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2021 DIGILAW 95 (JK)

Amrit ETT Institute v. UT of Jammu and Kashmir

2021-03-19

SANJAY DHAR, SANJEEV KUMAR

body2021
Judgment Sanjay Dhar, J.—Through the medium of instant petition, the petitioner-Institute has challenged order dated 07.08.2020 passed by respondent No.4 whereby a decision has been taken to consider the case of the petitioner-Institute for grant of affiliation for the next session i.e. 2020-22 subject to the production of fresh NOC from the Government. A direction, asking the respondents to grant affiliation to the petitioner-Institute for running the Diploma in Elementary Education course during the Session 2019-21 or, in the alternative to pay the compensation to the tune of Rs.50.00 lacs to the petitioner-Institute, has also been sought. 2. It is the case of the petitioner that it is an Institute established in accordance with law for imparting Elementary Teachers Training Course which is now called as ‘Diploma in Elementary Education’. It is averred that after fulfilling the requisite norms and guidelines, the petitioner-Institute was granted NOC by the Government which was valid for one academic session, whereafter the same came to be extended from time to time on deposition of requisite fee. It is the case of the petitioner-Institute that it has been granted NOC by the Government for the session 2019-21 as well, whereafter it approached the respondent-Board i.e., J&K Board of School Education for grant of affiliation for the session 2019-21. It is alleged that the respondents did not conduct any inspection of the petitioner-Institute for more than one month and after conducting the inspection, certain deficiencies were pointed out which were immediately rectified by the petitioner-Institute. It is further averred that the petitioner-Institute was permitted to participate in the counseling process provisionally along with other nine Institutes in terms of the communication dated 20.12.2019 issued by respondent No.4. 3. The Affiliation Committee is stated to have considered the matter pertaining to the petitioner-Institute on 10.02.2020 and it was observed that the inspection team had recommended that the affiliation be granted to the petitioner-Institute for the session 2019-21 with a condition that it will remove all the deficiencies pointed out by the Inspection Committee within a period of two months and, accordingly, an inspection team was also constituted to verify status regarding removal of the deficiencies. The Affiliation Committee deferred the conditional recommendations of the inspection team so as to get the matter regarding removal of deficiencies verified through a team of officers, to be appointed by the Chairman. The Affiliation Committee deferred the conditional recommendations of the inspection team so as to get the matter regarding removal of deficiencies verified through a team of officers, to be appointed by the Chairman. It is averred by the petitioner-Institute that it kept on approaching the respondents a number of times as the career of 120 candidates, who were allocated to the petitioner-Institute, was at stake, but no action was taken by the respondents compelling the petitioner-Institute to file a writ petition bearing WP(C) No.1080/2020, wherein it was pleaded that the petitioner-Institute had removed the deficiencies. 4. Vide order dated 16.07.2020 passed by this Court in the aforesaid writ petition, the respondents were directed to determine the eligibility of the petitioner-Institute for grant of affiliation for the session 2019-21 within a period of two weeks. It is alleged that in spite of this order, the matter was not considered by the respondents and ultimately, the impugned order came to be passed whereby it was provided that the case of affiliation of petitioner-Institute will be considered for the session 2020-22 and not for the session 2019-21. 5. The aforesaid decision of the respondents has been challenged by the petitioner on the grounds that the impugned order is actuated with mala fide as so many other similarly situated Institutes have been granted affiliation by the respondents; that despite the petitioner-Institute making good all the deficiencies, the respondents did not constitute an inspection team and did not undertake the requisite inspection which they were duty bound to do which resulted in deferring of petitioner’s case in the meeting of the Affiliation Committee held on 10.02.2020; that the Inspection Committee was deputed by the respondents only after a period of five months and it was reported by the said Committee that the deficiencies have been removed, but still then, the respondents did not grant the affiliation in favour of the petitioner-Institute for the session 2019-2021; that the petitioner-Institute has invested huge amount of money and in case the affiliation is not granted in favour of the petitioner-Institute for the session 2019-21, it will incur huge losses and even career of the students, who have been allocated to the petitioner-Institute, would be put to risk as these students continue to receive training from the petitioner-Institute despite the order of withdrawal of students having been made by the respondents. 6. 6. Respondents No. 2 to 4 have resisted the writ petition by filing objections thereto. In their objections, they have contended that despite having availed the repeated opportunities, the petitioner-Institute failed to remove the deficiencies pointed out by the members of the inspection team of the Board before the cut-off date fixed for removing of such deficiencies, i.e., 27.12.2019, as a result of which, the petitioner-Institute was not granted the affiliation by the Board for the session 2019-21. It has been further averred that the counseling process for the session 2019-21 was closed on 27.12.2019 and thereafter the class work for the said session had started from 27.01.2020. Thus, keeping in view the academic career of those students, who had opted for the petitioner-Institute, they were directed to be shifted to the other affiliated Institutes based on their second and third choice. This was done on the basis of decision by the Affiliation Committee of the Board and, accordingly, vide Notification dated 14.02.2020, the students allocated to the petitioner-Institute were shifted to the other affiliated Institutes. 7. It is further case of the respondents that when the petitioner-Institute applied for grant of affiliation for the session 2019-20, an inspection team was deputed to visit the spot. The petitioner-Institute was inspected on 08.05.2019 and certain deficiencies were found which were directed to be removed within a period of two months. The Affiliation Committee again met on 25th October, 2019 to consider the cases of ETT Institutes including the case of the petitioner-Institute. However, even by that date, the deficiencies pointed out by the inspection team were not removed by the petitioner and a further time of 15 days’ was given to the Institutes including the petitioner-Institute to remove the deficiencies. The last date for admission and counseling was extended up to 27.12.2019 and the petitioner-Institute along with other Institutes, who were having deficiencies were provisionally allowed to participate in the counseling process subject to grant of affiliation by the Affiliation Committee of the Board. It is further contended by the respondents that the Committee again held a meeting on 10.02.2020, but, by that time, the petitioner-Institute had not removed the deficiencies as pointed out by the inspection team. It is further contended by the respondents that the Committee again held a meeting on 10.02.2020, but, by that time, the petitioner-Institute had not removed the deficiencies as pointed out by the inspection team. Accordingly, the case of the petitioner-Institute was deferred and it was further resolved that since the class work for the session 2019-21 had already started on 27.01.2020, therefore, the students, who had opted for the petitioner-Institute during counseling be shifted and allotted to the other Institutes. 8. We have heard learned counsel for the parties and perused the material on record. 9. Certain facts, which have not been disputed by the parties, are required to be noticed. The petitioner-Institute was granted NOC by the Government for the academic session 2019-21, whereafter it applied for affiliation to the respondents. It is not in dispute that on 08.05.2019, certain deficiencies were pointed out by the Inspection Team with regard to the petitioner-Institute, which it was asked to remove within two months. It is also not in dispute that the respondents granted provisional permission to the petitioner-Institute to participate in the counseling process vide its notice dated 20.12.2019. This was subject to grant of affiliation by the State Affiliation Committee of the Board. The aforesaid provisional allotment of candidates was withdrawn by the Board vide its Notification dated 14.02.2020. It is not disputed that the case of affiliation pertaining to the petitioner-Institute was considered by the State Affiliation Committee in its meeting held on 10.02.2020 in which it was resolved to defer the case of the petitioner-Institute so as to get the status regarding removal of deficiencies verified through a team of officers. A further decision was taken that the students, who have opted for the said Institute, would be shifted to other Institutes as per their second and third choice. It appears that the Notification dated 14.02.2020 (supra) has been issued by the respondents in pursuance of a decision taken in the Committee’s meeting held on 10.02.2020. 10. The contention that has been raised by the petitioner-Institute is that it had removed the deficiencies well in time and, therefore, it was obligatory on the part of the respondents to subject the petitioner-Institute to another inspection and thereafter consider its case and if, at all, any delay has occasioned in this regard, it is attributable to the respondents. 11. The contention that has been raised by the petitioner-Institute is that it had removed the deficiencies well in time and, therefore, it was obligatory on the part of the respondents to subject the petitioner-Institute to another inspection and thereafter consider its case and if, at all, any delay has occasioned in this regard, it is attributable to the respondents. 11. In order to determine the merits of this contention of the petitioner-Institute, we need to take note of the relevant provisions of the J&K School Education Rules, 2010. Clauses (a) and (b) of Rule 4 of the said Rules are relevant to the context and the extracts of same are reproduced as under: “(a) After receipt of the application, the competent authority or any official/s authorized by him for the purpose shall, within 15 days from the receipt of the application refer the matter for spot inspection of the said institution, or for examination of the project/proposal (as the case may be) vis-a-vis the norms of infrastructure, equipment, staff and other requirements, as laid down under rules 5, 6 and 11 of these rules, to the committees comprising following officers/officials; namely: $$$$ Make Table 1. In case of ETT/NIT Institutions a) Joint Director b) Chief Education Officer c) Jt. Secretary/Deputy Secretary/Assistant Secretary, JKBOSE 2. In case of High and Higher Secondary Schools a) Principal of a Government Higher Secondary, School b) Assistant Secretary, JKBOSE 3. In case of Middle Schools running upto 8th Standard a) Zonal Education Officer b) Headmaster of Government High School (b) Inspection procedure: The following procedure shall be followed for inspection of the Institutes; namely: (a) Application for affiliation/recognition as per devised proforma, complete in all respects shall be submitted online on JKBOSE, website. (b) JKBOSE shall constitute an inspection committee within 10 days of receipt of application”. (c) in case of any deficiency, JKBOSE shall communicate the same to the applicant within 7 days, otherwise it shall be presumed fit for inspection. (d) As and when applicant informs the fulfillment of deficiency, the inspection team shall be constituted within 10 days for conduct of inspection. (e) The inspection committee shall submit its report within a period of 15 days from the date of appointment. (f) The competent authority shall examine the report so received and take final decision thereon within 30 days and convey the same to the educational agency. (e) The inspection committee shall submit its report within a period of 15 days from the date of appointment. (f) The competent authority shall examine the report so received and take final decision thereon within 30 days and convey the same to the educational agency. (g) The total time involved would be a maximum of 75 days. (h) Affiliation/Recognition committee shall meet every 3rd Monday of the month. In case, the earmarked day is a holiday, the meeting shall be held on next working day. (i) All cases for affiliation/recognition shall be submitted in respect of both Kashmir/Jammu province three months prior to the commencement of sessions. (j) No provisional approvals shall be granted. (k)……………………… (l)………………………… (m)………………………… (n)………………………….” 12. From a perusal of the aforesaid Rules, it is clear that once an application for affiliation is made, the matter is to be referred by the respondents for spot inspection of the Institute within 15 days from the date of receipt of such application and an inspection team is to be constituted within 10 days. The Rules further provide that in case of any deficiency, the same has to be communicated to the applicant within 7 days. Sub-clause (d) of Clause (b) of Rule 4 of aforesaid Rules provides that when the deficiencies are pointed out, the applicant has to inform the fulfillment of the deficiency, whereafter the inspection team is to be constituted by the respondents within 10 days for conduct of the inspection. 13. It is the admitted case of parties that certain deficiencies were pointed out in the case of petitioner-Institute. The question arises whether the petitioner-Institute, after removal of the said deficiencies, gave any intimation about the same to the respondents. Sub-clause (d) of Clause (b) of the Rules casts an obligation upon an applicant to inform the Board as and when deficiencies are made good so that the Board constitutes a team for undertaking the inspection. It has been vehemently contended by learned counsel for the petitioner-Institute that it approached the respondents immediately after removal of the defects. However, no communication or document in this regard has been placed on record by the petitioner-Institute to show that it did approach the respondents informing them about the removal of deficiencies. It has been vehemently contended by learned counsel for the petitioner-Institute that it approached the respondents immediately after removal of the defects. However, no communication or document in this regard has been placed on record by the petitioner-Institute to show that it did approach the respondents informing them about the removal of deficiencies. In fact petitioner-institute vide its supplementary affidavit has placed on record a copy of the abstract of decision of Sub Committee of State Affiliation Committee dated 24.10.2019, according to which certain deficiencies are shown outstanding against the name of petitioner-institute, which means that even on said date, the deficiencies were not removed by the petitioner. 14. As per stand of the respondents, the Affiliation Committee of the Board in its meeting held on 25.10.2019 granted provisional permission to petitioner-Institute to participate in the counseling process, subject to grant of affiliation by the Affiliation Committee of the Board and a further time of 15 days was given for removal of deficiencies. This position is not disputed by the petitioner-Institute. Having been accorded the provisional permission subject to removal of deficiencies, it was all the more incumbent upon the petitioner to inform the respondents about the removal of deficiencies, which as per the material on record, it has not done. Therefore, there was no corresponding duty cast upon the respondents to undertake the inspection of petitioner-institution. 15. From a perusal of the documents placed on record by the parties with their pleadings, it transpires that it is only when the State Affiliation Committee met on 10.02.2020, it was brought to the notice of the said Committee that the petitioner-Institute had removed the deficiencies. The Committee immediately recommended the constitution of inspection team and having regard to the fact that classes had already started on 27.01.2020, the Committee further resolved that keeping in view the academic career of the students allocated to the petitioner-Institute, they may be shifted to some other affiliated Institutes. The record further shows that the Inspection Committee was constituted vide communication dated 06.03.2020, but due to outbreak of Covid-19 pandemic, the Committee could not inspect the petitioner-Institute until 13th July, 2020. 16. Keeping in view the aforesaid position, which has emerged from the pleadings of the parties and the documents on record, it becomes clear that the petitioner-institute had not removed the deficiencies until the commencement of the academic session 2019-21. 16. Keeping in view the aforesaid position, which has emerged from the pleadings of the parties and the documents on record, it becomes clear that the petitioner-institute had not removed the deficiencies until the commencement of the academic session 2019-21. It had failed to do the needful within the stipulated period of two months afforded to it pursuant to inspection dated 08.05.2020 and even after availing further period of 15 days in terms of Resolution dated 25.10.2019 of the State Affiliation Committee, the needful was not done. Thus, petitioner-institute has nobody else, but itself to blame for the delay in removal of deficiencies and consequent loss of chance of getting itself affiliated for the session 2019-2021. 17. A perusal of Rules governing the field of granting affiliations makes it manifest that, without removal of deficiencies, there cannot be any approval to affiliation. Therefore, the respondents were well within their rights to refuse affiliation to the petitioner-institute for the session 2019-21 as it had failed to remove the deficiencies before the beginning of academic session. 18. Defending its decision of not according affiliation to the petitioner for the session 2019-21, the learned counsel for the respondents has submitted that academic calendar has to be strictly adhered to and when the petitioner could not remove the deficiencies before the commencement of class, i.e., before 27.01.2020, the respondents were left with no other option, but to decline the affiliation to the petitioner-institute for the session 2019-21. The respondents have placed on record copy of the Academic Calendar, which reads as under:- S. No. Activities/Events Jammu & Kashmir Divisions. 1. Application for Affiliation/Renewal, complete in all respects, on the prescribed form alongwith fee etc. 1st Jan to 31st March every year 2 Admission Notification 1st week of June every year 3 Last date of Receipt of Applications for Admission 31st August 4 Centralized Admission/Counseling 20th September, to 20th October. 5 Management Seats 31st August 6 Class works and Teacher practice 1st week of Nov. to ending April 7 Preparatory Holidays 1st May to 14th May 8 Exams and Final Teaching Practice Exam 15th May to 14th May 9 Holidays/summer/winter break 15th June to 31st July. 10 Result Up to 25th August 19. 5 Management Seats 31st August 6 Class works and Teacher practice 1st week of Nov. to ending April 7 Preparatory Holidays 1st May to 14th May 8 Exams and Final Teaching Practice Exam 15th May to 14th May 9 Holidays/summer/winter break 15th June to 31st July. 10 Result Up to 25th August 19. From a perusal of the aforesaid academic calendar, it is clear that class work has to take place in the first week of November, thus, granting affiliation to the petitioner-institute after first week of November, would have resulted in delay in academic session and consequent non-adherence to academic calendar. Although in the instant case, class work has started on 27.01.2020, yet even by that date also, the deficiencies were not removed by the petitioner-institute. Any further relaxation on the part of the respondents in the matter of grant of affiliation to the petitioner-institute would have resulted in further delay in commencement of academic session. 20. The sanctity of adherence to academic schedule in the matter of professional and educational courses has been repeatedly emphasized by the Supreme Court in a number of cases. In “Chandigarh Administration and another vs. Jasmine Kaur and ors, (2014) 10 SCC 521 ”, the Supreme Court has held that there cannot be any compromise with the rule of merit or principle of strict adherence to time schedule. The aforesaid ratio has been relied upon and followed by the Supreme Court in a later judgment rendered in the case of “S. Krishna Sradha vs. The State of Andhra Pradesh, 2019 SCC Online SC 1609.” 21. In “Unni Krishnan, JP and ors vs. State of Andhra Pradesh and ors, (1993) 1 SCC 645 ”, the Supreme Court has unequivocally held that right to establish an educational institution does not carry within it right to recognition or right to affiliation. Grant of recognition or affiliation is neither a matter of course, nor is it a formality. The affiliation has to be as per the prescribed statutory conditions and their strict adherence by all the concerned. The conditions of recognition and duly notified directions controlling the admission process are to be construed and applied strictly. This cannot be varied from case to case. Time schedule is one such condition specifically prescribed for admission to Colleges. The affiliation has to be as per the prescribed statutory conditions and their strict adherence by all the concerned. The conditions of recognition and duly notified directions controlling the admission process are to be construed and applied strictly. This cannot be varied from case to case. Time schedule is one such condition specifically prescribed for admission to Colleges. The Supreme Court in Rajan Purohit & ors vs Rajasthan University of Health Science and ors, (2012) 10 SCC 770 and Medical Council of India vs Madhu Singh and ors, (2002) 7 SCC 258 , has held that adherence to admission schedule is a subject which requires strict conformity by all the concerned, without exception. Thus, it is the requirement of law that there should be strict adherence to the time schedule not only for the admissions, but even for grant of approval. 22. In the instant case, the petitioner-Institute failed to comply with the requirements for grant of affiliation within the time schedule, i.e., before the beginning of admission process, therefore, it has no right to seek a direction against the respondents to grant affiliation to it in respect of a course which is already more than half way through. 23. Learned counsel for the petitioner has made a feeble attempt to challenge the impugned order on the ground that some other similarly situated institutes have been granted affiliation by the respondents. The contention has been denied by the respondents. The petitioner has not backed its contention with any document. Even otherwise, we have already observed that without removal of deficiencies prior to commencement of academic session, no affiliation can be granted. Therefore, even if respondents have granted affiliation in breach of aforesaid legal position, the same does not give a right to petitioner to ask for perpetuation of illegality. One wrong does not justify another wrong. Therefore, the contention of the petitioner is bound to fail. 24. There is yet another aspect of the matter which is required to be noticed. Rules of 2010, which governs the field of establishment of ETT Institutes, provide that the affiliation/recognition is to be submitted three months prior to commencement of session. Sub-clause (i) of Clause (b) of Rule 4 as quoted above is very clear about it. Sub Clause (j) further provides that no provisional approvals shall be granted. Rules of 2010, which governs the field of establishment of ETT Institutes, provide that the affiliation/recognition is to be submitted three months prior to commencement of session. Sub-clause (i) of Clause (b) of Rule 4 as quoted above is very clear about it. Sub Clause (j) further provides that no provisional approvals shall be granted. As per the academic calendar produced by the respondents, applications for affiliation/renewal are to be received from 1st January to 31st March every year and the admission notification is to be issued in the first week of June every year. In the instant case, as per the case of the parties, the matter regarding affiliation was considered by the respondents-Board and the inspection of petitioner-institute was conducted for the first time on 08.05.2019. Certain deficiencies were pointed out and the petitioner was asked to remove them within two months. The Centralized admission/counseling as per the aforesaid calendar was to be held from 20th September to 20th October. Beyond this period, there was no scope for the respondents to entertain any request with regard to removal of deficiencies. Instead of doing so, the respondents went ahead and in its meeting held on 25th October, 2019, it decided to grant provisional permission to the petitioner-institute and allowed it to participate in the counseling. 25. As already noted, Sub-clause (j) of Clause (b) of Rule 4 clearly provides that no provisional approvals are to be granted. The respondents by granting provisional approval to the petitioner-Institute has observed the aforesaid rule in breach thereby raising false hopes in the mind of the petitioner-Institute as well as putting at risk the career of a number of students, who had opted for the petitioner-Institute. This approach of the respondents was absolutely unwarranted and had no sanction of law. Respondent-Board is well advised to avoid grant of provisional approvals in future. 26. For the foregoing reasons, we do not find any merit in this writ petition. The same along with connected CMs is dismissed, accordingly.