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IN THE HIGH COURT OF BOMBAY
Y.K. Sabharwal, C. J. A.P. Shah, JJ.
Shri Dhananjay R. Kulkarni others..... Petitioners.
Versus
State of Maharashtra others ..... Respondents.
Writ Petition No. 7170 of 1998, decided on 23-3-1999.
Advocates appeared :
V.P. Navare, for the petitioners.
C.J. Sawant, Adocate General with V.P. Malvankar, A.G.P., for respondent No. 1.
D.Y. Chandrachud, A.S.G. with Girish Kulkarni i/by Mrs. M.G. Kulkarni, for respond- ent No. 2.
Shekhar Ingavale with Ms. Revati Mohite-Dere, for respondent No. 3.
Prafulla B. Shah, for respondent No. 4.
Pramod J. Pawar, for respondent No. 8.
Section 82(5), Proviso-According of approval for starting new college or institution of higher learning-Power of State Government - Held, where application for approval not in conformity with perspective plan and also not recommended by University, State Government has no power to accord approval.-Bearing in mind the provisions the aims and objects of the Act and the language of Section 82, Court has 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 sub-section (2) and sub-section (2) and sub-section (6) of Section 82. The interpretation placed by it would also be in consonance with the purpose which was sought to be achieved for enacting the Act in place of the Bombay University Act, 1974 and other similar acts pertaining to different universities Court, thus, holds that the State Government has no power to grant permission for the starting of new college or institution of higher lean1ing, in cases where application is not in conformity with the Perspective Plan.
Sections 82(5), Proviso and 35 - Opening of new institution of higher learning-Application in the matter not in conformity with Perspective Plan cannot be considered by the University-Power of State Government to grant permission - Such application cannot be directly entertained by the State Government.-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. An application for grant of such permission cannot be entertained direction the State Government. Thus, such an application has necessarily to be routed through the University, the purpose being the examination of such an application by those who are experts in the field. The power of the State Government under the proviso to subsection (5) of Section 82 of the Maharashtra Universities Act is in respect of the applications which the considered and not recomn1cnded, and not in respect of the applications which are not even considered. 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. The permission granted by the State Government for starting Bachelor of Computer Science Course in exercise of power under proviso to sub-section (5) of Section 82 of the Maharashtra University Act, 1994 being illegal quashed, Despite the illegality of permission, the students who were admitted should not suffer and, therefore, it was directed that the students be allowed to take animation of the 1st Year of the B.5.C. Course, if they were otherwise eligible.
2.Respondents Nos. 3 to 8 are various colleges under the purview of University of Pune. The said university is respondent No. 2. State of Maharashtra is respondent No. 1.
3.The validity of the permission granted by respondent No. 1 to respondents Nos. 3, 4, 6 and 8 for starting Bachelor of Computer Science Course (B.C.S. Course, for short) is under challenge in this petition. The permission has been granted by respondent No. 1 in exercise of power under proviso to sub-section (5) of section 82 of the Maharashtra Universities Act, 1994 (for short, the Act). According to respondent No. 1, these colleges fall under the category of exceptional cases and valid and good reasons have been recorded for granting approval to the said colleges to start B.C.S. Course, though their applications were not recommended by the University. The State Government, it is claimed, has wide powers under the aforesaid provisions to grant permission to any institution, irrespective of whether the case of an institution is or is not in conformity with the Perspective Plan prepared by the University.
4.The Pune University, as provided under section 82(1), has prepared a Perspective Plan for Educational Development for 1997-2001. The plan is stated to have been prepared to ensure equitable distribution of facilities for higher education, having due regard for the needs of unserved and under-developed areas within the jurisdiction of the University. The plan was accorded sanction by the Academic Council and Management Council and was ratified by the Senate. The statement in the Perspective Plan mentions that it shall be updated, if necessary, after 5 years.
5.In respect of respondents Nos. 3, 4 and 8, it has not been disputed by the State that the applications of the said Colleges were beyond the perspective plan. It is also so stated in the communication sent by the University to the State Government under section 82(4) of the Act. The application of respondent No. 6 is within the perspective plan, but the recommendation of the Management Council in respect of this respondent, however was for grant of approval for Arts and Science College and denial of approval for Computer Science.
6.In respect of respondents No. 3, 4 and 8, besides stating that the said colleges did not come within the Perspective Plan, the communication of University also states that the approval was denied, since the said institutions do not have Science College.
7.Two questions arise for our consideration. The first question is whether the State Government has power to grant permission of opening of new institution, in exercise of power under proviso to sub-section (5) of section 82, despite the fact that the opening of the institution is beyond the Perspective Plan prepared by the University under sub-section (1) of section 82. The second question is, if such power vests with the State Government, on facts, could the cases of respondents Nos. 3, 4, 6 and 8 be termed as exceptional cases and whether reasons, as postulated by the said proviso, have been recorded. If the reasons were so recorded, whether the same are relevant or extraneous?
8.It would be useful to reproduce section 82 of the Act, which reads as under :--
"82. (1) The university shall prepare a Perspective Plan for educational development for the location of institutions of higher learning in a manner ensuring the 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 Academic Council and shall be placed before the Senate through the Management Council and shall be updated every 5 years.
(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 colleg
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