JUDGMENT
R.M. Lodha, J.
1. Vidya Niketan Shikshan Pratisthan was granted permission by the State Government to start a new Arts and Commerce College at Hinganghat by order dated 29-6-2001. Shri Bapuraoji Deshmukh Foundation, Hinganghat was granted permission to start new Arts College at Hinganghat by the State Government vide its order dated 14-7-2001. Gramin Vikas Sanstha the first petitioner runs R.S. Bidkar College at Hinganghat having Arts, Commerce and Science faculties. The said college is being run since 1961 and by this petition the first petitioner and the two other petitioners who are teachers working in R.S. Bidkar college seek to challenge the orders dated 29-6-2001 and 14-7-2001 whereby the State Government granted permission to the institutions afore-referred for starting new Arts and Commerce colleges at Hinganghat.
2. On facts, there is no dispute that no Perspective Plan as contemplated under Section 82 was prepared by Nagpur University for educational development, for location of colleges and institutions of higher learning within the jurisdiction of Nagpur University, Since no Perspective Plan as noted above has been prepared by Nagpur University for the area within its jurisdiction, obviously the question of approval by State Council for Higher Education did not arise. The question before us is :–
Where for want of preparation of Perspective Plan by Nagpur University for the location of colleges and institutions of higher learned and approval thereof by the State Council for Higher Education as contemplated under Section 82 of the Maharashtra Universities Act, 1994, the orders dated 29-6-2001 and 14-7-2001 whereby the State Government granted permission to Vidya Niketan Shikshan Pratisthan (respondent No. 3) to start new Arts and Commerce College and the permission to Shri Bapuraoji Deshmukh Foundation (respondent No. 4) to start new Arts College at Hinganghat can be sustained?
3. Before we proceed further, we complete the facts by narrating that the applications made by respondent Nos. 3 and 4 for opening Arts and Commerce College and Arts College respectively at Hinganghat were forwarded by Nagpur University to the State Government on 13-12-2000. The said applications were considered by the State Government and as already noted above, by the orders dated 29-6-2001 and 14-7-2001, the permissions were granted to respondent Nos. 3 and 4 respectively.
4. Mr. A.A. Naik, the learned Counsel appearing for petitioners, contended that the permissions granted to respondent Nos. 3 and 4 are not in conformity and accord with Section 82 of the Maharashtra Universities Act, 1994 (for short “Act of 1994”) and any permission granted in breach and contravention of the Act of 1994 is unsustainable. Relying upon the Division Bench judgment of this Court in Dhananjay R. Kulkarni and Ors. v. State of Maharashtra and Ors. reported in 1999(2) Mh.LJ. 323 and yet another Division Bench judgment of this Court in Navnirman Shikshan Prasarak Mandal v. The State of Maharashtra and Ors., reported in 2001(1) All M R 684, the learned Counsel for petitioners submitted that the preparation of Perspective Plan by University and its approval by the State Council for Higher Education is mandatory before the application for opening a new college or institution of higher learning could be considered.
5. Ms. B.H. Dangre, the learned Assistant Government Pleader for the respondent No. 1 State, in the light of the position being reflected from Section 82 of Act of 1994 and the legal position laid down by the two Division Benches of this Court in Dhananjay R. Kulkarni and Navnirman Shikshan Prasarak Mandal fairly submitted that for want of preparation of Perspective Plan and its approval thereof, it is very difficult for her to justify and defend the impugned orders dated 29-6-2001 and 14-7-2001 whereby the permissions were granted to respondent Nos. 3 and 4 respectively for opening Arts and Commerce College and Arts College respectively at Hinganghat.
6. Mr. B.G. Kulkarni, the learned Counsel for Nagpur University was not in a position to controvert the aforesaid legal position. He, however, submitted that for want of preparation of Perspective Plan – as it is time consuming process, on the basis of the guidelines issued by the State Government, the Board of College and University Development has laid down the norms for effective consideration of the proposals for starting new colleges/institutions and every proposal received by the University is evaluated by applying the norms which are prescribed by the Board of College and University Development. The learned Counsel submitted that the factors which are taken into consideration while evaluating the application for opening new colleges/institutions are :–
(a) Number of colleges with the similar faculties existing in the said area, (b) Number of students passing XIIth standard examination from various institutions located within the radius of 15 kms. from that township, (c) The sanction intake capacity of the colleges presently existing and the number of students admitted in the college, (d) Any demand and sanction granted by the State Government for additional sections to the existing colleges. In this backdrop, the Counsel for University submitted that non-framing of Perspective Plan by University shall not preclude the University from making recommendations for opening of new colleges and institutions. 7. The contention of the learned Counsel for respondents Nos. 3 and 4 was also to the effect that for want of Perspective Plan, the University is not precluded from recommending the proposals for opening new colleges and institutions. He sought to place reliance on Sections 35 and 36 of the Act of 1994. 8. We reflected over the matter thoughtfully and in our considered view, the permission granted by the State Government to the respondent No. 3 and respondent No. 4 vide orders dated 29-6-2001 and 14-7-2001 for starting new Arts and Commerce College and Arts College respectively at Hinganghat is legally unsustainable. Section 82 of the Act of 1994 reads thus :--
Section 82. (1) The University shall prepare a perspective plan, and get the same approved by the State council for Higher Education for educational development for the location of colleges and institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of unserved and under-developed areas within the jurisdiction of the university. Such plan shall be prepared by the Board of College and University Development, and shall be placed before the Academic Council and the Senate through the Management Council and shall, if necessary, be updated every year.
(2) No application for opening a new college or institution of higher learning, which is not in conformity with such plan, shall be considered by the university. ,
(3) The managements seeking permission to open a new college or institution of higher learning shall apply in the prescribed form to the. Registrar of the university before the last day of October of the year preceding the year from which the permission is sought.
(4) All such applications received within the aforesaid prescribed time-limit, shall be scrutinised by the Board of College and University Development and be forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Managing Council.
(5) Out of the applications recommended by the university, the State Government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the State Government’s budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning.
Provided, however, that in exceptional cases and for the reasons to be recorded in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning.
Provided further that, from the academic year 2001-2002, such permission from the State Government shall be communicated to the university on or before 15th July of the year, in which the new college is proposed to be started. Permissions received thereafter shall be given effect by the university only in the subsequent academic year.
(6) No application shall be entertained directly by the State Government for the grant of permission for opening new college or institutions of higher learning.”
9. The close reading of the aforesaid provision which provides for procedure for permission for opening a new college or institution of higher learning would show that preparation of Perspective Plan by the University is sine qua non for consideration of the application for opening a new college or institution of higher learning by the University. Not only, that Clause (1) of Section 82 uses the words “shall” in a mandatory form when it provides that University shall prepare a Perspective Plan and get the same approved by the State Council for Higher Education for educational development for the location of colleges and institutions of higher learning in a manner ensuring equitable distribution of facilities for higher education but also Clause (ii) provides in unequivocal terms that no application for opening a new college or institution of higher learning shall be considered by University which is not in conformity with such plan. The first thing that must be satisfied before any application for opening a new college or institution of higher learning can be considered is the preparation of Perspective Plan by University and its approval thereof by the State Council for Higher Education for educational development. It is necessary for planned and orderly growth of education. The preparation of Perspective Plan and its approval is the foundation on the basis of which the consideration of the application for opening a new college or institution of higher learning rests. In other words, it is the preparation of Perspective Plan by the University and its approval which sets in motion the further process for consideration of applications for opening a new college or institution of higher learning. The view we have indicated above finds ample support from the Division Bench judgment of this Court in Dhananjay R. Kulkarni (cited supra). The Bench speaking through Y.K. Sabharwal, C.J. (as he then was) has held in unequivocal terms that an application for opening a new college or institution of higher learning which is not in conformity with the Perspective Plan cannot be considered by the University. In paragraph Nos. 10, 11, 12 and 13 the Division Bench held thus :–
“10. It is clear from the aforesaid provisions that such applications, which are not in conformity with the perspective plan and thus are outside the purviews of the University for consideration, are also to be scrutinised by the Board of College and University Development and the same are also required to be forwarded to the State Government. These applications are only scrutinised under Sub-section (4), but are not considered, in view of the bar contained in Sub-section (2) of Section 82. The language of the proviso, on which strong reliance has been placed by the learned Advocate-General, provides, that in respect of the applications not recommended by the University the State has powers in exceptional cases, on reasons to be recorded in writing, to grant approval for starting a new College. The proviso, to our minds, deals with such applications which are considered by the University and then not recommended and in respect of such applications, the State Government has overriding power to grant approval in exceptional cases. It does not postulate a power to grant approval in respect of the applications which the University is even debarred to consider. This interpretation is also in consonance with the entire scheme of Section 82, including the bar contained in Sub-section (2) and Sub-section (6) of Section 82. The Proviso, on which reliance has been placed on behalf of the State Government, is proviso to Sub-section (5) and not in the nature of a non- obstante clause to the entire section. When applications are filed by the managements, Section 82 contemplates three situations :–
(1) Applications not considered by the University, (2) Applications considered and recommended by the University, and, (3) Applications considered and not recommended by the University.
The power of the State Government under this proviso is in respect of the applications which are considered and not recommended, and not in respect of the applications which are not even considered. The power of the State Government in respect of the applications recommended by the University are found in substantive Sub-section (5). From the mere fact that all applications, which are scrutinised, including those which are not considered, are required to be sent to the State Government, it is not possible to reach the conclusion that, even in respect of such not considered applications, the State Government has power under the proviso to grant approval. It is possible that, when such applications which are not considered are forwarded to the State Government, the State Government may find that the University was wrong in not considering the applications on the ground that the same are not in conformity with the Perspective Plan and, in those circumstances, it may require University to consider such applications. We may also briefly notice certain other provisions of the Act which lent support to only conclusion on the scope of power of State Government under proviso to Section 82(5).
11. Section 4 sets out the objects of the University, which is to disseminate, create and preserve knowledge and understanding by teaching, research, extension and service and by effective demonstration and influence of its corporate life on society in general. It, inter alia, sets out as one of its objectives to extend the benefits of knowledge and skills for development of individuals and society by associating the University closely with local and regional problems of development, to promote equitable distribution of facilities of higher education; to provide for efficient and responsible administration, scientific management and develop organisation of teaching and research; and to promote acquisition of knowledge in a rapidly developing and changing society and to continually offer opportunities of upgrading knowledge, training and skills in the context of innovations, research and discovery in all fields of human endeavour by developing higher educational network. Section 5, which sets out powers and duties of University, inter alia, includes the powers to make provision to enable conducted and affiliated Colleges and recognised institutions to undertake specialised studies and to lay down the conditions of affiliations, evaluation of the academic performance, to inspect the affiliated and recognised institutes, to recommend to take over in the public interest the management of some or all affiliated Colleges and to do all such other acts and things as may be necessary for or incidental or conducive to the attainment of all or any of its objects. Section 8 of the Act shows that primarily the control of the State Government is in respect of the financial matters and the service conditions as well as other matters closely connected with the finance, which is provided by the Government.
12. Chapter IV sets out various authorities of the University such as Senate, Management Council, Academic Council and Board of College and University Development, their constitution, powers, functions and duties. Section 28(aa) provides that the Management Council shall consider the Perspective Plan for the academic development of the University, prepared by the Board of College and University Development. The said plan is prepared by the Board in exercise of its power under Section 3(2). Plans, both short-term and long-term, are prepared keeping in view the objectives of the University as laid down in the Act, and with due regard to the State and National Educational Policy. The responsibility to prepare the plan for development of the University is of the Board, as provided under Section 35 of the Act. It is important to bear in mind that the Senate comprises also of two Members of State Legislative Assembly and two Members of State Legislative Council elected by respective houses of State Legislature, of which they are members, besides various other experts in the field of education. Likewise, Managing Council, Academic Council and the Board of College and University Development comprise of experts in the field of education. The Perspective Plan, after it is prepared by the Board, is examined and sanctioned by the Academic Council and Management Council and thereafter by the Senate.
13. Bearing in mind the aforesaid provisions, the aims and objects of the Act and the language of Section 82, we have no doubt that proviso to Sub-section (5) of Section 82 admits of only one interpretation : that the State Government has no power to accord approval to an institution which is not within the Perspective Plan. This interpretation is also in consonance with preserving the autonomy of the University. It has to be borne in mind that University comprises of experts in the field of education. The interpretation sought to be placed by the State Government would have the effect of nullifying the Sub-section (2) and Sub-section (6) of Section 82. The interpretation placed by us would also be in consonance with the purpose which was sought and other similar Acts pertaining to different Universities.”
The aforesaid legal position has been reiterated in the later judgment of this Court in Navnirman Shikshan Prasarak Mandal v. State of Maharashtra reported in 2001(1) All MR 684. In paragraph 11 of the report, Dhananjay R. Kulkarni has been referred. Paragraph 11 of the report reads thus :–
“11. In the case of “Dhananjay R. Kulkarni and Ors. v. State of Maharashtra and Ors.” 1999(2) Mh.L.J. 323 a Division Bench of this Court (Y.K. Sabharwal, C.J. and A.P, Shah, J.) had an occasion to deal with the interpretation of Section 82 of the Act and it is inter alia held that (a) the applications for opening a new college or institution of higher learning, which is not in conformity with the perspective plan, cannot be considered by the university and the application for grant of such permission cannot be entertained directly by the State Government; (b) all the applications filed by the management within the period stipulated by Section 82(3), seeking permission to open new colleges or institutions of higher learning, are required to be scrutinised by the Board of College and University Development and forwarded to the State Government with the approval of the Management Council with such recommendations as are deemed appropriate by the Management Council; (c) such applications, which are not in conformity with the perspective plan and, thus, are outside the purview of the university for consideration, are also to be scrutinised by the Board of College and University Development and the same are also required to be forwarded to the State Government and (d) the State Government has no powers to accord approval to an institution which is not within the perspective plan.”
10. We hardly find substance in the submission of the learned Counsel for Nagpur University as well as respondent Nos. 3 and 4 that want of preparation of Perspective Plan cannot preclude the University from considering the applications for opening a new college or institution of higher learning. This argument is based on two grounds :–
(i) that preparation of Perspective Plan is a lengthy process and until such process is completed, the need of opening a new college or institution of higher learning in a particular area cannot be deferred, and (ii) the power is given to the Board of College and University Development under Section 36 of the Act of 1994.
11. Both the contentions are only noted to be rejected. Insofar as the first ground that preparation of Perspective Plan is a lengthy process and until perspective plan is prepared, need to open new college and institution cannot be deferred, suffice it to say that if a statute provides a thing to be done in a particular manner then that thing should be done in that manner or not done at all. Section 82 of Act of 1994 provides the complete procedure for permission for opening new college or institution of higher learning and before such permission could be granted, the procedure set down therein has to be followed. If the procedure as contemplated under Section 82 is not followed, it would provide unbridled power to the authorities to consider opening of the new college or institution of extraneous considerations and that cannot be permitted. Section 82 curbs the tendency of permission to open new college or institution which may be granted by the University or a State arbitrarily.
12. Insofar as second ground based on Section 36 of Act of 1994 is concerned, we hardly find relevance thereof in the light of the controversy raised before us. Section 36 only provides for powers and duties of Board of College and University Development which includes diverse aspects as suggested in Clauses (1) to (8) thereof but that does not absolve the authorities from following the procedure mandated by Section 82 for opening a new college or institution of higher learning.
13. Since the applications of respondent Nos. 3 and 4 were considered by University without there being perspective plan and forwarded to the State Government which too granted the permission without there being perspective plan prepared by University and approved by State Council for Higher Education for educational development, we are of the view that the permissions granted to respondents Nos. 3 and 4 suffer from gross contravention of the procedure provided under Section 82. The permissions granted by the State Government on 29-6-2001 and 14-7-2001 thus cannot be sustained.
14. We are informed at Bar that both respondents Nos. 3 and 4 have started new colleges as per the orders dated 29-6-2001 and 14-7-2001. The students having taken admission in the said colleges have to be saved for this academic year because of quashing of the orders dated 29-6-2001 and 14-7-2001 by us.
15. Accordingly, we dispose of the writ petition by following order :–
The orders dated 29-6-2001 (Annexure ‘A’) and 14-7-2001 (Annexure ‘C’) are quashed and set aside.
The students admitted by respondent Nos. 3 and 4 in the colleges opened by respondents 3 and 4 pursuant to the impugned orders dated 29-6-2001 and 14-7-2001 are permitted to pursue their studies in the said colleges for the academic year 2003-2004 and shall be entitled to take examination of their respective courses, if eligible.
We direct the respondent No. 2 Nagpur University to issue necessary instructions to other colleges to admit and adjust the students who would require admission in the next academic year.
No costs.