All India Council For Technical Education, vs Holistic Foundation Durg

The All India Council for Technical Education (for brevity 'the AICTE') is aggrieved by the impugned common order rendered by the Single Judge

quashing the orders of rejection dated 4-4-2018, whereby the AICTE has refused the writ petitioners/institutions to open new Pharmacy Colleges for

opening Degree and/or Diploma courses.

While in WA No.482 of 2018 the writ petitioner Holistic Foundation, Durg, desires to open the college in District Durg, in WA Nos.483 & 484 of

2018 the writ petitioners J.K. Institute of Pharmaceutical Educational & Research and Ayush College of Pharmacy desire to open two colleges at

different locations within the Bilaspur District. There being no dispute about the manner in moving the application for grant of approval before the

AICTE nor there being any dispute alleging that the writ petitioners lack any basic infrastructure, as required in the All India Council for Technical

Education (Grant of Approvals for Technical Institutions) Regulations, 2016 (for brevity, 'the Regulations, 2016'), we shall only advert to the core issue

involved in the writ petitions.

To be precise, the letter of rejection in the case of Holistic Foundation, did not mention any specific reasons for rejection, only mentioning NOC

present, but not accepted. In two other cases of J.K. Institute of Pharmaceutical Educational & Research and Ayush College of Pharmacy, in the

letter of rejection there is an endorsement in handwriting mentioning 'DTE NOC Presented, as per DTE letter (perspective plan) and Regional

Committee decision'.

Before the writ Court, the writ petitioners challenged the rejection on the ground that in accordance with Regulation 4.18 of the Regulations, 2016,

no views of the State Government have been forwarded and further that reliance placed by the AICTE upon the perspective plan is misplaced

because the State Government has not made any recommendation that approvals for courses of Bachelor in Pharmacy and Diploma in Pharmacy

should not be granted in districts where Pharmacy College already exists.

Rejecting the defence taken by the AICTE, the learned Single Judge has concluded that para 4.18 of the Regulations, 2016 enjoins the AICTE to

call for a report or views from the State Government and further the perspective plan nowhere prohibits opening of new pharmacy colleges in the

districts where pharmacy colleges are already in existence.

Shri Sandeep Dubey, learned counsel appearing for the appellant, would submit that the impugned order is a result of complete misreading of clause

4.18 of the Regulation, 2016 read with clause 1.4.7 of the Approval Process Handbook 2018-19. Shri Dubey would also submit that the decision taken

by the expert body has wrongly been interfered.

On the other hand, Shri Manoj Paranjape, Shri Kshitij Sharma & Shri Varun Sharma, Advocates, appearing for the respective respondents, would

submit that the rigor of Regulation 4.18 of the Regulations, 2016 has rightly been interpreted and applied by the learned Single Judge and that

perspective plan does not have primacy over the AICTE Regulations.

Shri Anumeh Shrivastava, learned counsel appearing for the CSVTU, would submit that the University has already issued the NOC to the writ

petitioner institutions subject to conditions enumerated therein.

We have heard learned counsel appearing for the parties at length.

To dwell on the rival submissions, it would be apt to reproduce clause 4.18 of the Regulations, 2016 and clause 1.4.7 of the Approval Process

Handbook 2018-19 : Regulations, 2016 :

 “4.18 The State Government/UT Administration and the Affiliating University/Board shall forward their views on the applications received under

Clause 4.1 as applicable, with valid reasons along with the perspective plan of the State, within a period of 21 days from the date of receipt of

applications which shall be taken into account by the Regional Committee for further processing for grant of approval. If the application is not

processed further, the processing fee after a deduction of 50000/- (Rupees Fifty thousand only) shall be refunded to the applicant. If the views of the

State Government/UT Administration and the Affiliating University/Board are not received within a prescribed time schedule as mentioned in the

Approval Process Handbook, it shall be presumed that they do not have any objection and the Council shall proceed further for processing of

applications. However, the Council shall consider the previous communications, if any, received from the State Government/UT administration, the

Affiliating University/Board against any Institutions.â€​

Approval Process Handbook 2018-19

1.4.7 Views of State Government/UT and Affiliating University/Board :

a. The State Government/UT and the Affiliating University/ Board shall forward to the concerned Regional Office of the Council, their views on the

application received by them, within a period of 21 days from the date of receipt of the application of an Institution with valid reasons or otherwise

along with the Perspective Plan of the Concerned State Government/UT and in any case, not later than the last date of submission of application as

per the prescribed schedule of AICTE. Perspective Plan provided by different States/UTs shall be displayed in the AICTE Web-Portal.

b. Based on the Perspective Plan of the Concerned State Government/UT, if any State Government/UT has not given the NOC for setting up of new

Institution, the Scrutiny/ Re-Scrutiny Committee shall reject the application. If the application is not processed further, the TER

Charges after a deduction of ₹ 50000/- (Rupees Fifty thousand only) shall be refunded to the Applicant.

c. In the absence of receipt of views from the State Government/UT and/or the Affiliating University/ Board on the application of an Institution, the

Council shall proceed for further processing.

In the perspective plan of Technical Education prepared by the State of Chhattisgarh, it was recommended that approvals for Diploma Pharmacy

and Bachelor of Pharmacy may be granted in districts, which do not have Pharmacy colleges.

It appears, considering the perspective plan, the Regional Committee recommended for further processing for establishment of only new pharmacy

institutions in those districts where no pharmacy institution existed in the State of Chhattisgarh.

A plain reading of the perspective plan would indicate that it does not prohibit opening of new colleges in districts where there already exists

pharmacy colleges. The learned Single Judge has also taken this view that the Regional Committee has unnecessarily read the prohibition in the

perspective plan when there was no such language used in the perspective plan of the State Government.

That apart, the Supreme Court in Jaya Gokul Educational Trust v Commissioner & Secretary to Government Higher Education Department,

Thiruvanathapuram, Kerala State and Another1 has

1 (2000) 5 SCC 231 held that the State could not have any policy outside the AICTE Act. Preparation of the perspective plan by the State was no

doubt directed by the Supreme Court itself in Jaya Gokul Educational Trust (supra), however, that is not the end of the word for AICTE as the issue

concerning approval for opening of new colleges or increase in intake capacity lies within the exclusive domain of the AICTE and the State

Government's perspective plan is not binding on the AICTE. If such perspective plan is held to be binding on the AICTE, it would amount to

abdication of the functioning by the AICTE, which is not permissible under the extant Regulations.

Albeit the perspective plan may have its own guidance or persuasive value but where rejection of application is based only on the perspective plan

without considering the issue that the institutions possess all the necessary infrastructure in terms of the Regulations, 2016, the decision would amount

to arbitrary exercise of power de hors the AICTE Regulations. We say the decision to be arbitrary because the perspective plan itself has not used

any such language, which has been read by the Regional Committee while passing the resolution to reject the application seeking approval.

We also feel appropriate to notice that under clause 4.18 of the Regulations, 2016 itself the State Government is required to forward its views, but

if the views of the State Government and the affiliating University are not received within the prescribed time schedule, as mentioned in the Approval

Process Handbook 2018-19, it shall be presumed that they do not have any objection and the Council shall proceed further for processing of

applications. In such case, the Council shall consider the previous communications, if any, received from the State Government and the affiliating

University against any institutions.

In the case at hand, the State Government has not forwarded its views against the petitioner institutions either apropos the perspective plan or in

relation to the required infrastructure, therefore, the State Government itself has not interpreted the perspective plan in the manner read by the

Regional Committee. The State Government being the author of the perspective plan, it was open for them to have opined by sending negative

recommendation that the State Government does not want the new colleges to be opened in such districts where the pharmacy college is already in

existence, however, the State Government has chosen to remain silent in the matter, which amounts to no objection.

Moreover, the affiliating University has already issued the NOC, as stated by its counsel before the writ Court as also in these appeals. Thus,

neither the State Government nor the University has any objection against the petitioner institutions for opening colleges in Durg & Bilaspur districts

where pharmacy college is already in existence.

In so far as the objection to the finding recorded in para 31 of the impugned order passed by the learned Single Judge that it is not the AICTE's

obligation to seek views from the State, but the same is required to be sent by the State Government to the AICTE within 21 days from the date of

receipt of copy of the application from the institution, learned counsel for the appellant appears correct in his submission because a conjoint reading of

clause 4.18 of the Regulations, 2016 read with clause 1.4.7 of the Approval process Handbook 2018-19 makes it apparent that forwarding of views is

an obligation of the State Government within 21 days after receipt of the copy of the application. The said part of observation made by the learned

Single Judge is set-aside, however, the learned Single Judge has rightly allowed the writ petitions preferred by the institutions.

As a sequel, all the writ appeals, sans substratum, are liable to be and are hereby dismissed. There shall be no order as to costs.

The interim order passed earlier stands vacated. It is expected of the AICTE that all follow up actions will be expeditiously taken within the

stipulated period.

Certified copy by tomorrow.