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Continued Inaction Of State To Make Colleges Functional Is Against Principles Of Welfare State & Rule Of Law: HP HC

In a bold, brilliant and blunt judgment titled Ashok Negi v. State of Himachal Pradesh & others and connected petitioner [CWP Nos. 2232, 2320 & 2379 of 2018] delivered just recently on November 12, 2020, the Himachal Pradesh High Court minced no words to state in simple, straight and suave language that, “Continued inaction on part of State to make colleges functional is against principles of the welfare state and Rule of law. The public cannot be made to suffer due to lackadaisical attitude of the State.” The Bench of Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua was hearing writ petitions claiming inaction on the part of the respondent-State Government, in not opening certain Colleges, “which were announced by the previous government during the year 2017.” This certainly merited course correction and Himachal Pradesh High Court did not disappoint in doing so!

To start with, this latest, landmark and laudable judgment authored by Justice Jyotsna Rewal Dua for herself and Justice Tarlok Singh Chauhan first and foremost observes in para 1 that, “These writ petitions have been filed pro bono publico claiming inaction on part of the respondent-State Government in not opening certain Colleges, which were announced by the previous government during the year 2017.”

While first pointing out in para 2 that, “Involving common submissions, these writ petitions are taken up together for decision. For convenience facts of CWP No. 2232 of 2018 are being considered hereinafter”  it is then elaborated on the facts of the case by stating in para 3 that, “On 15.8.2017, the then Hon’ble Chief Minister announced opening of a Government Decree College (in short ‘GDC’) at Jeori, District Shimla. Opening of this new College was notified on 6.9.2017 from academic session 2017-18. From the record appended with the writ petition, it appears that the Sub Divisional Magistrate, Rampur was requested on 30.8.2017 by the Principal, GDC, Rampur to identify the land for the already announced new College at Jeori. A report furnishing details of colleges and schools existing in the area/Sub Division alongwith their distances from Jeori and the number of students enrolled in the schools was furnished to the department on 1.9.2017. On 12.9.2017 with handing over of four rooms of Government Senior Secondary School, Jeori to Government Decree College, Jeori, the Principal of GDC, Jeori announced start of newly opened GDC, Jeori. The State accorded consolidated administrative approval of Rupees fifteen crores and consolidated expenditure sanction for a sum of Rupees three lacs out of lump-sum budget provision made during the FY 2017-18 for construction of three Colleges including the newly announced GDC, Jeori vide letter dated 18.9.2017. The College was inaugurated by the then  Hon’ble Chief Minister on 19.9.2017. On 22.9.2017 certain teaching and non-teaching posts were created for the College. Some staff was subsequently deployed there. On 31.10.2017 Rupees one lac was sanctioned and remitted for the construction work of College building.”

Truth be told, the key point of para 4 is that, “The grievance raised in the writ petition is that with change of political guard, the situation in respect of functioning of the College also changed. The construction work of College building did not start. The staff deployed/posted in the newly opened College was transferred elsewhere. The college did not function despite the fact that 13 students including 10 girls had taken admission in the College for the academic year 2018-19.”

Equally relevant point of para 4 pertaining to the purpose of the writ petition is that, “CWP No. 2320 of 2018 and CWP No. 2379 of 2018 instituted with similar issues pertain to Government Degree College, Powabo, District Shimla and Government Degree College, Narag, District Sirmour, respectively. Opening of these two new Colleges was also announced in September 2017 but steps required to be initiated in furtherance of decision to open the Colleges were not taken. It is alleged that decision had been taken by the respondents to de-notify the newly opened Colleges. Hence, citing the public need to make the new colleges functional, the writ petitions were preferred challenging the decision to de-notify the newly opened colleges.”

Most significantly, the Bench then very rightly minces no words to observe aptly in para 5 that, “We have heard learned Counsel for the parties and gone through the record. The gist of submissions made on behalf of petitioners is that government runs in continuity. It is the prerogative of the State to frame policies and to review them. However, the decision making process has to be objective, reasoned and has to abide by the settled legal principles. In the instant case, notification announcing opening of new colleges was the outcome of careful consideration and analysis of all relevant aspects. Continued inaction on part of State to make these colleges functional is against principles of the welfare state and Rule of law. Public cannot be made to suffer due to lackadaisical attitude of State.”

To substantiate what has been stated above, the Bench then further points out ahead in this same para 5 that, “In support of the submissions and prayers made in the writ petition, reliance was placed upon (2006) 4 Supreme Court Cases 683, titled State of Karnataka And Another versus All India Manufactures Organization and Others, (2005) 1 Supreme Court Cases 625, titled Bannari Amman Sugars Ltd. Versus Commercial Tax Officer and others, (1978) 1 Supreme Court Cases 405, titled Mohinder Singh Gill and another versus The Chief Election Commissioner, New Delhi and others, (2011) 8 Supreme Court Cases 737, titled State of Tamil Nadu and others versus K. Shyam Sunder and Others, (2011) 9 Supreme Court Cases 286, titled Andhra Pradesh Dairy Development Corporation Federation versus B. Narasimha Reddy and others, (2018) 15 Supreme Court Cases 1, titled Chintpurni Medical College and Hospital and another Versus State of Punjab and Others and ILR 2015 (4) HP 635, titled Asha Ram and another versus State of H.P. and others.”

Furthermore, it is then pointed out that, “The stand of the respondent-State is that in the meeting held on 4.8.2018 under the chairmanship of Hon’ble Chief Minister, the issue of opening of new Colleges announced in the year 2017 including the ones involved in these three writ petitions was deliberated. Factual position was that enrollment of students in these Colleges was either very less or practically nil. The land was also not available for these Colleges. Therefore, it was not considered appropriate to make these newly announced colleges functional in academic session 2018-19. Accordingly, the staff posted for these Colleges was shifted to other Colleges. The proceedings of this meeting have been placed on record of CWP No. 2320 of 2018 by the petitioners therein.”

Finally, while catching the right nerve in taking the right decision, the Bench then aptly and appropriately holds  that, “Opening of a Government College is a policy decision of the Government permitting limited scope of judicial review. The respondents did not start the Colleges as the enrollment of the students in these Colleges was very less. College had neither any building/land and nor any infrastructure. It is for this reason that respondents did not start the College for the academic year 2018-19. The decision taken in the meeting dated 4.8.2018, therefore, cannot be termed as unreasoned, untenable, unrealistic or in contravention to the pronouncement in Dhrub Dev’s case (supra). We have been informed during hearing of the case that as of now no final decision has been taken either regarding making these Colleges functional or closing them. In the meeting chaired by the Hon’ble Chief Minister on 4.8.2018 the decision for not making the Colleges functional was confined to academic year 2018-19. Subsequently on 20.9.2018 ‘status quo order’ was passed by the Court. Since no final decision in the matter has yet been taken, therefore, without going further in the matter, we dispose of these writ petitions by vacating the interim order forthwith to enable the respondents to consider the matter and take appropriate final decision in accordance with law with respect to the Colleges involved in these writ petitions, which were announced in the year 2017. Pending application(s), if any, shall also stand disposed of.”

No doubt, this remarkable, recent, rejuvenating and refreshing judgment by a two Judge Bench of the Himachal High Court comprising of Justice Jyotsna Rewal Dua and Justice Tarlok Singh Chauhan sends a very loud and clear message to the Himachal Pradesh State Government that, “Continued inaction on part of State to make colleges functional is against principles of the welfare state and Rule of law. The public cannot be made to suffer due to lackadaisical attitude of the State.”

Needless to say, it is high time and at least now the State must now wake up and abide by what has been held by the two Judge Bench of the Himachal Pradesh High Court so explicitly, elegantly and effectively! The Bench also very rightly cites in para 5 that, “Even the observations found in another decision of the Apex Court pressed into service in the case of Villianur Iyarkkai Padukappu Maiyam (supra), in paragraphs 167 to 171 , which have been reproduced in the earlier part of this judgment, are indicative that the Executive or the Government of the day must work under some policy and not on the basis of sporadic and impromptu announcements made in disregard of the ground reality only for receiving popular accolade.” This observation fits the bill in this case also which is what it has been cited also! There can certainly be no denying or disputing it!


Sanjeev Sirohi

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