreme Court again while dealing with the scope of judicial review in a matter of policy decision held that no doubt, the writ Court has adequate power of judicial review in respect of such decisions. However, one it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determining the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. 16. A three Judge Bench of the Hon''ble Supreme Court in Centre for Public Interest Litigation vs. Union of India and others, (2016) 6 Supreme Court Cases 408 again held that a policy decision taken by the Government which is not arbitrary or not based on irreverent considerations or malafide or against any statutory provisions, should not be interfered by the Courts in exercise of power of judicial review. However, Supreme Court further held that minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of deliberations of the technical experts in the fields inasmuch as Courts are not well equipped to fathom into such domain which is left to the discretion of the execution. 17. Thus, it is evident from the law cited above that be it a policy decision or a Cabinet decision, the same is not beyond the scope of judicial review, so exercised by this Court in exercise of powers conferred upon it under Article 226 of the Constitution of India, however, the power has to be exercised with great restraint and interference can be there only if parameters of Article 14 of the Constitution of India are infringed and decision is not backed by cogent material or the same is arbitrary and is opposed to the provisions of the Constitution. 18. We respectfully abide with the law laid down by the Hon''ble Supreme Court that the policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles and in the matter of policy decisions or exercise of discretion by the Government should not be interfered as long as infringement of fundamental right is not shown. 19. Coming to the facts of the present case, a perusal of the impugned order as well as the records of the case demonstrate that there is no material on record from which it could be interfered as to what weighed with the Cabinet while not finding favour with the recommendations so as to grant NOC in favour of the petitioner. The entire record is silent. There is neither any reasoning available on record nor any deliberation of the Cabinet available on record in this regard. 20. Article 14 of the Constitution of India strikes at arbitrariness. Reasoning is the soul of a decision, be it an administrative decision, a policy decision, a Cabinet decision or a judicial decision. Why a particular conclusion has been arrived at by the Executive or the Cabinet should be borne out from the records. 20. Article 14 of the Constitution of India strikes at arbitrariness. Reasoning is the soul of a decision, be it an administrative decision, a policy decision, a Cabinet decision or a judicial decision. Why a particular conclusion has been arrived at by the Executive or the Cabinet should be borne out from the records. In our considered view, the discretion conferred upon the executive or the Cabinet to take a decision cannot be so arbitrary that it confers upon them a right to take a decision without assigning any reasoning. When the Memorandum so placed before the Cabinet contained recommendations for grant of NOC in favour of the petitioner - Institute, then in our considered view, least that was expected from the Cabinet while not agreeing with the said recommendations was to assign minimum reasoning to justify its decision. Absence of reasons so assigned in this regard renders the decision so taken by the Cabinet, as has been conveyed to the petitioner vide Annexure P-4 as arbitrary and thus, violative of Article 14 of the Constitution of India. 21. At this stage, we may also refer to the judgment of the Hon''ble Supreme Court in State of Himachal Pradesh and others vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, (2011) 6 Supreme Court Cases 597 relied upon by the learned Additional Advocate General. In the said judgment, the Hon''ble Supreme Court has held as under: "17. We have already adverted to the relief prayed for by the respondent-association in the said writ petition. Admittedly, there is no prayer for quashing of even earlier Cabinet decision or order of the government. The conclusion of the High Court quashing the Cabinet decision dated 18.07.2009 and as a consequence issuing several directions is unacceptable and contrary to the well established principles. First of all, there was no prayer for quashing of any decision of the State Government much less the subsequent Cabinet decision dated 18.07.2009. The conclusion of the High Court quashing the Cabinet decision dated 18.07.2009 and as a consequence issuing several directions is unacceptable and contrary to the well established principles. First of all, there was no prayer for quashing of any decision of the State Government much less the subsequent Cabinet decision dated 18.07.2009. If the High Court was interested in going into the said decision that too after reserving the judgment on 03.07.2009, it is but appropriate to reopen the case, permit the petitioner''s association to amend the relief portion, afford adequate opportunity to the State to put-forth their stand for modifying this "policy" curtailing certain courses under SCVT.Admittedly, the High Court has not resorted to such recourse and simply quashed the decision of the Cabinet dated 18.07.2009 and issued various directions which are impermissible. 18. As rightly pointed out by Mr. Altaf Ahmed, without any arguments having been heard, without there being any question raised by any party as to the validity of the Cabinet decision dated 18.07.2009 and without the same being in question, or any relief sought for in the writ petition, the High Court has gone into the said decision of the Cabinet having taken place after the judgment was reserved. The decision of the Cabinet generally ought not to be interfered with in judicial review so lightly as has been done in the present case.The quashing of the Cabinet decision without analyzing the pros and cons in the manner seeks to restrict the State''s constitutional authority and powers to frame policy especially in such vital areas like imparting technical education is not acceptable." 22. Coming to the present case, we have already quoted the relief clause, perusal of which clearly demonstrates that the decision of the Cabinet, as was conveyed to the petitioners, stands assailed in the relief clause and its quashing has been sought by the petitioners. Therefore, in our considered view, while respectfully agreeing with the preposition of law laid down by the Hon''ble Supreme Court in abovementioned case, the ratio so laid down therein is not applicable in the facts of the present case. 23. In view of above, this writ petition is allowed. Annexure P-4 is quashed and set aside to the extent it does not assign any reason as to why the case of the petitioner-Institute was not considered for grant of No Objection Certificate. 23. In view of above, this writ petition is allowed. Annexure P-4 is quashed and set aside to the extent it does not assign any reason as to why the case of the petitioner-Institute was not considered for grant of No Objection Certificate. However, we are not interfering with the decision of the Cabinet whereby it granted No Objection Certificates in favour of applicants No. 1 and 3, which find mention in Memorandum, dated 16.02.2017. Respondent-State is directed to place the matter for consideration of grant of No Objection Certificate for running GNM course with an intake of 40 students in favour of the petitioner-Institute again before the Cabinet forthwith for taking an appropriate decision in this regard. It is clarified that in case the Cabinet does not concur with the recommendations so made in favour of the petitioner-Institute, then the decision of the Cabinet should be backed with at least minimum reasoning. Petition stands disposed of accordingly, so also miscellaneous application(s), if any. No order as to costs.